Designing Democracy: What Constitutions Do
By Cass R. Sunstein. Oxford University Press. 304 pages $29.95
Since the collapse of the Soviet Union, constitutionshave been a major American export. Like French lieutenants carrying a fieldmarshal's baton in their rucksacks, many top-ten law professors have a draftdocument for Klopstockia or Zembla tucked away on their hard drives, just incase.
But knowledge of U.S. constitutional law is a curious qualification in adesigner of new systems. True, our constitution is now the oldest operativewritten charter in the world. But its survival has not been a triumph ofdesign--in fact, quite the contrary. The Constitutional Convention of 1787 standsas a sober warning that even the wisest architects may be unable to put a realcountry with real people on any sort of rational structural footing. Despite thetalent and goodwill of its members--Thomas Jefferson called the convention an"assembly of demigods"--the framers wrote into their product a series ofcompromises, ad hoc improvisations, and simple mistakes that continue to providemoments of awkwardness, crisis, and black comedy to their descendants. Thestructure failed once in tragic fashion, leading to civil war; it continues togenerate farcical failures such as the recent presidential-impeachment effort andthe banana-republic struggle over electoral votes in Florida.
Strikingly, America's most enduring contribution to constitutionalism--thepractice of judicial review of laws to ensure conformity with theConstitution--is not clearly provided for in the document itself. As much asanything else, the academic discipline of constitutional law in this country is aprolonged debate about the scope of this extratextual institution and ofMarbury 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 ita long time and perhaps can point out mistakes as well as make suggestions. From1990 to 1997, Cass R. Sunstein was, in addition to teaching law and politicalscience at the University of Chicago, co-director of the university's Center onConstitutionalism in Eastern Europe. The center, now at New York University,monitored the process of constitutional growth in Eastern Europe (though it didnot 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 betweenconstitutional law and political science. In books such as The PartialConstitution 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 witha coherent answer. Lawyers dwell in the valley of incoherence. In fact, in thestrongest essay in the book, "Constitutional Principles without ConstitutionalTheories," Sunstein discusses the ways in which lawyers and judges can bridgesocial and political divisions through intentional ambiguity, which he calls"incompletely theorized agreements." Such "agreements" commonly emerge frommultimember appellate courts, when a majority can agree what should happen butnot exactly why; the court produces a muddled opinion and moves on, leaving thebig fight for another day. The resulting confusion provides work for generationsof con-law geeks like myself, but is often mystifying to ordinary citizens. Theconfusion, Sunstein argues, is an important way of preserving democracy: "Ifparticipants in constitutional law disavow large-scale theories, then losers inparticular cases lose much less. They lose a decision but not the world."Arguably, the worst thing about the current conservative majority of our SupremeCourt is the hideous coherence of some of its doctrines.
Sunstein, in fact, mounts an excellent attack on one of the pillars of thisCourt's doctrine--the belief, argued most strongly by Justice Antonin Scalia,that the Constitution is best interpreted as protecting traditional Americanpractices (what Sunstein calls a "preservative" theory) as opposed to providing abasis to attack and reform them (a "transformative" perspective). The problemwith Scalia's view, Sunstein argues, is twofold. First, even in "originalist"terms, America and its founding documents look to an ongoing process--thefulfillment of our political and moral promises, stage by stage. Loyalty to thepast 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 Burkeanismis, in crucial ways, un-American." The second problem is a deliberative one:"When evaluated, specific traditions sometimes emerge as products of ignorance orbigotry." Simply accepting traditions as authoritative spares courts the hardwork of interrogating and justifying longtime practices.
Political theory has its drawbacks, too; sometimes its proponents are temptedto claim too much for it. Sunstein, seeking to ground "deliberative democracy" inthe Constitution, falls into this error when he writes that "the electors wereoriginally supposed to engage in deliberation, choosing the presidentindependently, with regard for the views of constituents but without at all beingbound by them... . And in the early days of the republic, the electoral collegedid indeed function as a deliberative body." This is literally true--presidentialelectors 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 thedefinition of a key term--for the "deliberation" modern theory calls for is farmore robust than anything electors were ever supposed to do. In fact, inHabermasian terms--in terms, that is, of debating, giving reasons, and respondingto 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. Heargues that modern constitutions should not guarantee constituent parts of anation even a qualified right to secede, and he justifies this by suggesting thatthe plausible reasons giving rise to secession are best addressed by otherconstitutional mechanisms: "federalism, checks and balances, entrenchment ofcivil rights and civil liberties, and judicial review." The political theory ofsecession, it seems to me, is like the philosophy of death: It deals withsomething 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 underunforeseen stresses. Certainly that was the case in our own civil war; and themystery of secession in this country, still largely unsolved nearly a century anda half after the fact, should make Americans cautious about drawing generalconclusions.
In addition, Sunstein offers an unintentionally ironic analogybetween constitutional union and American family law: "A decision to stigmatizedivorce or to make it available only under certain conditions--as virtually everystate in the United States has done--may lead to happier as well as more stablemarriages, by providing an incentive for spouses to adapt their behavior and eventheir desires to promote long-term harmony." Just so, he suggests, "thedifficulty or impossibility of exit from the nation will encourage cooperationfor the long term, providing an incentive to adapt conduct and even preferencesto 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 thansecession, it's how to keep marriages together.
Still, at its best--as when discussing the South African ConstitutionalCourt--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.