Constitutional Failure

Sotirios Barber

Americans err in thinking that while their politics may be ailing, their Constitution is fine. Sick politics is a sure sign of constitutional failure. This is Sotirios Barbers message in Constitutional Failure. Public attitudes fostered by a consumer culture, constitution worship, the lack of a trusted leadership community, and academic historicism and value skepticism—these, this book tells us in clear and bracing terms, are at the root of our political dysfunction.

Barber characterizes the Constitution as a plan of government—a set of means to public purposes like national security and prosperity. He argues that if the government is failing, its fair to conclude that the plan is failing and that laws that are supposed to serve as means cant in reason continue to bind when they no longer work. He argues further that constitutional success depends ultimately on a stratum of diverse and self-critical citizens, who see each other as moral equals and parts of one national community. These citizens, with the politicians among them, would be good-faith contestants regarding the meaning of the common good and the most effective means to secure it. In this way—showing how the success of a constitutional democracy is more a matter of political attitudes than of institutional performance—Barbers book upends the conventional understanding of constitutional failure. In Barbers analysis, the apparent stability of formal constitutional institutions—usually interpreted as evidence of constitutional health—may actually indicate the defining element of constitutional failure: a mentally inert citizenry no longer capable of constitutional reflection and reform.

“Confirms Barber’s standing as one of our more innovative and creative constitutional theorists. . . . His insistence that a constitution that leaves its people incapable of constitutional reform is a failure waiting to happen should become an agenda-setting call for the next generation of constitutional theorists.

—American Political Thought

“[Barber] contends the constitutional system is not coping with fiscal problems and global warming, and is not serving a permanent underclass. Constitutional malady goes deeper than fixing partisan gerrymandering and campaign finance. In particular, he addresses the Article V provision ‘No State, without its consent, shall be deprived of its equal suffrage in the Senate.’ This provision enables a small percentage of the population to veto vital policies.

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At once concise and thorough in its analysis of the concept of constitutional failure and its accounts of a healthy politics, the corrosive impact of Madisonian checks and balances (as a substitute for trust-worthy leadership), and the outlook for meaningful reform, this book offers a carefully reasoned and provocative assessment of the viability of constitutional governance in the United States.

About the Author

Sotirios A. Barber is professor of political science at the University of Notre Dame. He is the author of several books including Welfare and Constitution, On What the Constitution Means, and The Fallacies of States’ Rights.

Additional Titles in the Constitutional Thinking Series