"reflection and Choice": a One-time Experience?

• Publication year: 2021

92 Nebraska L. Rev. 239. "Reflection and Choice": A One-Time Experience?

"Reflection and Choice": A One-Time Experience(fn1)

Sanford Levinson(fn*)

I am absolutely delighted, as well as obviously honored, to be asked to deliver this year's lecture honoring the career of former Lincoln native and Nebraska College of Law Dean Roscoe Pound. One could speak of many facets of his career, one of the most important in the first half of the twentieth century. I want to draw a certain inspiration from one of his most famous interventions in public debate, his 1906 address to the American Bar Association on "The Causes of Popular Dissatisfaction with the Administration of Justice."(fn2) I will not be speaking today specifically about the administration of justice, at least in the sense that Pound used it to refer to the justice administered by courts. Much of my recent work has been motivated, however, by "popular dissatisfaction" with the operation of our political system, particularly at the national level.

I began my most recent book, Framed: America's Fifty-One Constitutions and the Crisis of Governance,(fn3) with a litany of quotations from

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a variety of pundits and analysts across the political spectrum who describe the contemporary national political system as "dysfunctional" or even, as New York Times columnist Thomas L. Friedman put it, "pathological."(fn4) A variety of recent polls conducted since I finished that book about fourteen months ago certainly suggest a similar and continuing public perception. For example, as I write these remarks at the end of July 2013, a compilation of polls taken throughout the month indicated that approximately 16% of the public "approved" of Congress, while a bit over 76% "disapproved," a gap of 60%.(fn5) As a matter of fact, Congress has generally not enjoyed majority approval since 1998; interestingly enough, the temporary high of over 80% was reached in the halcyon days immediately after September 11, 2001, nearly doubling the approval rate of only 42% in a poll completed on September 10.(fn6) Since then, it has literally been downhill so far as the slope of approval is concerned. The current approval rate of nearly 15% is actually a quite dramatic jump, in one sense, from August 2012, when the Gallup Organization noted that the number had reached a "historic low" of 10%.(fn7)

President Obama does considerably better. According to Gallup, he entered Inauguration Day of 2013 with a 50% rate of approval.(fn8) He has lost some support since then, receiving the "approval" of approximately 45% at the end of July. Even the Supreme Court, which traditionally has scored the highest of our three basic institutions in popular approval, is seemingly near historic lows. A Gallup poll taken in mid-July 2013 found a 43% approval rate for the Court, with 46% disapproving.(fn9) This represents a slight drop from the 46% approval level (with 45% disapproving) in July 2012, shortly after the Court's decision upholding the insurance mandate in the case testing the constitutionality of "Obamacare."(fn10) One should not overestimate the importance of the relatively small differences among the various polling

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agencies, which can depend on a variety of vagaries ranging from basic methodology to the specific days the polls were taken. That being said, it should be difficult for anyone actually devoted to the institutions in question to take much comfort from the data, even if President Obama and members of the Supreme Court can emphasize how much better they are doing, relatively speaking, than Congress.

If one looks at the answers given in April 2013 to the question of how well things are going in the country today, exactly half of the answers say "pretty badly or very badly" while only 7% say "very well."(fn11) Perhaps one can take comfort in the fact that 7% represents a doubling of the 3% who a month earlier deemed the country doing "very well," but surely this is cold comfort indeed. Or consider the responses to another Gallup poll asking, "How much of the time do you think you can trust government in Washington to do what is right-just about always, most of the time, or only some of the time?" At least in 2010, only 19% said "always/most of the time," while 81% offered a more pessimistic answer.(fn12)

Still, what does one make of this data? I have suggested, for example, not altogether kiddingly, that King George and the British Parliament might have registered better numbers in 1775, but so what, even if that is true? No one believes the United States is even close to a "revolutionary" situation. Indeed, what is most striking is the remarkable docility of the American public. Disruptions by members of the Tea Party of "town meetings" in 2010 brought forth anguished discussion of the demise of "civility,"(fn13) though, frankly, they were extraordinarily minor as genuinely radical protests go. And the left is almost completely quiescent; the various "Occupy" movements, after a brief flurry, seem to have faded without leaving any trace in American politics (unlike the Tea Party).(fn14) I recently organized a major conference at the University of Texas around the question, "Is America Governable?" One's answer, of course, depends in part on the definition he or she gives to "governability." If "governability"-or what we might even call the "state of the Union"-is measured by docility and acquiescence to what government does, even if one finds it objectionable or even wretched, then the state of the Union is just fine. One looks around the world and finds, for example, more marching in the

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streets or disruptive strikes even in the countries we identify as part of "democratic Western Europe."(fn15)

But does quiescence equal "popular dissatisfaction" or, perhaps more ominously, simply the belief that nothing can be done? Perhaps we believe, as did Pound,(fn16) that elemental justice requires that we confront, at least intellectually, the inadequacies of either our system of justice or of the wider political system. Perhaps more cynically, as suggested by Richard Posner's conservative defense of an at least modestly redistributive welfare state,(fn17) we might believe that we can't afford to take the risk that the measured dissatisfaction, if not confronted and alleviated by necessary reforms, will generate much more ominous forms of protest, as well as social and political disruption, even if that is absent today.

So, let me place my own reformist cards on the table. I believe that at least some of our present discontents can be traced directly to the dysfunctionalities generated by the Constitution of 1787. Consequently, I strongly favor a new national constitutional convention that could, for the first time in 225 years, subject the Constitution drafted and ratified in 1787-1788 to rigorous review. In calling for a conven-tion-and thinking of the kinds of issues that might be on the table-I take inspiration from the history of the American states, very much including Nebraska. I have come to believe that no one should be allowed to graduate from law school without reading a fine book by John Dinan, a political scientist now teaching at Wake Forest University, titled The American State Constitutional Tradition .(fn18) The point that Dinan makes, and that I incorporate into the title of my own book, is that it is a grievous error to focus exclusively on the single example of the United States Constitution and wholly ignore, as is commonly the case in far too many law schools, the existence of the fifty other state constitutions and the lessons they might teach us.(fn19) Perhaps the most important single lesson, beyond the discovery that there is significant

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variation in the way that some of our basic institutions can be organized, is the extent to which state constitutions are far more demo-cratic-and therefore open to change-than is the national Constitution.(fn20) Even a modest encounter with state constitutions immediately challenges any facile notion that "Americans believe" in a single notion of how best to organize government and actually carry out the important norm of achieving government by "consent of the governed."(fn21)

Political scientists sometimes refer to the "n-of-1" problem,(fn22) by which they refer to the difficulty of generalizing from single examples. Sometimes, to be sure, that is the best one can do, but one should usually strive to maximize the number of genuinely comparable examples before making confident declarations about what the evidence demonstrates. Nowhere is this problem more exemplified than in the facile comments we often make about "American constitutionalism" because we look exclusively at only one of the constitutional data sets available to us.

Nebraska is of particular importance to me for two reasons. As everyone here knows extremely well, Nebraska has seemingly governed itself quite well for over seventy-five years with only the single Unicameral.(fn23) I think it is unfortunate that Nebraska remains unique among the American states in doing so. If one takes seriously the notion that a virtue of federalism is that states can become "little laboratories of experimentation," in Justice Brandeis's oft-quoted term,(fn24) then one should ask about the actual extent to which states learn from one another and change their own policies or even constitutions in accordance with what has been learned from some other...