Upcoming Boston University Law Review Symposium: America’s Political Dysfunction, Constitutional Connections, Causes, and Cures

On November 15-16, 2013, the Boston University Law Review is hosting a terrific symposium entitled “America’s Political Dysfunction: Constitutional Connections, Causes, Cures.”

In recent years and especially in recent months, many have despaired over America’s political dysfunction. A conference at University of Texas asked, “Is America Governable?” Some, like Mann and Ornstein, have contended that “it’s even worse than it looks.” Others, like Levinson, have claimed that we face a “crisis of governance.” Schlozman, Verba, and Brady have criticized “the broken promise of American democracy,” Gutmann and Thompson have lamented the breakdown in “the spirit of compromise,” and Lessig has argued that we have “lost” our republic through the corruption of money.


More generally, there is considerable talk of dysfunction, breakdown, and failure in the air these days. Just consider these titles: Bruce Ackerman, The Failure of the Founding Fathers, not to mention The Decline and Fall of the American Republic; Ronald Dworkin, Is Democracy Possible Here?; Alan Wolfe, Does American Democracy Still Work?; and Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), along with Framed: America’s 51 Constitutions and the Crisis of Governance.

BU Law Review is hosting a conference that will assess such claims about dysfunction, breakdown, and failure. But unlike some prior conferences, it will focus on constitutional connections, causes, and cures. Taking up the forms and manifestations of dysfunction, breakdown, and failure, the conference will ask “What, if anything, does the Constitution have to do with all this?” For example, are we experiencing a constitutional failure, as distinguished from a moral failure, a political failure, an institutional failure, or a failure of policy that may or may not be directly related to the Constitution? Are the lamented dysfunction, breakdown, and failure caused by the Constitution? Do they stem from a feature or defect of the Constitution? Do they result from constitutional requirements? Are they made more likely by our constitutional design?

The conference will address not only whether there are such constitutional connections to and causes of dysfunction, but also whether any proposed cures would likely alleviate it. For example, Putnam has proposed building social capital. Sandel and Ackerman have called for reinvigorating the civic and deliberative dimensions of political and constitutional discourse and practice. Seidman has proposed “giving up on the Constitution.” Levinson, Lessig, and Sabato have proposed amending the Constitution or holding a constitutional convention to adopt a new one. Will such proposals alleviate dysfunction or will the conditions giving rise to them virtually insure that they will fail?

The papers and proceedings will be published in Boston University Law Review.

This conference will take place in Barristers Hall. All – including not only professors, law students, graduate students, and undergraduates, but also alumni and the general public – are welcome to attend. To register, please contact Elizabeth Aggott, Events & PR Manager, at lawevent@bu.edu. If you have academic questions about the program, please contact Professor James E. Fleming at jfleming@bu.edu.

Friday, November 15

9:15 a.m.-9:30 a.m.: Welcome and Introduction

9:30 a.m.-11:00 a.m.

I. Is dysfunction an illusion? Is all the talk about dysfunction misconceived? Perhaps this is simply how our constitutional system operates. Or maybe we are instead in a period of transition. If so, to what?

Sotirios Barber, University of Notre Dame Department of Government
Mark Graber, University of Maryland School of Law
Gerald Leonard, Boston University School of Law
Nancy Rosenblum, Harvard University Department of Government

11:15 a.m.-12:30 p.m.

Keynote Address: Cass Sunstein, Harvard Law School

12:30 p.m.-1:30 p.m.: Lunch

1:30 p.m.-3:00 p.m.

II. Is the Constitution responsible for electoral dysfunction? (Not only through its provision for the electoral college but also through its failure affirmatively to guarantee an equal voice in the national political process and prevent the corruption of money and hyperpartisan gerrymandering?)

Hugh Baxter, Boston University School of Law and Department of Philosophy
Guy-Uriel Charles, Duke University School of Law
Joseph Fishkin, University of Texas School of Law
Ellen Katz, University of Michigan Law School
Kay Schlozman, Boston College Department of Political Science, & Sidney Verba, Harvard University Department of Government

3:15 p.m.-4:45 p.m.

III. Has the Constitution exacerbated the crisis of governance? (Have what Levinson calls the “hard-wired features” of the structural Constitution made America not only undemocratic but indeed ungovernable? Have they fostered the politics of extremism? Have they somehow undermined the spirit of compromise?)

Jack Beermann, Boston University School of Law
Douglas Kriner, Boston University Department of Political Science
R. Shep Melnick, Boston College Department of Political Science
Stephen Skowronek, Yale University Department of Political Science
Jay Wexler, Boston University School of Law

5:00 p.m.-6:30 p.m.

