“Political Dysfunction and Constitutional Change” | Rick Hasen
In this Essay, I briefly examine four arguments against making constitutional change to deal with current political dysfunction. The first two arguments contend that the current governmental system is not that dysfunctional. First, the current political stalemate may reflect the preferences of the median voter or the public at large. Second, the current political system actually produces a good amount of legislation, and a parliamentary democracy might produce too much rash legislation. The third argument accepts the premise that the current system is dysfunctional, but contends the dysfunction could be cured by sub-constitutional change, such as eliminating the filibuster or adopting additional open primary systems to produce more moderate candidates. The fourth argument also accepts the premise that the current system is dysfunctional, but sees that dysfunction as temporary, and expects dysfunction to be self-correcting as voters reject the current Republican Party far from the median voter, leading the Republican Party, and then Democrats, to move to the center. Evidence supporting the first three of the arguments against constitutional reform is conflicting and somewhat weak, but that the fourth argument is plausible and hard to evaluate in the midst of a potentially transformative era. We are in the middle of a highly partisan moment in American history but it is hard to know how long it will last. I conclude it is worth waiting to see if the political system self-corrects, especially given the risks of tinkering with the constitutional system and the value of not changing our constitutional traditions lightly. Given current political dysfunction which would block a move toward a parliamentary democracy in any case, waiting not only prudent but unavoidable.
