Monday, January 14, 2013
Should we give up on the Constitution? Part III: Beyond constitutive rules
This post is the third in a series inspired by Mike Seidman's provocative op-ed in the New York Times, in which Seidman seems to be arguing for some form of disobedience to the Constitution. In my previous post, I contended that some degree of constitutional law is necessary for functional democracy to exist. To continue a metaphor I used in that post, democracy without constitutional law would be like trying to play a game of baseball while both teams continually argue about what the rules should be. At least a basic level of constitutional law is necessary to literally constitute democracy -- to create it and define it so that we can participate in it without constantly fighting about what it means.
In the American experience, however -- and increasingly in constitutional systems around the globe -- constitutional law appears to extend beyond basic democratic ground rules. Many of our most familiar constitutional provisions take the form, not of structural rules necessary to establish a working democratic government (such as rules governing how laws are made, enforced, and interpreted), but rather of "rights" that impose limits on what democratic government may do. The First Amendment to the federal Constitution, for example, prohibits laws "respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." The Second Amendment prevents the government from "infring[ing]" "the right of the people to keep and bear Arms." The Fifth and Fourteenth Amendments forbid government deprivations of "life, liberty, or property, without due process of law."
These and similar constitutional provisions don't appear to fit comfortably within the category of constitutive democratic rules. Instead, they seem like restrictions on what our democratic government is allowed to do once it is constituted. To further indulge the baseball metaphor, constitutional rights appear less like the constitutive rules that require three strikes for an out and four balls for a walk, and more like a hypothetical rule requiring pitchers to throw a fastball on a 3-2 count. They seem to dictate how the game should be played, not what the game is in the first place.
Can constitutional rights against democracy be justified just as constitutional rules establishing democracy can? And what about seemingly trivial constitutive rules -- rules that don't really seem necessary to establish democracy? Seidman mentions one such rule in his essay: the provision of Article I, section 7 requiring "Bills for raising Revenue" to "originate in the House of Representatives" rather than in the Senate. It's difficult to imagine that such a rule is essential to the existence of a functioning democratic government; if it were, then many so-called "democracies" around the world that lack such a provision would not in fact be democracies at all. (A rough analogy here might be the designated-hitter rule in Major League Baseball's American League. Clearly that rule is not essential to the game of baseball -- otherwise the National League, which has no designated hitter, would be doing something other than playing baseball, as would the many Little League, high school, and college teams that do without a designated hitter.)
Seidman and many other critics of constitutional law -- including most prominently NYU law professor and philosopher Jeremy Waldron, who devoted an influential 1999 book to such a critique -- typically suggest that constitutional rights and other provisions that go beyond basic constitutive rules are illegitimate. Once we have a basic working democracy in place, these critics contend, we ought to use the ordinary processes of that democracy -- lawmaking by the elected legislature, in whatever form our democracy happens to require -- to work out these other details for ourselves. We ought to decide democratically, not constitutionally, what rights people have and what the details of our democratic system should look like. In Seidman's words, we ought to "extricat[e] ourselves from constitutional bondage" and "settle our disagreements through mature and tolerant debate" rather than by obeisance to the "archaic, idiosyncratic and [sometimes] downright evil provisions" of a centuries-old document.
Can this critique of constitutional law be answered persuasively? I think it can. To see how, though, we first need to consider two popular but ultimately unpersuasive attempts to defend constitutional law.
Constitutional law and natural rights
People often defend constitutional rights -- provisions that impose substantive limits on what democratic government may do, like the First Amendment's prohibition of laws "abridging the freedom of speech" or the Fourteenth Amendment's requirement of "equal protection of the laws" -- on the ground that these provisions are necessary to protect preexisting "natural" rights from unjustified interference by the democratic majority. The idea, which finds some support in the philosophy of the seventeenth- and eighteenth-century European Enlightenment and in the rhetoric of American founders like Thomas Jefferson, James Madison, and George Mason, is that government is instituted largely for the purpose of defending people's natural rights, and therefore it must be prohibited from doing things that vitiate that purpose by infringing those rights.
People may indeed have natural rights, and government may indeed have the function (at least in part) of protecting them. But the aim of protecting natural rights is not, by itself, a persuasive justification of constitutional rights. That goal cannot explain why we ought to prefer the constitutional Framers' opinions about rights over whatever conclusions we reach through ordinary democratic processes.
I wrote above that people "may" have natural rights. I used this tentative construction because of course people reasonably disagree about natural rights -- about whether they exist, what they are if they do exist, and what they entail in any given set of circumstances. As Supreme Court Justice James Iredell put it in 1789, "[t]he ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject." Some people believe, for example, that an individual has a natural right to liberty that immunizes her from any requirement to aid others -- to attempt to rescue a drowning man, for example, or even to spend a few dollars to buy a meal for a starving person when the money would not be missed -- unless the individual in question is responsible for the other person's peril. Others disagree. And in a society as culturally and ethnically diverse as most modern democracies, disagreement on these issues will be endemic and rampant.
Given the fact that people inevitably will disagree about natural rights, why then should we resolve those disagreements by deferring to the views of the constitutional Framers rather than working them out through regular democratic procedures? Democratic procedures, after all, are the way our society normally settles its differences about important issues. It would indeed seem, in Seidman's words, "bizarre" to settle them instead by reference to the opinions of late-eighteenth or mid-nineteenth-century constitutional Framers.
The answer to this quandary -- why we ought to defer to the Constitution's conclusions about rights rather than working things out for ourselves -- cannot be simply that "the Framers got it right" or "the Framers did a pretty good job of protecting natural rights, all things considered." These questions -- whether the Framers did in fact get it right or do a pretty good job of protecting natural rights -- are precisely the questions that people will disagree about. In order for law to possess what legal philosophers call "authority" -- to require obedience to its commands -- it must provide some strong reason to obey those commands even for those who disagree with them. Otherwise people who disagree with what the law requires would lack any good reason to obey the law. But the idea that the Constitution protects natural rights provides no such reason, because it cannot explain why someone who disagrees with what the Constitution says about rights nonetheless should obey it. When someone who disagrees with a constitutional command asks why she should obey that command, the answer cannot be simply "because the Constitution is right and you are wrong."