IV. Has the Constitution fostered a pathological rights culture of rights without responsibilities and regulation? The case of the right to bear arms and gun control.

Joseph Blocher, Duke University School of Law
Robert Cottrol, George Washington University Law School
James Fleming & Linda McClain, Boston University School of Law
Richard Thompson Ford, Stanford Law School
Robin West, Georgetown University Law Center

Saturday, November 16

9:00 a.m.-10:45 a.m.

V. Utopia as Dystopia? (Have we reached a dysfunctional situation in which disagreement about constitutional visions is so fundamental that one side’s ideal is the other’s nightmare, and vice versa? The case of radically opposed visions of federalism: a mini-symposium on Sotirios A. Barber’s The Fallacies of States’ Rights and Michael Greve’s The Upside-Down Constitution).

Sotirios Barber, University of Notre Dame Department of Political Science
Michael Greve, George Mason University School of Law
David Lyons, Boston University School of Law and Department of Philosophy
Abby Moncrieff, Boston University School of Law
Larry Yackle, Boston University School of Law

11:00 a.m.-12:30 p.m.

VI. Are the American Constitution and constitutional experience exceptional when it comes to dysfunction? What can we learn from other nations’ constitutions and constitutional experiences?

Yasmin Dawood, University of Toronto Faculty of Law
Ran Hirschl, University of Toronto Department of Political Science and Faculty of Law
Mark Tushnet, Harvard Law School
Graham Wilson, Boston University Department of Political Science
Katharine G. Young, Boston College Law School

12:30 p.m.-2:00 p.m.

Lunch Address: Jack Balkin, Yale Law School

2:00 p.m.-3:30 p.m.

VII. What are we to do about dysfunction? Proposed cures and their constitutional connections.

Richard Albert, Boston College Law School
Ken Kersch, Boston College Department of Political Science
Gary Lawson, Boston University School of Law
Sanford Levinson, University of Texas School of Law
Frank Michelman, Harvard Law School

 

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8 Responses

  1. Brett Bellmore says:

    Is there going to be anyone involved advocating the position, which in truth is a quite common one, that the problem is not the Constitution, but that it’s being violated? That the problem is that the federal government has grown vast beyond any legitimate role in society thanks to a judiciary rationalizing ever more usurpations of power, and this swollen federal government is the source of the dysfunction, not the last tattered limitations on it’s power?

  2. Shag from Brookline says:

    I don’t know if Brett bothered to read “below the fold” setting forth many questions to be considered by the various panels, speakers, etc. But it is clear that various aspects will be discussed. The conference faculty is quite varied and based upon my experience at attending legal conferences and/or reading about then in law reviews, there should be extensive disagreements on the questions raised. But Brett feels obliged to express his simpletonian views and judgments in advance in his manner as an anarcho-libertarian. As America has grown since 1787, government has had to grow to keep up with itself as well as to be prepared to compete/lead/defend itself in a world that requires more and more interdependence.

  3. Brett Bellmore says:

    Yes, it’s clear that various aspects will be discussed. I’m simply asking if there will be anybody there who will discuss them from a particular, quite mainstream, viewpoint.

    Wouldn’t be the first conference where the outcome was decided in advance, by making sure everybody participating already agreed.

  4. Shag from Brookline says:

    Perhpa Brett can define his:

    ” … a particular, quite mainstream, viewpoint.”

    I don’t think a self-professed anarcho-libertarian has a mainstream viewpoint.

    And Brett assumes that the outcome of the conference has been decided in advance, further assuming that ” … by making sure everybody participating already agreed.” What does Brett base these assumption on? All the panelists, speakers, etc, have agreed? There is a diversity of constitutional scholars/political scientists participating. To get them to agree in advance would be tougher than herding cats. There are avowed originalists, avowed non-originalist, mugwamp originalist/living constitutionalists, many not committed to either originalism or non-originalism. Brett can continue with simpletonian “dead-hand” but he may be playing solitaire. I don’t know if any of the participants fits the anarcho-libertarian mode, but some may be different sorts of libertarians. Perhaps Brett should attend to attempt to verify his assumptions or await the BU Law Review issue covering conference presentations/discussions. What was it Oscar Wilde said “When you assume ….”

  5. Brett Bellmore says:

    “And Brett assumes that the outcome of the conference has been decided in advance”

    Is that what you do when you ask a question? Assume the answer? Because it isn’t what *I* do when I ask a question.

