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 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 constitutionalpossibilities? The importance of this question is illustrated by thestriking breadth of recent discussions, ranging from the interpretationof the United States Constitution as a guarantee of fundamentaleconomic equality and proposals to restore the lost constitution toarguments for the virtual abandonment of structural provisions of theConstitution of 1789. Such proposals are conventionally understood asplacing constitutional options on the table as real options forconstitutional change. Normative constitutional theory asks thequestion whether these options are desirable – whether political actors(citizens, legislators, executives, or judges) should take action tobring about their plans for constitutional reform or revolution.Frequently, normative constitutional theories are criticized on theground that they are undesirable, unwise, on inconsistent with the besttheories of political morality and legitimate legal authority, butsometimes one hears a very different form of criticism, expressed inlocutions such as the following: “That is unrealistic.” “That’s notpossible.” “That is pie in the sky.” “You are imagining castles in theair.” “Your suggestion is utopian.” “That isn’t feasible.” Theseobjections invoke the idea of ephemeral constitutional possibility -constitutional options that are not real or actual possibilities. 

Whatare our constitutional possibilities? How should we think about thefeasible choice set for constitutional change? What are the differencesbetween ideal and nonideal theory? What role should the ideas of pathdependency and second best play in constitutional theory? Theseinquiries cross the lines between normative, positive, and conceptualconstitutional theory. At the conceptual level, we can ask what phraseslike “constitutional possibility,” “ideal theory,” and “the feasiblechoice set” mean. At the level of positive constitutional theory, wecan ask about the forces and institutions that condition constitutionalpossibility. At the level of normative constitutional theory, we canask about the implications of constitutional possibility for politicalmorality.

“Constitutional Possibilities” proceeds as follows.Part I introduces the idea of ephemeral constitutional possibilities.Part II will cobble together a conceptual toolkit for thinking aboutpossibility and necessity in constitutional theory: the tools willrange from the familiar distinction between ideal and nonideal theoryto a quick a dirty guide to the metaphysics of modality. Part III willexplore the implications of the resulting proto-theory ofconstitutional possibility in two stages: stage one will investigatethe normative implications, whereas stage two will reconnoiter a set ofstandards for making modal claims in constitutional arguments. Part IVprovides a case study in constitutional possibility by examiningSanford Levinson’s proposal for a constitutional convention. Part Vconcludes 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?”