So the goal of protecting natural rights, standing alone, cannot justify constitutional rights or other aspects of constitutional law. People disagree on questions involving natural rights, and there is no obvious reason to prefer the Constitution's resolution of those disagreements over the resolutions reached by democratic procedures.
The Moral-Guidance approach
Many defenders of constitutional rights offer a more nuanced justification, however. They acknowledge that people disagree, quite reasonably, about questions involving natural rights, but they claim that we are more likely to reach the correct answers to these questions by deferring to what the constitutional Framers decided than by using ordinary democratic processes to answer them. They point to some special features of the constitutional process that they think make that process more reliable than ordinary democracy on questions of rights: the exceptional wisdom of the Framers, perhaps, or (more commonly) the extraordinarily deliberative and participatory nature of the Framing process. And these theorists say we ought to obey the Constitution, rather than work out questions of rights through democratic means, because these special features make the Constitution a more-reliable source of the truth about rights (whatever that truth may be) than ordinary democracy.
We might call this defense of constitutional rights a Moral-Guidance approach, because it rests on the notion that the Constitution can guide us toward the moral truth about rights. Note that the Moral-Guidance defense provides a reason for people to obey the Constitution even when they disagree with it. That reason is that the Constitution is more likely than the alternative -- regular democratic government -- to generate true or correct or good answers to questions about rights. The rationale is analogous to the practice of deferring to experts' opinions in other areas of life -- to a patient relying on her doctor's medical advice, for example, or a client relying on his attorney's legal counsel. We should obey the Constitution, the Moral-Guidance approach holds, because the Constitution, compared with ordinary democracy, is an expert on matters of rights.
The main problem with this Moral-Guidance approach is that its premise of relative moral expertise typically will be unconvincing. Our Constitution provides an especially acute example of the difficulty. Most of the Framers of the original Constitution and the Bill of Rights in the late 1800s practiced, endorsed, or at least tolerated slavery; virtually all of them thought women should have no place in public life. These and other glaring moral gaffes make it unlikely that the Framers themselves, as a group, possessed some special moral expertise that is superior to our own. Moreover, many capable adults were excluded altogether from participation in the ratification process: not just women, slaves, and most other African-Americans, but also Indians and many non-propertied citizens. The arbitrary exclusivity of the Framing undermines the claim that the process possessed special moral expertise by virtue of its exceptionally participatory and deliberative nature.
And even if we can somehow overlook the obvious moral failings of the Framers and the deficiencies of their process, the fact remains that the world they lived in looked radically different from our own. Whatever the Framers' views on free speech, they could not have taken account of developments like television and the Internet; whatever their views on guns, they could not have predicted the advent of hand-held automatic weapons; whatever their beliefs about due process of law, they could not have anticipated the threat of international terrorism. The list goes on and on. Even if the Framers were moral experts in the abstract, it is hard to see why we should defer to their supposed expertise on contemporary moral questions that they simply could not have considered.
So the idea that the Framers were relative moral experts is undercut by the obvious moral gaffes they made, by the salient deficiencies in their process, and by their inability to apply their moral views to future conditions they could not predict. Of course, we can imagine a constitution that mitigates these difficulties. A constitution (or a constitutional provision) that has been enacted relatively recently would be less likely to feature clear moral errors, either in its substance or in the process of its enactment, because the moral sensibilities of its framers would be more likely to match our own. And it would be more likely that the framers of such a constitution anticipated any given circumstance in which the law they created might apply to us today, shortly after the framing.
But constitutions typically are designed to last a long time; despite Thomas Jefferson's suggestion, replacing a constitution every 19 years probably is not the recipe for a stable democracy. As a constitution grows older, the moral gap between its framers and those subject to it will grow ever larger, and the problem of moral obsolescence will emerge in ever more potent form. In fact, the phenomenon of unanticipated conditions is likely to arise almost immediately, especially in our era of blindingly rapid technological change. Imagine, say, a new Free Speech Clause, reconceived to meet the problems posed by television, smart phones, and the Internet. How quickly would the original understandings behind the Clause become obsolete in our quickly evolving world? Ten years? Five?
The fact of moral obsolescence, then, is not unique to our 220-year-old Constitution; it probably is inevitable in any relatively stable constitutional system. And that fact poses a problem for Moral-Guidance accounts of constitutional authority, because it undermines the persuasiveness of relative moral expertise as a reason to obey a constitution. As a constitution grows older, the idea that its framers were comparative experts on the moral quandaries that face subsequent generations becomes less and less convincing.
To these difficulties, we can add one final shortcoming of Moral-Guidance accounts. Remember that the premise of these accounts is that the Constitution is morally wiser than the alternative decisionmaking procedures, namely those of everyday democracy. Note, however, that people who disagree in substance with what the Constitution requires therefore have reason to doubt this premise. If I think the Constitution gets it wrong on the question, say, of whether individuals have a right to keep and bear arms, I necessarily must doubt the proposition that the Constitution is a moral expert on this question. How could the Constitution be a moral expert on the question of gun rights if it answers that question (in my view) so blatantly incorrectly? Indeed, how can the Constitution be a moral expert on anything if it gets the question of gun rights so badly wrong? My disagreement with what the Constitution requires implies that the Constitution lacks moral expertise, on that question and perhaps on others. And since, on a Moral-Guidance approach, the Constitution's authority rests on the premise of its superior moral expertise, my disagreement with it implies that there is no basis for the Constitution's authority.
In other words, on a Moral-Guidance account of the Constitution's authority, people who strongly disagree with the Constitution also will have reason to question the Constitution's authority over them. This would make the Constitution weakest when it is needed most -- in cases where there is strong disagreement with its commands. The Moral-Guidance approach thus leads ultimately to a risk of constitutional anarchy.
Two common answers to the question of the Constitution's authority -- of why we ought to obey the Constitution when we disagree with it -- therefore turn out to be deeply problematic. The simple notion that we should obey the Constitution because it protects natural rights will not satisfy those who disagree with the Constitution's treatment of rights; it cannot provide a reason to obey the Framers' views of rights rather than our own. The more nuanced idea that we should obey the Constitution because the Framing process possessed some special moral expertise is unpersuasive in light of the glaring more deficiencies of that process, the inability of the Framers to foresee modern moral issues, and the evidence of our own moral disagreement with what the Constitution sometimes tells us to do.
