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  • How Different is Writing Small from Writing Large?
  • Mark Tushnet (bio)

Adrian Vermeule, it turns out, is a “goo-goo.”1 That term was derisively applied by hard-headed politicians to Progressive-era reformers who offered a variety of good-government reforms that, the politicians said, had no chance of being adopted. The politicians were wrong, but for reasons that shed some light on Vermeule’s enterprise. Vermeule begins Mechanisms of Democracy by distinguishing between his concerns—how democratic institutions might operate in the small—from the concerns of others who write about constitutional design “writ large,” such as the choice between a parliamentary and a separation-of-powers system. Large-scale choices are not presently available: The large-scale institutions we have—and indeed the institutions that virtually everyone not emerging from some conflict situation have—“are not going anywhere.”2

Vermeule asks us to focus on small-scale reforms, to be considered by a “second-order assembly of democrats.”3 As a theorist—or a goo-goo reformer—Vermeule says that he is entitled to “ignore political constraints” on his proposals’ adoption.4 Taking such constraints into account would amount to a form of self-censorship and would eliminate the possibility that a theorist might come up with small-scale reforms that could “slip past the political constraints on reform” because they incur no “prohibitive costs of enactment and transition.”5

I suggest that Vermeule’s reform efforts are less distinct than he asserts from the large-scale design questions he puts to one side. Consider as a brief introduction his idea that a multi-member court be allowed to set aside agency decisions only by a super-majority vote.6 I doubt that that proposal is any more likely to slip past political constraints than, for example, the elimination of life tenure for federal judges. Yet the latter certainly has the feel, at least to me, of a large-scale design change.7 Decision by majority vote among judges, it seems to me, is just as constitutive of “court-ness” in the U.S. constitutional system as is life tenure in the federal judicial system.8 To adopt Vermeule’s reform would, I think, require the kind of constitutional moment or mobilization that can also produce larger-scale changes.

Indeed, that may be the lesson the Progressives taught the politicians. The Progressive Era was one in which political mobilization produced discrete changes that cumulatively amounted to a constitutional transformation. The mere fact that the reforms were good ideas (if they were) did not lead to their adoption. Relatively large-scale political efforts over the long term did. The same may be true with respect to some (many?) of Vermeule’s proposals, in which case the distinction he draws between constitutional design writ large and small may be thinner than he suggests.

I focus on one reform to which Vermeule directs attention early in the book, the creation of a congressional “Office for Constitutional Issues.”9 According to Vermeule, “the fact that [the British] Parliament has set up a similar body . . . is a first step towards dispelling concerns about feasibility.”10 Here “feasibility” refers not to issues relating to identifying who might staff such an office and who would find its advice helpful, although those issues are important, but rather to political feasibility: The similarities between the proposed office and the British Parliamentary Joint Committee on Human Rights (PJC) “make[] it implausible that the former would be politically out of bounds while the latter was actually adopted.”11 This overlooks several points, some of which Vermeule identifies in other settings. First, as I will briefly outline, Vermeule’s proposal is complex. Second, its complexity raises the possibility that, understood as a small-scale reform proposal, it might be self-defeating in a sense Vermeule identifies. Third, the analogy to the PJC is weakened by some aspects of British governmental organization and, more important, by the place occupied in British constitutional history by the PJC’s creation, which was part of a wave of constitutional reforms in Great Britain from the 1980s through the 1990s, equivalent in scope to the constitutional revisions that occurred in the United States during...

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Additional Information

ISSN
1538-9731
Print ISSN
1089-0017
Pages
pp. 16-20
Launched on MUSE
2009-08-21
Open Access
No
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