It seems that one of the flaws in this week's discussion of constitutionalism is the idea, introduced by author Michael Signer, that present day America is an example of constitutionalism at its practical best.   Signer argues that our devotion to the principles of the constitution has left us with a stable political system and an imperfect but nonetheless effective restraint on any charismatic demagogue who might seek to gain power and influence.

Rachel Kleinfeld joined the discussion and made two points that interested me: first that the disputed election of 2000 went smoothly because of constitutionalism in our culture and second that the American people need to be more involved and to take a greater interest in politics in order to keep the government from committing acts of torture, domestic spying or anything else we might not like.  Both of these points seem obvious but are problematic for reasons I'll get into in a sec.

Some of us engaged Signer on his characterization of Hugo Chavez as a demagogue.  Signer defended his characterization and Michael Lind offered some very nuanced (and much appreciated by me) support.  Indeed, I'm convinced.  Chavez is a demagogue.  I just don't think he's a bad one.

Because if constitutionalism functions the way Signer and the other commentators on his book say it does, I'm not sure that's such a good thing.  Let's take Kleinfeld's example of the 2000 election.  Is it really a good thing that we got a president who lost the popular vote, lost the electoral college because of a dodgy recount run by his brother's political cronies, and then was installed in the White House by a Supreme Court largely appointed by his father, and there weren't riots in the streets?  That, my friends, is a proper cause to riot. An abiding respect for the constitution shouldn't inspire people to stand idly by while the highest office in the land is stolen.

I suspect, though, that two things other than constitutions kept people from rioting in 2000: apathy (most people didn't even vote, so they're not going to get worked up over the results) and fear of the police who have a history of taking extreme action against protesters.

I agree with Kleinfeld's second point that we need a more interested and informed citizenry as a check on government power.  But how can citizens stop the government from acting in secret, especially when the government appeals to the constitution and laws deemed constitutional in support of its secret actions?  You can't stop the torture you don't know about.  You can't stop domestic wiretapping unless the New York Times exposes it.  And in that case, even when the government extra-constitutional actions were exposed, what did the people's representatives do?  They changed the laws so as to codify the government's behavior!

It's hard to separate Signer's constitutionalism for the simple :"rule of law."  And yes, having a society where the rule of law means something is important but we have to ask who our laws are serving -- should we really respect laws that favor the rich over the rest of us?  Because that's what we have now.

When Michael Signer gives his closing statement tomorrow or over the weekend, I'd like him to answer a simply worded but complicated question: "Whose constitutionalism?" 

I'm not convinced that what he's talking about is serving the American people well at all, so I'm light years away from believing that we should even be talking about trying to export it.