Fortunately there is a better account available -- a better answer to the question of why we ought to obey the Constitution, even (especially) when we disagree with it. I will describe that account in my next post.
Sunday, January 6, 2013
Should we give up on the Constitution? Part II: Constitutionalism and constitutive democratic rules
Three distinct questions about the Constitution
In this sequel to my previous post on this topic, I want to distinguish among three questions that I think are implicit in the op-ed by Mike Seidman in the New York Times that prompted that post. The three questions are these: (1) Should we give up on the idea of constitutionalism altogether? (2) Should we "give up on" our own Constitution on the ground that it is irredeemably "archaic, idiosyncratic [or] downright evil," as Seidman claims? And (3) if the answer to question (2) is yes, does "giving up" on the Constitution imply simply ignoring it -- ceasing to obey it -- or rather using the Constitution's own procedures to fix it? It's not particularly clear from Seidman's piece which of these questions he means to answer when he advocates "giving up on the Constitution." But it's important to distinguish among them, because it is entirely possible to answer some of them affirmatively and others negatively.
In this post, I tackle question (1), focusing on a very elementary case in favor of constitutionalism: We need it to, literally, constitute democratic government. In my next post, I'll continue the discussion of constitutionalism by exploring the role of constitutional law beyond the establishment of basic, constitutive democratic rules. In subsequent posts, I'll discuss questions (2) and (3), taking question (3) first because it flows most naturally from my discussion of question (1).
The idea of constitutionalism
So let's begin with the most fundamental question: whether we should give up on the idea of constitutionalism altogether. First it will be helpful to define what we mean by "constitutionalism."
By constitutionalism, I mean the practice of deferring to legal rules that are both entrenched and secondary. "Entrenched" rules are rules that are especially difficult to eliminate or change. A typical way of entrenching a legal rule is to require particularly onerous procedures in order to change that rule. Most written constitutions do this by establishing amendment procedures that are outside the ordinary legislative process -- approval by direct popular vote rather than by the legislature, for example, or ratification by supermajorities in the legislature or by a special convention. The amendment provisions of Article V of the United States Constitution are particularly demanding: They require a two-thirds vote of both houses of Congress (or a majority vote by a special constitutional convention called by two-thirds of the state legislatures), followed by ratification by conventions or legislatures in three-fourths of the states. These procedures are burdensome enough that the Constitution has been amended only twenty-seven times in its nearly 225-year history (ten of them all at once within the first two years of its existence).
The concept of "secondary" legal rules might be a bit less familiar. Legal philosophers often distinguish secondary legal rules from "primary" legal rules. Primary legal rules are rules that govern people's everyday conduct, from traffic laws to tax regulations to the legal requirements for forming contracts to laws prohibiting assault and murder. Secondary legal rules are rules that govern the procedures for creating and changing these primary legal rules and, sometimes, the permissible content of these primary rules. Rules about who makes law and how (e.g., bicameralism in Congress, the division of power between the federal and state governments) are examples of secondary rules; so are rules about whether and to what extent the government can regulate areas of conduct like speech and religion. These secondary rules don't directly apply to the conduct of most people living their everyday lives. Instead, they govern the making and content of the primary legal rules that apply to everyday conduct. Most constitutional provisions are examples of secondary legal rules. (The only current exception in the U.S. Constitution is section 1 of the Thirteenth Amendment, which directly prohibits private actors from practicing "slavery [or] involuntary servitude.")
Constitutionalism, then, is the practice of deferring to legal rules that govern the processes of ordinary democracy and that cannot easily be changed using those processes. In the United States, constitutionalism includes canonical written texts (on the federal and state levels) that communicate entrenched secondary rules. It also typically includes the practice of judicial review -- the authoritative interpretation of these (often vague) texts by judges who are relatively insulated from electoral politics. It is not clear that either of these features is necessary for true constitutionalism, however. Great Britain, for example, has done without either a written constitution or judicial review for most of its modern history, and yet most Britons consider their system to be a "constitutional" one.
It's important to note, however, that a system must possess some binding, entrenched, secondary rules, whatever their source or mode of interpretation, in order to be considered "constitutional" in a meaningful sense. Britain can be called a "constitutional" system because political participants in Britain typically consider themselves bound by constitutional rules, even though most of those rules are not codified in a canonical document or enforced by a political insular judiciary. The lack of a written constitution or judicial review need not be fatal to constitutionalism, but a lack of binding constitutional rules (whatever their form, and however they are interpreted) would be fatal.
Constitutionalism and constitutive rules
Seidman's essay is not entirely transparent with respect to its primary target. Is he attacking constitutionalism generally? Or only constitutionalism as we practice it in the United States -- that is, the U.S. Constitution? If the latter, which aspects of the Constitution does he oppose, and what does he suggest we do about it? None of these questions is clearly answered in his piece (though to be fair, I should note that the Times op-ed apparently represents a tiny snippet of what undoubtedly will be much more extensive arguments in Seidman's forthcoming book).
Sometimes Seidman seems to be challenging the idea of constitutionalism itself, not simply objecting to our own Constitution or provisions of it. For example, Seidman advocates "extricating ourselves from constitutional bondage" and debating issues "solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power." I read Seidman as suggesting here that democracy would be better without the yoke of constitutionalism around its neck -- that we would be better off deciding issues (some issues, anyway) in a purely democratic fashion rather than feeling ourselves bound by, and thus continually adverting to, constitutional limits on how we can decide those issues and on what we can decide.
Seidman's position thus suggests the possibility of a pure, unadulterated, unfettered system of democracy, free of annoying constitutional limitations. But this assumption is a mistake, one commonly made by critics of constitutionalism. In fact it is impossible to have democracy without some degree of constitutionalism. Constitutional law is necessary to literally constitute democracy.
Consider the fact that even Seidman seems to acknowledge the need for a basic level of constitutional law. He thinks we should not "have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor." What Seidman is recognizing here is that some degree of entrenched constitutional rules -- literally constitutive rules -- is necessary to get democracy up and running in the first place. We cannot have a functioning system of democracy if we are continually debating the details of how laws get made, who has the authority to interpret and enforce them, and so on. Constitutive constitutional law is in this sense a necessary condition of democracy.
