BELLING THE PARTISAN CATS: PRELIMINARY THOUGHTS ON IDENTIFYING AND MENDING A DYSFUNCTIONAL CONSTITUTIONAL ORDER MARK A. GRABER∗ INTRODUCTION ............................................................................................... 611 I. DYSFUNCTIONAL CONSTITUTIONS AND CONSTITUTIONAL ORDERS ... 618 II. THE VIEW FROM MIDCENTURY: A CONSTITUTIONAL SUCCESS STORY.................................................................................................. 628 III. THE VIEW FROM THE PRESENT ............................................................ 639 A. A Dysfunctional Constitutional Story .......................................... 640 B. Moving On ................................................................................... 644 INTRODUCTION Proponents of constitutional reform in the United States maintain that constitutional change must be initiated from outside the regular channels of constitutional politics.1 In his book, Our Undemocratic Constitution, Professor Sandy Levinson, the most prominent champion of constitutional revision or replacement,2 first argues that certain provisions in the U.S. Constitution prevent governing officials from making coherent policies that are responsive ∗ Professor of Law, University of Maryland Francis King Carey School of Law. Much thanks to Sandy Levinson, Jack Balkin, Jim Fleming, and other participants in this Symposium for their advice. Special thanks to the members of the Boston University Law Review for the editorial assistance and help preparing this manuscript for publication. 1 See SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 23-24 (2006) (discussing the inability to achieve needed constitutional reforms through textually defined mechanisms, and how this inability creates a necessity for external reforms); LARRY J. SABATO, A MORE PERFECT CONSTITUTION: IDEAS TO INSPIRE A NEW GENERATION 225-32 (2007) (arguing that constitutional reform must come from methods such as mock and actual constitutional conventions, as well as internet debate, while discussing how political gridlock makes congressional amendments implausible and proposing twenty-three reforms to improve constitutional functionality). 2 See SANFORD LEVINSON, FRAMED: AMERICA’S FIFTY-ONE CONSTITUTIONS AND THE CRISIS OF GOVERNANCE 391-93 (2012) (“We need a new constitutional convention, one that could engage in a comprehensive overview of the U.S. Constitution and the utility of many of its provisions to twenty-first century Americans.” Id. at 391.); LEVINSON, supra note 1, at 168-80 (discussing the need for a referendum to revise substantially or even replace the U.S. Constitution and the potential to achieve significant reform within the confines of Article V). 611 612 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:611 to the concerns of popular majorities or to the citizenry in general.3 He also observes that the resulting deformed ordinary politics is incapable of taking the steps necessary to correct these and other clearly identified constitutional flaws.4 For this reason, Levinson calls for a national constitutional convention, the members of which would be chosen by lottery.5 This would prevent the selection of “single-issue zealots who might . prevail in elections,” as elections are generally held in the United States at present.6 The delegates to the proposed convention would then be expected to write a new constitution for the American people to ratify.7 Other contemporary calls for a constitutional convention or constitutional reform similarly seek an escape from ordinary politics. Each reformer insists that the constitutional convention or referendum be structured in ways to make deliberations immune to the ills afflicting the contemporary electoral and governance processes in the United States. Larry Sabato proposes to escape the pathologies of contemporary politics by having Congress propose rules for the convention and the selection of delegates that will make the convention immune to the ills that presently afflict Congress.8 Akhil Amar proposes to escape the pathologies of contemporary politics by either a national referendum on constitutional amendments or a new constitution.9 Richard Labunski believes that the internet will enable Americans interested in a second constitutional convention to maneuver around the pathologies of contemporary politics.10 Political parties are conspicuously absent from the project of constitutional reform. Under Levinson’s model, citizens discuss the 3 See LEVINSON, supra note 1, at 6-9 (“We must recognize that a substantial responsibility for the defects of our polity lies in the Constitution itself.” Id. at 9.). 4 See id. at 171 (“Given the central thesis of this book, it would be almost self- contradictory to say that the remedy to our most basic ills lies in ordinary politics.”). 