Democracy's Blueprints

Designing Democracy: What Constitutions Do

By Cass R. Sunstein. Oxford University Press. 304 pages $29.95

Since the collapse of the Soviet Union, constitutions
have been a major American export. Like French lieutenants carrying a field
marshal's baton in their rucksacks, many top-ten law professors have a draft
document for Klopstockia or Zembla tucked away on their hard drives, just in
case.

But knowledge of U.S. constitutional law is a curious qualification in a
designer of new systems. True, our constitution is now the oldest operative
written charter in the world. But its survival has not been a triumph of
design--in fact, quite the contrary. The Constitutional Convention of 1787 stands
as a sober warning that even the wisest architects may be unable to put a real
country with real people on any sort of rational structural footing. Despite the
talent and goodwill of its members--Thomas Jefferson called the convention an
"assembly of demigods"--the framers wrote into their product a series of
compromises, ad hoc improvisations, and simple mistakes that continue to provide
moments of awkwardness, crisis, and black comedy to their descendants. The
structure failed once in tragic fashion, leading to civil war; it continues to
generate farcical failures such as the recent presidential-impeachment effort and
the banana-republic struggle over electoral votes in Florida.

Strikingly, America's most enduring contribution to constitutionalism--the
practice of judicial review of laws to ensure conformity with the
Constitution--is not clearly provided for in the document itself. As much as
anything else, the academic discipline of constitutional law in this country is a
prolonged debate about the scope of this extratextual institution and of
Marbury v. Madison,
the 1803 decision that conjured judicial review into
being. Small wonder that the new democracies of the post-communist world--whose
practical concerns are far removed from disputes over export taxes and fugitive
slaves--in fact have drawn more from contemporary instruments like the German
constitution and its carefully and explicitly designed Constitutional Court.

Maybe we Americans don't really know what we're doing, but we've been doing it
a long time and perhaps can point out mistakes as well as make suggestions. From
1990 to 1997, Cass R. Sunstein was, in addition to teaching law and political
science at the University of Chicago, co-director of the university's Center on
Constitutionalism in Eastern Europe. The center, now at New York University,
monitored the process of constitutional growth in Eastern Europe (though it did
not consult with governments). In his new book of essays, Designing Democracy,
Sunstein gathers a number of lessons from his observations. His topics range
from the Internet and its implications for constitutional values to the emerging
jurisprudence of the Constitutional Court of South Africa. Most pieces have
appeared in different form in law journals; mercifully, Sunstein has reversed
virtually all of the stylistic havoc law-review editors are so good at wreaking.

The author's impressive body of work straddles the contested border between
constitutional law and political science. In books such as The Partial
Constitution
and Democracy and the Problem of Free Speech, Sunstein
has carved out a role as a leader of the academic movement for "civic
republicanism." Civic-republican theorists draw on classic political theory and
on the contemporary work of philosophers like Jürgen Habermas to envision
democracy in a way that goes beyond nose counting. They argue that the essence of
democratic self-government lies not in proper procedures or even in a commitment
to a set of protected individual rights but in genuine public deliberation. In
the deliberative model, citizens participate not as consumers or even up-and-down
voters but as sources of dialogue and argument; and decision makers give a full
account of their decisions in terms of public values and civic morality.

Designing Democracy reprises these arguments briefly and then tries to
apply them to a series of practical problems in American and comparative
constitutional law. Sunstein warns that he does not mean to "set out a
comprehensive account of deliberative democracy or of the relationship between
the idea of democracy and the idea of constitutionalism," but simply to discuss
"a series of particular questions about that relationship." That the resulting
essays are unevenly successful is not the fault of the theory or the theorist but
of the untidy world.

Political theory is exhilarating for the precise reason that law,
alas, is not. Theorists can think about how the world should be and come up with
a coherent answer. Lawyers dwell in the valley of incoherence. In fact, in the
strongest essay in the book, "Constitutional Principles without Constitutional
Theories," Sunstein discusses the ways in which lawyers and judges can bridge
social and political divisions through intentional ambiguity, which he calls
"incompletely theorized agreements." Such "agreements" commonly emerge from
multimember appellate courts, when a majority can agree what should happen but
not exactly why; the court produces a muddled opinion and moves on, leaving the
big fight for another day. The resulting confusion provides work for generations
of con-law geeks like myself, but is often mystifying to ordinary citizens. The
confusion, Sunstein argues, is an important way of preserving democracy: "If
participants in constitutional law disavow large-scale theories, then losers in
particular cases lose much less. They lose a decision but not the world."
Arguably, the worst thing about the current conservative majority of our Supreme
Court is the hideous coherence of some of its doctrines.