It is interesting, however, that many of Seidman's examples of what he calls the "archaic, idiosyncratic and downright evil provisions" of our actual Constitution arguably fall into this constitutive category. He asks "why [we] should ... care" about Article I, sec. 7's requirement that "Bills for raising Revenue" originate in the House rather than in the Senate. He thinks the president should "have to justify military action against Iran solely on the merits," without relying on his Article II power as commander-in-chief. He asserts that Congress' power of the purse, conferred by Article I, should "be defended on contemporary policy grounds, not abstruse constitutional doctrine."
So, on the one hand, we have Seidman recognizing the need for some constitutive democratic rules -- that "[s]ome matters are better left settled, even if not in exactly the way we favor." But on the other hand, we have Seidman questioning the authority of certain constitutive democratic rules (the requirements for revenue bills, the allocation of military power to the president, the conferral of the taxing and spending power on Congress). Why does Seidman think some constitutive rules are "better left settled" while others should be open to debate?
The answer is not that there is some definitive, logical line to be drawn between the "settled" provisions and the debatable ones. Just about any constitutive provision reasonably can be debated on its merits -- from seeming minutia like the question of where revenue bills should originate to big-picture issues like whether and how power should be divided between the federal and state governments, or between the different branches of the federal government. There is no single inherently correct way to organize a democracy, and even if there were, people inevitably would disagree about what it is.
Such disagreements are all the more inevitable given the fact that the participants frequently will stand to gain or lose depending on how they are resolved. (Members of the House gain power relative to members of the Senate if revenue bills must originate there; state government officials lose power if more authority is ceded to the federal government; and so on.) The inevitability of disagreement is precisely the reason we need constitutive rules -- legally enforceable provisions that settle these debates by specifying the one correct way to do things. Without them, continual fights about the meaning of democracy would make the actual operation of democracy impossible. It would be like trying to play baseball with the teams constantly debating the definition of a strike.
So we need constitutional law, at least at the constitutive level, in order to have democracy itself. Seidman's implied dichotomy between "pure" democracy and adulterated constitutional democracy is a false one. To debate the issue of, say, the president's military power "solely on the merits," without reference to constitutional provisions, would be to throw the very idea of democracy up for grabs.
Seidman tries to finesse this point when he cites the examples of countries "like Britain and New Zealand," which "have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens." These countries may not have written constitutions or judicial review (although, perhaps revealingly, both Britain and New Zealand recently have taken steps in that direction), but, as I suggested earlier, this doesn't mean they don't have constitutional law. It means only that their constitutive rules take the form of entrenched statutes, traditional institutions, and established procedures rather than provisions of a single canonical document. Political participants in Britain frequently debate what their "constitution" requires, despite the lack of a single governing text; they believe themselves bound by a set of constitutive rules even if those rules are not written down on a definitive piece of parchment. The examples of Britain and similar systems prove only that not all constitutions must derive from a unitary constitutional text, not that constitutional law is unnecessary.
By the same token, the fact that we lack clear constitutive rules governing every detail of democratic procedure does not mean that we could function without constitutive rules altogether. In the United States, there are many details of democratic government that either are not governed by constitutional rules at all (such as the filibuster in the Senate) or are subject to rules whose precise meaning is in dispute (such as the allocation of power over foreign and military affairs between Congress and the president). We can get away with uncertainty (and the resulting disputes -- which, it should be noted, are frequent and heated) on these issues because the more-fundamental mechanisms of government are settled. Power struggles between the president and Congress are tolerable because at least we know that there is a president and a Congress; we know, for example, that the president is the candidate who won the most electoral votes in the most recent quadrennial election, and that Congress consists of two Senators from each state and representatives apportioned by population as determined by a decennial census. At some point, however, the absence of settled constitutive rules would pose a serious threat to the stable operation of democracy. (Imagine serious recurring disputes over how many senators could be seated from each state, or the length of a president's term in office.)
Nor does the lack of clear constitutive rules on some issues imply that we can pick and choose which rules to follow when the rules are clear. Seidman suggests as much when he questions some constitutive rules (the revenue-bill provision, the commander-in-chief power, Congress' power of the purse) while asserting that other, similar matters are "better left settled" (bicameralism, terms of office). But people inevitably will disagree about which constitutive issues are "better left settled" and which are not; and so an approach that says "contest those constitutive rules that should be contested and leave the others alone" is a recipe for chaos. Even if we could establish a rule for which constitutive rules may be contested and which must be considered settled, that rule itself would be a constitutive rule potentially subject to contestation. (Indeed, one might understand our Constitution itself as embodying an implicit constitutive rule to this effect: Those rules included in the Constitution (say, the president's power as commander-in-chief) are, by virtue of that fact, considered settled, while those rules not included in the Constitution (say, the Senate filibuster) are, by virtue of that fact, open to democratic debate.) There is no logical limiting principle once we open the door to disobeying or contesting some constitutive rules.
The idea of democratic government necessitates constitutive rules to establish and maintain that government; and the necessity of constitutive rules implies that all such rules must be binding on the participants in the democratic process governed by them. In other words, the very notion of democratic government presupposes some degree of constitutional law. So we have a partial answer to question (1), the question of whether to give up on constitutionalism itself. We can't give up on it altogether, not if we want to remain a democratic society. At the very least we need basic constitutive rules upon which to build our democracy.
Note that this answer does not imply any particular answer to question (2), the question of whether we ought to give up on our actual Constitution. It might be that our Constitution cannot be defended as a set of constitutive democratic rules. For one thing, maybe our Constitution, or parts of it, can't properly be understood in terms of constitutive rules at all. (Can the right to choose an abortion, for instance, credibly be characterized as a basic ground rule of democratic government?) In my next post, I will suggest that the case for constitutionalism extends beyond bare-bones constitutive rules. And in a future post, I'll argue that many (though probably not all) aspects of our current Constitution can be defended, at least in the abstract, as legitimate expressions of constitutionalism.
Even if most or all of our Constitution can be understood as constitutive rules, however, it might be the case that those rules are so bad that they are not "better left settled" -- that we are worse off obeying these "archaic, idiosyncratic and downright evil" rules than we would be if we left everything up for grabs or, perhaps better, started over and tried to draft a better set of constitutive rules. I will address this possibility, too, a few posts down the line.
