Tom Ginsburg on the Benefits of Slow Government

Saving Baby Madison

When one of our keenest observers of constitutional law and politics speaks of a constitutional crisis in the United States, we would do well to pay attention. Sandy Levinson defines the concept quite broadly: he sees a crisis not simply as a fundamental dispute about constitutional meaning or action, but rather as occurring whenever constitutional structures are unable to meet the exigencies of the day. In such moments, Levinson sees two unattractive choices: we can either develop (un-)constitutional workarounds that lead to pragmatic accommodation but may violate the fundamental law, or we can simply muddle through with patently inadequate institutions in the face of serious problems. The first approach risks the rule of law, the second saves the law at the expense of society.

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Levinson is clearly motivated by the current state of politics in the United States, and his examples are American. But the problem may even bigger than he thinks: Levinson implies that Madisonian constitutional design is itself a failure. Structurally designed constraints on political action, Levinson asserts, are doomed to lead to the Faustian bargain he describes. Madison’s scheme, setting interest against interest, was designed to slow down government. For Madison and the founders, the risks of tyranny inherent in speedy government action outweighed the risks of government that is too slow. But Levinson thinks the risks of inaction are greater than those from excessive action. This is a general point about constitutional design, with implications well beyond the United States.

It’s a tempting argument, but I am not convinced that the matter is so grave as to throw out baby Madison with the bathwater of present-day American politics. Consider some other countries’ experience with insufficient Madisonian checks. In Hungary, the Fidesz government of Viktor Orban exploited a moment of crisis and won a majority sufficient to amend the constitution, which they proceeded to do wholesale. With the explicit goal of establishing “illiberal democracy” they have attacked many neutral institutions in society. In Poland, elections in October brought into power a conservative majority which has proceeded to fire the constitutional court. The honorary speaker of the parliament stated “it is the will of the people, not the law that matters, and the will of the people always tramples the law.” It is precisely such sentiments that Madison sought to temper.

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