The Constitution's Political Deficit
Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative branch will not be even remotely representative, and that the Executive branch will likewise, at least on occasion, fail to represent the will of the people. This democratic deficit ought to cause us concern. We should at least have the luxury of debating the point.Thus, I think Levinson's claim is essentially right, and I would like to make two friendly amendments to his proposal. There is, indeed, a worrisome democratic deficit in our own constitutional scheme. I suggest, however, that there are two additional problems with our constitutional practices, besides those Levinson has flagged for revision, that also impact detrimentally our democratic commitments. Echoing Levinson's framework, I would call the first of these two additional problems a "political deficit," and the second a "legal deficit." Our current dilemma exists not only because our written Constitution clearly tilts against representative democracy in the way Levinson decries. Our constitutional practices also tilt against politics, democratic or otherwise, and the ordinary law - legislation - that is its product. These political and legal deficits also deserve our critical attention.
Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA
Social movements change the ways Americans understand the Constitution. Social movement conflict, enabled and constrained by constitutional culture, can create new forms of constitutional understanding - a dynamic that guides officials interpreting the open-textured language of the Constitution's rights guarantees. To show how constitutional culture channels social movement conflict to produce enforceable constitutional understandings, I consider how equal protection doctrine prohibiting sex discrimination was forged in the Equal Rights Amendment's defeat. This story of the "de facto ERA" illustrates how constitutional culture can channel social movement conflict to produce little noticed socially integrative effects. As movement and counter-movement struggle to persuade (or recruit) uncommitted members of the public, each movement is forced to take account of the other's arguments, and in time may even begin to incorporate aspects of the other's arguments into its own claims - a dynamic that can transpire unconsciously or with the conscious purpose of strengthening arguments under conditions of adversarial engagement. Movement conflict also plays an underappreciated role in enabling judicial review. As adversaries hone their arguments to meet their opponent's most powerful claims, the quest to persuade creates areas of apparent or actual convergence in which the Court can decide cases. The ERA ratification debates led opponents to assert that the Fourteenth Amendment already contained sex equality principles that ERA proponents insisted should be added to the Constitution, and led proponents to separate concepts of sex equality under the ERA from abortion and gay rights which opponents charged the ERA would promote. Understandings consolidated in the ERA debate guided the Court as it ruled that sex discrimination violated the equal citizenship principle and as it limited the kinds of practices cognizable as sex discrimination. Examining how the ERA's proposal and defeat shaped the modern law of sex discrimination suggests that when social movement conflict is channeled by constitutional culture, it can guide officials in enforcing the Constitution in new ways, enabling constitutional change without lawmaking that nonetheless respects the distinction between politics and law. Constitutional culture provides the understandings and practices that citizens and officials draw on in debates about the Constitution's meaning, structuring the forms of communication and deliberative engagement among citizens and officials that dynamically sustain the Constitution's democratic authority in history.
REJOINDER TO BLOCK'S DEFENSE OF EVICTIONISM
I AM THANKFUL TO WALTER BLOCK (2010) for his comprehensive and perspicacious engagement with my critical remarks regarding his theory of evictionism (Wisniewski 2010). I also appreciate his kind words about what he sees as the merits and strong points of my argumentation. However, as one could easily surmise from my decision to write this rejoinder, I found his defense of evictionism unconvincing, though certainly informative and thought-provoking. Without further ado, let me now proceed to explaining why.