Note too, however, that we have learned something, albeit something rather incomplete and tentative, about question (3), the question of whether we should simply ignore or stop obeying our Constitution rather than following its own procedures for changing it. The necessity of constitutive democratic rules provides a strong argument against simply abandoning all our constitutive rules without agreeing on something to take their place or, perhaps worse, allowing democratic participants (government officials, judges, citizens) to pick and choose which rules to follow and which to ignore. Either of these approaches likely would result, not in the realization of the sort of substantive democracy Seidman seems to envision, but rather in a kind of chaos in which all bets are off and no one agrees on how government is supposed to function. The ultimate outcome of this chaos might be democracy, although there is no guarantee of that. But it seems probable that the short-term result would be far more painful than the result of continuing to live under an admittedly far-from-perfect constitutional system.
In this sequel to my previous post on this topic, I want to distinguish among three questions that I think are implicit in the op-ed by Mike Seidman in the New York Times that prompted that post. The three questions are these: (1) Should we give up on the idea of constitutionalism altogether? (2) Should we "give up on" our own Constitution on the ground that it is irredeemably "archaic, idiosyncratic [or] downright evil," as Seidman claims? And (3) if the answer to question (2) is yes, does "giving up" on the Constitution imply simply ignoring it -- ceasing to obey it -- or rather using the Constitution's own procedures to fix it? It's not particularly clear from Seidman's piece which of these questions he means to answer when he advocates "giving up on the Constitution." But it's important to distinguish among them, because it is entirely possible to answer some of them affirmatively and others negatively.
In this post, I tackle question (1), focusing on a very elementary case in favor of constitutionalism: We need it to, literally, constitute democratic government. In my next post, I'll continue the discussion of constitutionalism by exploring the role of constitutional law beyond the establishment of basic, constitutive democratic rules. In subsequent posts, I'll discuss questions (2) and (3), taking question (3) first because it flows most naturally from my discussion of question (1).
The idea of constitutionalism
So let's begin with the most fundamental question: whether we should give up on the idea of constitutionalism altogether. First it will be helpful to define what we mean by "constitutionalism."
By constitutionalism, I mean the practice of deferring to legal rules that are both entrenched and secondary. "Entrenched" rules are rules that are especially difficult to eliminate or change. A typical way of entrenching a legal rule is to require particularly onerous procedures in order to change that rule. Most written constitutions do this by establishing amendment procedures that are outside the ordinary legislative process -- approval by direct popular vote rather than by the legislature, for example, or ratification by supermajorities in the legislature or by a special convention. The amendment provisions of Article V of the United States Constitution are particularly demanding: They require a two-thirds vote of both houses of Congress (or a majority vote by a special constitutional convention called by two-thirds of the state legislatures), followed by ratification by conventions or legislatures in three-fourths of the states. These procedures are burdensome enough that the Constitution has been amended only twenty-seven times in its nearly 225-year history (ten of them all at once within the first two years of its existence).
The concept of "secondary" legal rules might be a bit less familiar. Legal philosophers often distinguish secondary legal rules from "primary" legal rules. Primary legal rules are rules that govern people's everyday conduct, from traffic laws to tax regulations to the legal requirements for forming contracts to laws prohibiting assault and murder. Secondary legal rules are rules that govern the procedures for creating and changing these primary legal rules and, sometimes, the permissible content of these primary rules. Rules about who makes law and how (e.g., bicameralism in Congress, the division of power between the federal and state governments) are examples of secondary rules; so are rules about whether and to what extent the government can regulate areas of conduct like speech and religion. These secondary rules don't directly apply to the conduct of most people living their everyday lives. Instead, they govern the making and content of the primary legal rules that apply to everyday conduct. Most constitutional provisions are examples of secondary legal rules. (The only current exception in the U.S. Constitution is section 1 of the Thirteenth Amendment, which directly prohibits private actors from practicing "slavery [or] involuntary servitude.")
Constitutionalism, then, is the practice of deferring to legal rules that govern the processes of ordinary democracy and that cannot easily be changed using those processes. In the United States, constitutionalism includes canonical written texts (on the federal and state levels) that communicate entrenched secondary rules. It also typically includes the practice of judicial review -- the authoritative interpretation of these (often vague) texts by judges who are relatively insulated from electoral politics. It is not clear that either of these features is necessary for true constitutionalism, however. Great Britain, for example, has done without either a written constitution or judicial review for most of its modern history, and yet most Britons consider their system to be a "constitutional" one.
It's important to note, however, that a system must possess some binding, entrenched, secondary rules, whatever their source or mode of interpretation, in order to be considered "constitutional" in a meaningful sense. Britain can be called a "constitutional" system because political participants in Britain typically consider themselves bound by constitutional rules, even though most of those rules are not codified in a canonical document or enforced by a political insular judiciary. The lack of a written constitution or judicial review need not be fatal to constitutionalism, but a lack of binding constitutional rules (whatever their form, and however they are interpreted) would be fatal.
Constitutionalism and constitutive rules
Seidman's essay is not entirely transparent with respect to its primary target. Is he attacking constitutionalism generally? Or only constitutionalism as we practice it in the United States -- that is, the U.S. Constitution? If the latter, which aspects of the Constitution does he oppose, and what does he suggest we do about it? None of these questions is clearly answered in his piece (though to be fair, I should note that the Times op-ed apparently represents a tiny snippet of what undoubtedly will be much more extensive arguments in Seidman's forthcoming book).
Sometimes Seidman seems to be challenging the idea of constitutionalism itself, not simply objecting to our own Constitution or provisions of it. For example, Seidman advocates "extricating ourselves from constitutional bondage" and debating issues "solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power." I read Seidman as suggesting here that democracy would be better without the yoke of constitutionalism around its neck -- that we would be better off deciding issues (some issues, anyway) in a purely democratic fashion rather than feeling ourselves bound by, and thus continually adverting to, constitutional limits on how we can decide those issues and on what we can decide.
Seidman's position thus suggests the possibility of a pure, unadulterated, unfettered system of democracy, free of annoying constitutional limitations. But this assumption is a mistake, one commonly made by critics of constitutionalism. In fact it is impossible to have democracy without some degree of constitutionalism. Constitutional law is necessary to literally constitute democracy.