Sunstein, in fact, mounts an excellent attack on one of the pillars of this
Court's doctrine--the belief, argued most strongly by Justice Antonin Scalia,
that the Constitution is best interpreted as protecting traditional American
practices (what Sunstein calls a "preservative" theory) as opposed to providing a
basis to attack and reform them (a "transformative" perspective). The problem
with Scalia's view, Sunstein argues, is twofold. First, even in "originalist"
terms, America and its founding documents look to an ongoing process--the
fulfillment of our political and moral promises, stage by stage. Loyalty to the
past fits less easily into our national landscape than into, say, Britain's--or,
as Sunstein puts it: "A problem with Burkeanism for America is that Burkeanism
is, in crucial ways, un-American." The second problem is a deliberative one:
"When evaluated, specific traditions sometimes emerge as products of ignorance or
bigotry." Simply accepting traditions as authoritative spares courts the hard
work of interrogating and justifying longtime practices.

Political theory has its drawbacks, too; sometimes its proponents are tempted
to claim too much for it. Sunstein, seeking to ground "deliberative democracy" in
the Constitution, falls into this error when he writes that "the electors were
originally supposed to engage in deliberation, choosing the president
independently, with regard for the views of constituents but without at all being
bound by them... . And in the early days of the republic, the electoral college
did indeed function as a deliberative body." This is literally true--presidential
electors were expected to use their own judgment in choosing whom to vote for;
but it contains what philosophers call an equivocation, a midstream change in the
definition of a key term--for the "deliberation" modern theory calls for is far
more robust than anything electors were ever supposed to do. In fact, in
Habermasian terms--in terms, that is, of debating, giving reasons, and responding
to contrary views--the framers made quite sure that the electors didn't do
anything like deliberation. The "electoral college" is mentioned nowhere in the
Constitution, and the document further requires that electors assemble on one day
in their separate states, precisely to prevent one state's electors from
listening to another's and changing their minds. And deliberation, to be genuine,
must be iterative, as a body's members narrow differences among themselves. But
the electors vote once and once only and don't even count the votes themselves.
If no one wins the first ballot, the vote passes to the House, which genuinely
can deliberate.

Sunstein's theoretical discussion of secession raises other problems. He
argues that modern constitutions should not guarantee constituent parts of a
nation even a qualified right to secede, and he justifies this by suggesting that
the plausible reasons giving rise to secession are best addressed by other
constitutional mechanisms: "federalism, checks and balances, entrenchment of
civil rights and civil liberties, and judicial review." The political theory of
secession, it seems to me, is like the philosophy of death: It deals with
something so huge and uncontainable that no theory can adequately address it.
When a nation breaks apart, it is rarely because the constitution is flawed but,
rather, because the underlying social structure has come unraveled under
unforeseen stresses. Certainly that was the case in our own civil war; and the
mystery of secession in this country, still largely unsolved nearly a century and
a half after the fact, should make Americans cautious about drawing general
conclusions.

In addition, Sunstein offers an unintentionally ironic analogy
between constitutional union and American family law: "A decision to stigmatize
divorce or to make it available only under certain conditions--as virtually every
state in the United States has done--may lead to happier as well as more stable
marriages, by providing an incentive for spouses to adapt their behavior and even
their desires to promote long-term harmony." Just so, he suggests, "the
difficulty or impossibility of exit from the nation will encourage cooperation
for the long term, providing an incentive to adapt conduct and even preferences
to that goal." The "covenant marriage" theory of constitutionalism is original;
but if there's one subject that Americans have less to teach the world about than
secession, it's how to keep marriages together.

Still, at its best--as when discussing the South African Constitutional
Court--Designing Democracy is very good indeed. And even the lesser essays
fulfill their mission in deliberative terms; they are accessible (as is all too
little legal scholarship) and provoke the reader to agree or disagree and give
reasons. Perhaps the only real flaw in the book is that it does not include a
copy of Sunstein himself, shrink-wrapped and ready to rumble, so that the reader
can prolong the joys of dialogue.

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