I welcome Sandy Levinson’s acknowledgment that rights should be off the table for any hypothetical constitutional convention; the gig should be about structure only. On those issues, Sandy suggests, we can put ourselves behind a veil of uncertainty. Can we, with respect to any institutional issue that actually matters?
Let’s start with a certainty: the country is going broke—not in some distant future, but now. (It may be crass to inject that concern into a high-falutin’ constitutional debate; but then, this country started with a debate over debt and taxes.) Debts for Social Security, Medicare, and Medicaid will not be paid, because they cannot be paid. Public and private pensions won’t be paid, because they can’t be paid. Our retirement savings will be confiscated because that’s the only cash on the table; the only interesting questions are when and how. The Fed’s policy of paying bondholders a return-free rate of risk is only the beginning of the more overt expropriation that’s to come.
To paraphrase a presidential candidate, I’m not terribly worried about the rich. Their safety net of deductions for mortgages and state taxes will survive; Grover Norquist and Chuck Schumer will see to it. More importantly, the wealthy can and do move their money offshore and equip their children to prosper anywhere in the world. But I do worry about the rest of the country. Somebody will have to tell the American people that the social bargain they thought they had was a polite lie all along, and that the game is up. Would a convention rise to the task?
I’m perfectly happy to concede—in fact, I’ve argued—that the country’s perilous state has something to do with institutional failures. Alas, I can’t think of an institutional remedy—and neither, it seems, can anyone else. The proposed fixes (from more direct democracy to balanced budget amendments) range from ineffectual to pernicious. California has all that stuff; it’s not a model of good government.
If that’s right, and if rights are off the table, why are we having this debate? If it’s wrong, which structural proposal will do what (if anything) to curb the pathologies of our politics?