Consider the fact that even Seidman seems to acknowledge the need for a basic level of constitutional law. He thinks we should not "have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor." What Seidman is recognizing here is that some degree of entrenched constitutional rules -- literally constitutive rules -- is necessary to get democracy up and running in the first place. We cannot have a functioning system of democracy if we are continually debating the details of how laws get made, who has the authority to interpret and enforce them, and so on. Constitutive constitutional law is in this sense a necessary condition of democracy.
It is interesting, however, that many of Seidman's examples of what he calls the "archaic, idiosyncratic and downright evil provisions" of our actual Constitution arguably fall into this constitutive category. He asks "why [we] should ... care" about Article I, sec. 7's requirement that "Bills for raising Revenue" originate in the House rather than in the Senate. He thinks the president should "have to justify military action against Iran solely on the merits," without relying on his Article II power as commander-in-chief. He asserts that Congress' power of the purse, conferred by Article I, should "be defended on contemporary policy grounds, not abstruse constitutional doctrine."
So, on the one hand, we have Seidman recognizing the need for some constitutive democratic rules -- that "[s]ome matters are better left settled, even if not in exactly the way we favor." But on the other hand, we have Seidman questioning the authority of certain constitutive democratic rules (the requirements for revenue bills, the allocation of military power to the president, the conferral of the taxing and spending power on Congress). Why does Seidman think some constitutive rules are "better left settled" while others should be open to debate?
The answer is not that there is some definitive, logical line to be drawn between the "settled" provisions and the debatable ones. Just about any constitutive provision reasonably can be debated on its merits -- from seeming minutia like the question of where revenue bills should originate to big-picture issues like whether and how power should be divided between the federal and state governments, or between the different branches of the federal government. There is no single inherently correct way to organize a democracy, and even if there were, people inevitably would disagree about what it is.
Such disagreements are all the more inevitable given the fact that the participants frequently will stand to gain or lose depending on how they are resolved. (Members of the House gain power relative to members of the Senate if revenue bills must originate there; state government officials lose power if more authority is ceded to the federal government; and so on.) The inevitability of disagreement is precisely the reason we need constitutive rules -- legally enforceable provisions that settle these debates by specifying the one correct way to do things. Without them, continual fights about the meaning of democracy would make the actual operation of democracy impossible. It would be like trying to play baseball with the teams constantly debating the definition of a strike.
So we need constitutional law, at least at the constitutive level, in order to have democracy itself. Seidman's implied dichotomy between "pure" democracy and adulterated constitutional democracy is a false one. To debate the issue of, say, the president's military power "solely on the merits," without reference to constitutional provisions, would be to throw the very idea of democracy up for grabs.
Seidman tries to finesse this point when he cites the examples of countries "like Britain and New Zealand," which "have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens." These countries may not have written constitutions or judicial review (although, perhaps revealingly, both Britain and New Zealand recently have taken steps in that direction), but, as I suggested earlier, this doesn't mean they don't have constitutional law. It means only that their constitutive rules take the form of entrenched statutes, traditional institutions, and established procedures rather than provisions of a single canonical document. Political participants in Britain frequently debate what their "constitution" requires, despite the lack of a single governing text; they believe themselves bound by a set of constitutive rules even if those rules are not written down on a definitive piece of parchment. The examples of Britain and similar systems prove only that not all constitutions must derive from a unitary constitutional text, not that constitutional law is unnecessary.
By the same token, the fact that we lack clear constitutive rules governing every detail of democratic procedure does not mean that we could function without constitutive rules altogether. In the United States, there are many details of democratic government that either are not governed by constitutional rules at all (such as the filibuster in the Senate) or are subject to rules whose precise meaning is in dispute (such as the allocation of power over foreign and military affairs between Congress and the president). We can get away with uncertainty (and the resulting disputes -- which, it should be noted, are frequent and heated) on these issues because the more-fundamental mechanisms of government are settled. Power struggles between the president and Congress are tolerable because at least we know that there is a president and a Congress; we know, for example, that the president is the candidate who won the most electoral votes in the most recent quadrennial election, and that Congress consists of two Senators from each state and representatives apportioned by population as determined by a decennial census. At some point, however, the absence of settled constitutive rules would pose a serious threat to the stable operation of democracy. (Imagine serious recurring disputes over how many senators could be seated from each state, or the length of a president's term in office.)
Nor does the lack of clear constitutive rules on some issues imply that we can pick and choose which rules to follow when the rules are clear. Seidman suggests as much when he questions some constitutive rules (the revenue-bill provision, the commander-in-chief power, Congress' power of the purse) while asserting that other, similar matters are "better left settled" (bicameralism, terms of office). But people inevitably will disagree about which constitutive issues are "better left settled" and which are not; and so an approach that says "contest those constitutive rules that should be contested and leave the others alone" is a recipe for chaos. Even if we could establish a rule for which constitutive rules may be contested and which must be considered settled, that rule itself would be a constitutive rule potentially subject to contestation. (Indeed, one might understand our Constitution itself as embodying an implicit constitutive rule to this effect: Those rules included in the Constitution (say, the president's power as commander-in-chief) are, by virtue of that fact, considered settled, while those rules not included in the Constitution (say, the Senate filibuster) are, by virtue of that fact, open to democratic debate.) There is no logical limiting principle once we open the door to disobeying or contesting some constitutive rules.
The idea of democratic government necessitates constitutive rules to establish and maintain that government; and the necessity of constitutive rules implies that all such rules must be binding on the participants in the democratic process governed by them. In other words, the very notion of democratic government presupposes some degree of constitutional law. So we have a partial answer to question (1), the question of whether to give up on constitutionalism itself. We can't give up on it altogether, not if we want to remain a democratic society. At the very least we need basic constitutive rules upon which to build our democracy.
Note that this answer does not imply any particular answer to question (2), the question of whether we ought to give up on our actual Constitution. It might be that our Constitution cannot be defended as a set of constitutive democratic rules. For one thing, maybe our Constitution, or parts of it, can't properly be understood in terms of constitutive rules at all. (Can the right to choose an abortion, for instance, credibly be characterized as a basic ground rule of democratic government?) In my next post, I will suggest that the case for constitutionalism extends beyond bare-bones constitutive rules. And in a future post, I'll argue that many (though probably not all) aspects of our current Constitution can be defended, at least in the abstract, as legitimate expressions of constitutionalism.
