Redeeming Potholes

Consider constitutional redemption from the perspective of the government obligation to fill in potholes. Filling in potholes is an important government activity. People tend to regard government as legitimate when government fills in potholes and performs similar tasks effectively. Constitutions are designed so that government will be led by people who know how to fill in potholes or at least know who to call when a pothole needs filling in. The most important constitutional question in 2011, as Sandy Levinson never tires of reminding us, is whether the Constitution of the United States (or many state constitutions) provides a means of staffing the government and making rules that enables government to do a decent job filling in potholes.

The central problem constitutionalists must face is how can we get people who agree on the need to fill in potholes to cooperate when they disagree on same-sex marriage, affirmative action, prayer in public schools and other obsessions of American constitutional theory. Most constitutions rely on some combination of the following two strategies. The first is to come up with some compromise, deeply unsatisfying to everyone, which nevertheless enables people to believe they are better off cooperating and filling in the potholes, than standing on principle and confronting impassable streets. The second is for the constitution to combine vague generalities that each side can declare with some plausibility supports their position with a set of political procedures that prevent one side from imposing too much of their view on the other unless they have successful persuaded pretty much all relevant elites that they are correct.

Some times, the resulting constitutional politics permit us to talk about our differences over principle, with the winners being those who mobilize the most people. But sometimes we just have to live with each other. My spouse is not going to become a New York Giant football fan, my home office will always be a mess, the University of Maryland Law School (where I work) is not going to relocate to northern New England, the United States (where I live) is not going to place strong limits on how much money a person can make. Whether some ketubah, contract or constitution might be interpreted to require a different result is beside the point. Living with other people entails abandonment that redemption is likely to occur on your terms. The real constitutional question is whether we are better off living with the Tea Party or moving elsewhere (or following the sainted Abraham Lincoln, ordering troops to shoot those with whom we have a constitutional disagreement).

The constitution is redeemed in this view when our debates over all the constitutionally peripheral issues (slavery, fundamental human rights, basic dignity and equality of all human beings, etc.) do not interfere with government capacity to fill in potholes. By placing fundamental human rights at the core of constitutionalism, I think we reverse priorities. Constitutions are not about redeeming deep foundational principles. They are about potholes, the mundane things in our lives that we all agree government should do, and under a good constitution, government will do well.

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2 Responses

  1. A.J. Sutter says:

    The historical counterexample to this is “At least they made the trains run on time.” Certainly it’s too extreme to say that potholes are the core of what constitutions are about. But a more moderate take on your post — namely, that by privileging certain constitutional narratives we risk ignoring other, perhaps more fundamental, constitutional issues — resonates with me about the situation here in Japan.

    Current Japanese constitutional narratives focus on a very narrow range of issues, mainly: whether or not to amend the “peace clause” (Art. 9); individual human rights, especially relating to gender equality (Art. 14) and to criminal procedure; and the status of the Emperor and the Imperial succession. However, there are many glaring defects in democratic institutions, which, even when grumbled about (e.g. power of the unelected bureaucracy), few seem to attribute to defects in the constitution (Kempou). And most well-educated people I’ve met seem not to have been aware:

    ・that the rules for parliamentary elections (including whether a district will have multiple representatives or just one, campaign restrictions, etc.) are determined in a statute that can be, and routinely is, changed only at discretion of the parliament itself (Diet a/k/a Kokkai) — creating tremendous conflicts of interest
    ・that although the Supreme Court has, on multiple occasions, ruled elections unconstitutional because people in some (usually rural, pro-LDP) districts effectively have 3 or more votes per 1 person, it has never invalidated an election or required that it be done over
    ・that it’s virtually impossible for an ordinary citizen to run for office
    ・that it’s virtually impossible to organize a town hall meeting to hear candidates debate each other (most campaigning being done via loudspeakers from sound trucks, and from hand-waving and bowing sessions at subway station entrances)
    ・etc., etc.

    In fact, other than students in law faculties, Japanese students aren’t taught much about the Kempou at all, aside from the fact of its existence. And judging by my conversations with law profs and students here, constitutional law courses and scholarship are tightly focused on Art. 9 and human rights issues, not at all on democratic institutions (though I hope to be able to teach a comparative con law course on that topic next year).

    At least one Japanese legal scholar, Shigenori Matsui, does foreground some of these institutional issues, including in a recent book. And he does so BTW in what this symposium would call a “redemptive” context, i.e., in pointing out that the Kempou’s promises of popular sovereignty, of the Kokkai’s being the highest and sole legislative organ, and of the Japanese Supreme Court’s power of judicial review, are all unmet. It might not be coincidence, though, that he teaches at Univ. of British Columbia, rather than domestically. That most people in Japan, and even in law faculties, don’t pay much attention to these issues (to the extent they’re aware of them at all), is the result of the democracy constitutional narrative being crowded out by those relating to peace and individual rights — which is a point of contact with your post.

  2. Terry Harris says:

    For what it’s worth, I’m not sure that there’s agreement in my jurisdiction that filling potholes has risen to the level of mundane things that a government should do.