5 LEVINSON, supra note 2, at 391-93. 6 Id. at 392. 7 See id. at 391-93. 8 SABATO, supra note 1, at 205-16. 9 Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside of Article V, 55 U. CHI. L. REV. 1043, 1044-46 (1988) (“I believe that the first, most . important, if unenumerated, right of the People is the right of a majority of voters to amend the Constitution—even in ways not expressly provided for in Article V.”). 10 RICHARD LABUNSKI, THE SECOND CONSTITUTIONAL CONVENTION: HOW THE AMERICAN PEOPLE CAN TAKE BACK THEIR GOVERNMENT 6 (2000). Specifically, Lubinky argues: [T]hrough new communication technology such as the Internet, and more traditional forms of mass media, the American people can organize a series of meetings – beginning at the congressional district or county level, then moving on to a state convention, and finally culminating in a national ‘preconvention’ in Washington, D.C. – where petitions can be written to give to state legislators . [which] will propose a subject area for a constitutional amendment and will ask legislators to forward them to Congress. Prior to the Internet, such an undertaking would have been almost impossible. Id. 2014] BELLING THE PARTISAN CATS 613 Constitution on their own initiative at potluck dinners and engage in petition drives.11 When Sabato’s Members of Congress make rules for the constitutional convention, they do so as Americans rather than as Democrats and Republicans.12 Labunski’s websites substitute for partisan organization.13 Democratic and Republican Party elites, apparently aware that constitutionally induced polarization and hyperpartisanship are central to contemporary constitutional dysfunctions, are assumed to facilitate (or at least not interfere with) grassroots efforts to break the stranglehold that the two major political parties have on contemporary constitutional politics.14 These well-intentioned calls for nonpartisan constitutional conventions or referendums suffer the same difficulties that befell the mice who sought to bell the proverbial cat. Each proposed solution can be implemented only if the problem is either assumed away or largely resolved before the proposed solution is implemented. The mice can bell the cat only if the cat will, for unknown reasons, not bother the mice during the belling process or if the mice find some other means for neutralizing the threat of the cat during the belling process.15 A nonpartisan constitutional convention can resolve the problems created by hyperpartisanship and polarization only if that polarization will for unknown reasons not influence the process used to create and staff the convention, or if Americans find some other means of neutralizing the harms caused by polarization while establishing the constitutional convention. A nonpartisan constitutional referendum will not be beset with polarization and hyperpartisanship only if constitutional reformers first successfully find a way to mitigate substantially the constitutional problems that polarization and hyperpartisanship cause. If Americans successfully overcome polarization when creating the nonpartisan constitutional convention or referendum, however, then they have demonstrated that they can resolve the problems that polarization causes without formal constitutional reform. Acknowledging that 11 LEVINSON, supra note 1, at 173-74 (proposing a constitutional convention generated from citizen-driven dialogue and petition drives to offer substantially more equal representation by population than exists in the current congressional system). 12 See SABATO, supra note 1, at 205-08 (describing his expectation that Members of Congress would reach political consensus on ground rules for a constitutional convention “lest their constituents take revenge on them at the ballot box”). 13 See LABUNSKI, supra note 10, at 231-44 (“[A] growing number of campaign strategists believe the Internet is likely to become a genuinely important political tool by the 2000 presidential election.”). 14 See id. at 242-46 (discussing the difficulties that political advocates who use the internet to seek reform will face, including cost, political hostility, and possible legal action); SABATO, supra note 1, at 9-10 (“Many of our nation’s most prominent elites will resist such an approach. Some sincerely and others conveniently believe that a Constitutional Convention [made possible by the internet] would become ‘runaway’ and enact destructive changes from the far right or left.”). 15 See AESOP, The Mice in Council, in AESOP’S FABLES 2 (V.S. Vernon Jones trans., Avenel Books 1912) (1484). 614 BOSTON UNIVERSITY LAW REVIEW [Vol. 94:611 political success, a nonpartisan