Even if most or all of our Constitution can be understood as constitutive rules, however, it might be the case that those rules are so bad that they are not "better left settled" -- that we are worse off obeying these "archaic, idiosyncratic and downright evil" rules than we would be if we left everything up for grabs or, perhaps better, started over and tried to draft a better set of constitutive rules. I will address this possibility, too, a few posts down the line.
Note too, however, that we have learned something, albeit something rather incomplete and tentative, about question (3), the question of whether we should simply ignore or stop obeying our Constitution rather than following its own procedures for changing it. The necessity of constitutive democratic rules provides a strong argument against simply abandoning all our constitutive rules without agreeing on something to take their place or, perhaps worse, allowing democratic participants (government officials, judges, citizens) to pick and choose which rules to follow and which to ignore. Either of these approaches likely would result, not in the realization of the sort of substantive democracy Seidman seems to envision, but rather in a kind of chaos in which all bets are off and no one agrees on how government is supposed to function. The ultimate outcome of this chaos might be democracy, although there is no guarantee of that. But it seems probable that the short-term result would be far more painful than the result of continuing to live under an admittedly far-from-perfect constitutional system.
Friday, January 4, 2013
Should we give up on the Constitution?
Mike Seidman, a law
professor at Georgetown, recently published a thought-provoking op-ed in the New York Times. Seidman argues in essence that we ought to
ignore the Constitution, though he is notably vague about what should take its place. See also some letters to the editor in response to Seidman's piece.
Seidman is right to raise the question of whether we ought to obey the Constitution (which many legal theorists refer to as the question of the Constitution's "authority"). I asked that question myself in a book I published in 2011, called "A Matter of Dispute: Morality, Democracy, and Law." (You can see a description of the book, and even purchase it if you like, here or in the other usual places.) In the book, I offer a conditionally affirmative answer to the question of the Constitution's authority: I think we ought to obey it, though not always or at all costs.
My arguments in the book, as you might imagine, are pretty involved, but let me make a few comments in response to Seidman's piece before I get back to grading (sigh).
Seidman's main beef seems to be, not with the Constitution itself, but with two contemporary pathologies in our interpretation and invocation of the Constitution. One pathology is a loose family of methods for interpreting the Constitution known as "originalism" -- the search for some original intent or understanding of the people who framed the Constitution or of the public alive at the time of the framing. Why, Seidman asks, should we try to resolve pressing current problems by reference to the views of "a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves"?
And indeed, the sort of mindless deference to the views of the Framers advocated by many "originalists" is difficult, perhaps impossible, to defend. There are good reasons to pay attention to what the Framers did -- more on this point in a moment -- but the idea that the Framers were really smart people or possessed superior moral wisdom is not among them. Seidman is right to reject a blind adherence to original understanding or intent. But this doesn't imply rejecting the Constitution itself; it implies only the rejection of a particularly hidebound way of interpreting the Constitution.
The other, related pathology that I think bothers Seidman is the phenomenon of Constitution-worship: the quasi-religious treatment of the Constitution as an end in itself, not a means to other ends, and the resulting use of the Constitution as a sort of trump card to stifle substantive political discussion. I often perceive this phenomenon myself in contemporary American political and popular discourse, and like Seidman I'm disturbed by it. The Framers were not gods and the Constitution is not holy writ. It is instead a functional (and sometimes dysfunctional) charter of pragmatic democratic government. How well it works to achieve its ends -- the establishment of a fair, effective, participatory system of democracy -- ultimately is a matter for us, the living citizens of that democracy, to judge for ourselves. We owe no indefeasible allegiance to the Constitution.
But this doesn't mean, as Seidman suggests, that we ought to jettison the Constitution when it produces results that are inconvenient, even seemingly unjust or ridiculous. Law, after all, often produces outcomes with which we disagree; that's not an excuse to abandon law. Rejecting Constitution-worship implies only that we should not be afraid to question the Constitution's authority -- to ask whether our constitutional system is, on the whole, doing a reasonably good job at its function, which is maintaining the kind of democratic system we want. We ought to ask ourselves, as citizens, whether the Constitution is worthy of our obedience. But asking this question does not necessitate a negative answer.
And in fact I think there are reasons to give an affirmative answer to the question of whether the Constitution deserves our obedience. The main one is this: There are some questions about democracy that we cannot trust ordinary democracy itself to resolve. And the Constitution does, not a perfect job, but a reasonably good job of resolving them.
Consider the recent phenomenon of recurring games of fiscal "chicken" in Washington: the high-stakes partisan fights over debt ceilings, "fiscal cliffs," and the like that seem to arise now every few months or so. These battles are symptomatic of a larger problem of vehement partisanship in Washington. And that problem is not primarily the fault of the Constitution, as Seidman suggests when he blames that document for our "dysfunctional political system." Instead the chief culprit is better described as a *lack* of constitutional law, or rather the failure of the current Supreme Court to enforce the constitutional requirements of equal protection and a republican form of government in the context of partisan gerrymandering. The Court has refused to hold state legislatures accountable for redistricting decisions that intentionally create many "safe" Republican or Democratic legislative districts, districts that tend to elect extremists because there is no pressure to move toward the center in the general election. The result has been a constantly increasing polarization in our politics.
The problem of partisan gerrymandering illustrates (by omission) perhaps the principal function of constitutional law in our system. We can't trust elected politicians to maintain fairly participatory systems of elections -- precisely because they have so much to gain when elections are unfairly stacked in their favor. Only a relatively impartial system of constitutional law -- principles laid down many years in the past, by Framers who could not predict precisely who would benefit from them in the future, and interpreted by a relatively apolitical Supreme Court -- can be trusted to set and enforce the ground rules of a fair democracy.
This is not to say that our constitutional system always functions in this relatively impartial way. My own view is that it has worked reasonably well over the years, usually correcting itself when it gets too far out of whack, very occasionally needing an external corrective (e.g., the Civil War) when it is too broken to repair itself. I doubt we are at such a point now; I tend to think that our main constitutional problem at the moment is the membership of the Supreme Court, not the underlying constitutional structure itself. But I might be wrong about this; the point is certainly debatable.
Seidman's piece is valuable in reminding us that there is nothing wrong with having an honest debate about the value of the Constitution. There may in fact be something very wrong about failing to do so; this is the danger of the kind of Constitution-worship that Seidman rightly abhors. But while one possible result of such a debate is trashing the Constitution altogether, that is hardly a foregone conclusion. Let's not throw out the baby with the bathwater.