    “There is a diversity of constitutional scholars/political scientists participating. To get them to agree in advance would be tougher than herding cats.”

    But simply choosing people who already agree on some particular point requires no herding at all. And it happens, occasionally. Which is why I asked whether a particular viewpoint, far more common than my own anarcho-capitalism, had been excluded.

    Because it’s not a viewpoint that appears to be expressed in anything I see above.

  6. Shag from Brookline says:

    Brett still doesn’t inform us just what is:

    ” … a particular viewpoint, far more common than my own anarcho-capitalism … ” [Did brett intend “capitalism” as opposed to “libertarian”?]

    he thinks or claims or assumes has been excluded. Without knowing what viewpoint he says doesn’t appear ” … to be expressed in anything I see above.” how do we know what he is talking about? Perhaps Brett is playing the Humpty-Dumpty role from Alice in Wonderland.

    And Brett’s:

    “But simply choosing people who already agree on some particular point requires no herding at all.”

    is close to an accusation by Brett that that that is what has been done for this conference. Whether such has been done for other conferences is irrelevant. If Brett has facts, he should recite them.

  7. Brett Bellmore says:

    “Brett still doesn’t inform us just what is:”

    What, you mean aside from having informed you what it was in my very first comment? Which you seem to have reacted to without actually, you know, reading.

    And what facts do I need to recite, there’s the description of the conference in the post. That’s the recital right there.

  8. Shag from Brookline says:

    Yes, I did read Brett’s #1 in the form of questions. I did respond in my #2 [no jokes,please!] to the growth of the federal government. Of course this is a common complaint of conservatives and especially their Tea Party base and other libertarians of various kinds. I could have pointed out the Tea Party’s challenge to Obama’s candidacy for reelection “Don’t touch my Medicare.” Of course Medicare is a large part of the federal government, which apparently the Tea Party is happy with. Based upon the demographic make-up of Tea Partiers, they presumably want the government (read, Obama) to keep its hands off their Social Security as well. And of course Social Security is a large part of the federal government , which apparently the Tea Party is happy with. So is the large size of the federal government the mainstream problem that Brett feels is being ignored by this conference? Upon examination, it is not as simpletonian as Brett suggests in the form of weasly questions.

    I did not respond in my #2 to Brett’s blaming of the judiciary for this growth in the federal government. The judiciary is involved pursuant to the Constitution per Article III. But so is Congress and the Executive. The growth of the federal government did not result overnight, and such growth occurred under both Republican and Democrat Congresses and Executives. Perhaps Brett does not believe there is dysfunction. The second paragraph of this post sets forth a background. Perhaps Brett is unfamiliar with Mann (Brookings) and Ornstein’s (AEI) writings on “alleged” political dysfunction, or of other conferences that addressed political dysfunction. Much more perhaps can be said about political dysfunction but this conference chose another mode set forth in the fourth paragraph of this post which bears repeating:

    ***

    BU Law Review is hosting a conference that will assess such claims about dysfunction, breakdown, and failure. But unlike some prior conferences, it will focus on constitutional connections, causes, and cures. Taking up the forms and manifestations of dysfunction, breakdown, and failure, the conference will ask “What, if anything, does the Constitution have to do with all this?” For example, are we experiencing a constitutional failure, as distinguished from a moral failure, a political failure, an institutional failure, or a failure of policy that may or may not be directly related to the Constitution? Are the lamented dysfunction, breakdown, and failure caused by the Constitution? Do they stem from a feature or defect of the Constitution? Do they result from constitutional requirements? Are they made more likely by our constitutional design?

    ***

    As I noted earlier in this comment, the judiciary acts under the Constitution. While favorability of the judiciary has declined in recent months, it is still much higher than that of Congress, which is so low that it even makes Obama’s declining favorability look good in comparison. Since all three act under the Constitution, what is wrong with the approach of this conference in looking at an aging Constitution to consider its role in political dysfunction? If Brett wants some other approach, let him start his own “Dilbertian” conference. But Brett in effect is accusing this conference of being rigged, as noted in my #4 and #6 comments. What facts does Brett base this upon? Does he truly know that the many participants walk in an agreed upon lockstep? Those are the facts Brett needs to recite. And what if there is some sort of a conclusion from the conference that the Constitution does contribute to political dysfunction? Surely there may be minority views, especially as to solutions that might be proposed.

    This conference was not designed with any input from me; if I were asked, I might have come up with some suggestions. But I have no quarrel with the conference agenda and look forward to it and its results. I may disagree with the results but the effort to torpedo this conference by a self-described anarcho-libertarian is a dud.