Symposium: America's Political Dysfunction: Constitutional Connections, Causes and Cures - Table of Contents

3 Pages Posted: 28 Jul 2014

See all articles by James E. Fleming

James E. Fleming

Boston University - School of Law

Date Written: July 21, 2014


In recent years and especially in recent months, many have despaired over America’s political dysfunction. More generally, there is considerable talk of dysfunction, breakdown, and failure in the air these days. Boston University School of Law held a Symposium assessing these issues. Unlike some prior symposia, ours focused on constitutional connections, causes, and cures. Taking up the forms and manifestations of dysfunction, breakdown, and failure, the conference asked: What, if anything, does the Constitution have to do with all this? For example: Are we experiencing a constitutional failure, as distinguished from a moral failure, a political failure, an institutional failure, or a failure of policy that may or may not be directly related to the Constitution? Are the lamented dysfunction, breakdown, and failure caused by the Constitution? Do they stem from a feature or defect of the Constitution? Do they result from constitutional requirements? Are they made more likely by our constitutional design?

The Symposium addressed not only whether there are such constitutional connections to and causes of dysfunction, but also whether any proposed cures would likely alleviate it. For example, some have proposed amending the Constitution or holding a constitutional convention to adopt a new one. Will such proposals alleviate dysfunction or will the conditions giving rise to them virtually insure that they will fail?

The published Symposium consists of the follow keynote addresses and panels:

Cass Sunstein gave the opening keynote address: The Regulatory Lookback.

Panel I considered the following questions: Is dysfunction an illusion? Is all the talk about dysfunction misconceived? Perhaps this is simply how our constitutional system operates. Or maybe we are instead in a period of transition. If so, to what are we transitioning? Sotirios Barber, Mark Graber, and Nancy Rosenblum published papers on these topics.

Panel II considered whether the Constitution is responsible for electoral dysfunction, not only through its provision for the Electoral College, but also through its failures affirmatively to guarantee an equal voice in the national political process and prevent the corruption brought on by money and hyperpartisan gerrymandering. Joseph Fishkin and William E. Forbath as well as Ellen Katz published articles on these topics.

Panel III debated whether the “hard-wired features” of the structural Constitution have made America not only undemocratic but indeed ungovernable. Have these features fostered the politics of extremism or somehow undermined the spirit of compromise? Providing diverse views on these questions were Jack Beermann, Douglas Kriner and Andrew Reeves, R. Shep Melnick, Stephen Skowronek, and Jay Wexler.

Panel IV considered the question whether the Constitution has fostered a pathological rights culture of rights without responsibilities and regulation. It focused on the case of the right to bear arms and gun control. Published papers were by Joseph Blocher, Robert Cottrol, James Fleming and Linda McClain, and Robin West.

Panel V (“Utopia as Dystopia?”) debated whether we have reached a dysfunctional situation in which disagreement about constitutional visions is so fundamental that one side’s ideal is the other’s nightmare, and vice versa. Participants considered the case of radically opposed visions of federalism through a mini-symposium on Sotirios A. Barber’s The Fallacies of States’ Rights and Michael Greve’s The Upside-Down Constitution. The papers for this panel are to be published in a book symposium series in the July issue of Boston University Law Review.

Panel VI considered whether the U.S. Constitution and constitutional experience are exceptional when it comes to dysfunction? What can we learn from other nations’ constitutions and constitutional experiences? Yasmin Dawood, Ran Hirschl, Mark Tushnet, Graham Wilson, and Katharine Young published papers addressing these questions.

In light of the foregoing discussions, Panel VII considered what we should do about any constitutional dysfunction. The panelists considered proposed cures for dysfunction and these constitutional connections. Richard Albert, Ken Kersch, Gary Lawson, Sanford Levinson, and Frank Michelman wrote for this panel.

Jack Balkin gave the closing keynote address, The Last Days of Disco.

Note: PDF file contains the Table of Contents only.

Keywords: constitutional failure, political dysfunction, electoral dysfunction, crisis of governance, right to bear arms, gridlock

JEL Classification: K19, K39, K49

Suggested Citation

Fleming, James E., Symposium: America's Political Dysfunction: Constitutional Connections, Causes and Cures - Table of Contents (July 21, 2014). Boston University Law Review, Vol. 94, No. 3, 2014 (Symposium Issue) (Prof. James Fleming, Conference Organizer and Faculty Advisor), Boston Univ. School of Law, Public Law Research Paper No. 14-40, Available at SSRN:

James E. Fleming (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
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617-353-3077 (Fax)


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