Seidman is right to raise the question of whether we ought to obey the Constitution (which many legal theorists refer to as the question of the Constitution's "authority"). I asked that question myself in a book I published in 2011, called "A Matter of Dispute: Morality, Democracy, and Law." (You can see a description of the book, and even purchase it if you like, here or in the other usual places.) In the book, I offer a conditionally affirmative answer to the question of the Constitution's authority: I think we ought to obey it, though not always or at all costs.
My arguments in the book, as you might imagine, are pretty involved, but let me make a few comments in response to Seidman's piece before I get back to grading (sigh).
Seidman's main beef seems to be, not with the Constitution itself, but with two contemporary pathologies in our interpretation and invocation of the Constitution. One pathology is a loose family of methods for interpreting the Constitution known as "originalism" -- the search for some original intent or understanding of the people who framed the Constitution or of the public alive at the time of the framing. Why, Seidman asks, should we try to resolve pressing current problems by reference to the views of "a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves"?
And indeed, the sort of mindless deference to the views of the Framers advocated by many "originalists" is difficult, perhaps impossible, to defend. There are good reasons to pay attention to what the Framers did -- more on this point in a moment -- but the idea that the Framers were really smart people or possessed superior moral wisdom is not among them. Seidman is right to reject a blind adherence to original understanding or intent. But this doesn't imply rejecting the Constitution itself; it implies only the rejection of a particularly hidebound way of interpreting the Constitution.
The other, related pathology that I think bothers Seidman is the phenomenon of Constitution-worship: the quasi-religious treatment of the Constitution as an end in itself, not a means to other ends, and the resulting use of the Constitution as a sort of trump card to stifle substantive political discussion. I often perceive this phenomenon myself in contemporary American political and popular discourse, and like Seidman I'm disturbed by it. The Framers were not gods and the Constitution is not holy writ. It is instead a functional (and sometimes dysfunctional) charter of pragmatic democratic government. How well it works to achieve its ends -- the establishment of a fair, effective, participatory system of democracy -- ultimately is a matter for us, the living citizens of that democracy, to judge for ourselves. We owe no indefeasible allegiance to the Constitution.
But this doesn't mean, as Seidman suggests, that we ought to jettison the Constitution when it produces results that are inconvenient, even seemingly unjust or ridiculous. Law, after all, often produces outcomes with which we disagree; that's not an excuse to abandon law. Rejecting Constitution-worship implies only that we should not be afraid to question the Constitution's authority -- to ask whether our constitutional system is, on the whole, doing a reasonably good job at its function, which is maintaining the kind of democratic system we want. We ought to ask ourselves, as citizens, whether the Constitution is worthy of our obedience. But asking this question does not necessitate a negative answer.
And in fact I think there are reasons to give an affirmative answer to the question of whether the Constitution deserves our obedience. The main one is this: There are some questions about democracy that we cannot trust ordinary democracy itself to resolve. And the Constitution does, not a perfect job, but a reasonably good job of resolving them.
Consider the recent phenomenon of recurring games of fiscal "chicken" in Washington: the high-stakes partisan fights over debt ceilings, "fiscal cliffs," and the like that seem to arise now every few months or so. These battles are symptomatic of a larger problem of vehement partisanship in Washington. And that problem is not primarily the fault of the Constitution, as Seidman suggests when he blames that document for our "dysfunctional political system." Instead the chief culprit is better described as a *lack* of constitutional law, or rather the failure of the current Supreme Court to enforce the constitutional requirements of equal protection and a republican form of government in the context of partisan gerrymandering. The Court has refused to hold state legislatures accountable for redistricting decisions that intentionally create many "safe" Republican or Democratic legislative districts, districts that tend to elect extremists because there is no pressure to move toward the center in the general election. The result has been a constantly increasing polarization in our politics.
The problem of partisan gerrymandering illustrates (by omission) perhaps the principal function of constitutional law in our system. We can't trust elected politicians to maintain fairly participatory systems of elections -- precisely because they have so much to gain when elections are unfairly stacked in their favor. Only a relatively impartial system of constitutional law -- principles laid down many years in the past, by Framers who could not predict precisely who would benefit from them in the future, and interpreted by a relatively apolitical Supreme Court -- can be trusted to set and enforce the ground rules of a fair democracy.
This is not to say that our constitutional system always functions in this relatively impartial way. My own view is that it has worked reasonably well over the years, usually correcting itself when it gets too far out of whack, very occasionally needing an external corrective (e.g., the Civil War) when it is too broken to repair itself. I doubt we are at such a point now; I tend to think that our main constitutional problem at the moment is the membership of the Supreme Court, not the underlying constitutional structure itself. But I might be wrong about this; the point is certainly debatable.
Seidman's piece is valuable in reminding us that there is nothing wrong with having an honest debate about the value of the Constitution. There may in fact be something very wrong about failing to do so; this is the danger of the kind of Constitution-worship that Seidman rightly abhors. But while one possible result of such a debate is trashing the Constitution altogether, that is hardly a foregone conclusion. Let's not throw out the baby with the bathwater.
Welcome to MODblog
Welcome to MODblog. "MOD" as in Matter Of Dispute, which is the title of my 2011 book and also, roughly, the main theme of this blog. I'll post here occasional comments on legal and political issues, with a special emphasis on issues relating to U.S. constitutional law, which is what I teach at the University of Baltimore School of law.
"MOD" also as in "modest," which this blog certainly is, at least at the moment, even if its author sometimes isn't.
And "MOD" as in the occasional post relating to my interest in modern architecture and design or to my other various interests, including photography, jazz and rock music, travel, and food. With perhaps a little about the Detroit Tigers and the University of Michigan Wolverines thrown into the mix.
More to come; stay tuned. Thanks for reading, and for your patience.
C.J. Peters
"MOD" also as in "modest," which this blog certainly is, at least at the moment, even if its author sometimes isn't.
And "MOD" as in the occasional post relating to my interest in modern architecture and design or to my other various interests, including photography, jazz and rock music, travel, and food. With perhaps a little about the Detroit Tigers and the University of Michigan Wolverines thrown into the mix.
More to come; stay tuned. Thanks for reading, and for your patience.
C.J. Peters
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