Wednesday, December 6, 2006

Solum, Constitutional Possibilities, and the BCS

Posted by Jeff Lipshaw

Every once in a while, I like reading an article completely out of my field, if for no other reason than to shake the cobwebs loose, and to focus on learning! Larry Solum (Illinois) has posted a new article Aristotle_1 called "Constitutional Possibilities" (highlighted over at Legal Theory Blog, left).  I thought it was an accessible and non-ideological introduction to the subject of constitutional reform.  Here's the abstract:

What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether these options are desirable - whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans for constitutional reform or revolution. Frequently, normative constitutional theories are criticized on the ground that they are undesirable, unwise, on inconsistent with the best theories of political morality and legitimate legal authority, but sometimes one hears a very different form of criticism, expressed in locutions such as the following: “That is unrealistic.” “That's not possible.” “That is pie in the sky.” “You are imagining castles in the air.” “Your suggestion is utopian.” “That isn't feasible.” These objections invoke the idea of ephemeral constitutional possibility - constitutional options that are not real or actual possibilities. 

What are our constitutional possibilities? How should we think about the feasible choice set for constitutional change? What are the differences between ideal and nonideal theory? What role should the ideas of path dependency and second best play in constitutional theory? These inquiries cross the lines between normative, positive, and conceptual constitutional theory. At the conceptual level, we can ask what phrases like “constitutional possibility,” “ideal theory,” and “the feasible choice set” mean. At the level of positive constitutional theory, we can ask about the forces and institutions that condition constitutional possibility. At the level of normative constitutional theory, we can ask about the implications of constitutional possibility for political morality.

“Constitutional Possibilities” proceeds as follows. Part I introduces the idea of ephemeral constitutional possibilities. Part II will cobble together a conceptual toolkit for thinking about possibility and necessity in constitutional theory: the tools will range from the familiar distinction between ideal and nonideal theory to a quick a dirty guide to the metaphysics of modality. Part III will explore the implications of the resulting proto-theory of constitutional possibility in two stages: stage one will investigate the normative implications, whereas stage two will reconnoiter a set of standards for making modal claims in constitutional arguments. Part IV provides a case study in constitutional possibility by examining Sanford Levinson's proposal for a constitutional convention. Part V concludes with the problem of false constitutional necessity.

I confess that I feel like a quotidian clod when the constitutional theorists elevate to high theory.  But I was actually able to put one part of it in terms even I can understand (and over which I have obsessed just bit here and here over the past week or so):  reform of the Bowl Championship Series.  Sanford Levinson's proposal for reform in Our Undemocratic Constitution is Professor Solum's case study in using social science and philosophical tools to assess the feasibility of any constitutional reform proposal.

Not to trivialize the subject (but I'm a trivial person), but, among others things, what struck me in the analysis was the similarity to assessing the possibility of college football reform:

- a constitution-like structure
- highly independent and multi-leveled institutional and individual participants, plus an interested public (e.g. bowl organizers, conferences, schools, coaches, etc.)
- significant stakes in the present system
- a present system that is largely the product of historical accident
- wide perception that the system needs reform

Is the call for a playoff system among large portions of the public, many football coaches, and some college administrators, in opposition to the interests of bowl organizing committees, conferences, university presidents, and the NCAA, a parallel to Levinson's call for collective action by individual citizens to overcome Congressional and other institutional inertia?  Can Professor Solum's toolkit - of feasible choice sets, path dependency analysis, agent relativity, and the like - be employed to assess "Football Championship Possibilities?"   

http://lawprofessors.typepad.com/legal_profession/2006/12/solum_constitut.html

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