Author: David Orentlicher

1

Consensus and the Constitution

Last week, I mentioned my proposal for a bipartisan executive as a way to defuse partisan conflict in Washington. Earlier this week, in his Ideas column in the Boston Globe, Leon Neyfakh considered the possibility of a bipartisan executive, as well as other remedies that have been proposed for the dysfunction in our national government, including Sandy Levinson’s “Undemocratic Constitution” and the “unbundled executive” of Christopher Berry and Jacob Gersen.

As Neyfakh observes, whether or not we adopt any of these proposals, our consideration of them may lead us to reforms that can make for a more effective political system. With my book, I want people to pay more attention to the connection between dysfunction in Washington and the framers’ decision in favor of a single rather than plural executive.

A bipartisan executive not only could address the problem of partisan conflict, it also would respond to the problem of the imperial presidency. The failure of external checks on presidential power makes an internal check desirable. The framers weakened legislative power by dividing it and requiring it to be shared by a House and Senate. We can rebalance power between the executive and legislative branches by dividing the executive power and requiring that it be shared.

4

Consensus and the Constitution

Gerard posted an interesting perspective yesterday on the ways in which the Constitution magnifies the power of the majority, but I’m not sure they serve the consensus-building role that Gerard suggests. As Arend Lijphart has argued, and I do as well in my forthcoming book (Two Presidents Are Better Than One), our winner-take-all elections and other majority-centric policies encourage partisan conflict and gridlock. For consensual government, I would look to Switzerland and its system of power sharing rather than our system of majoritarian government. What I like about Switzerland is the principle that the major parties share the executive power, and the executive branch operates by consensus rather than by majority vote.

Of course, proportional representation systems can break down too, but all that tells us is that constitutional drafters have to be careful how they arrange power sharing in their political systems. For example, setting the threshold too low for representation in the government can give small parties too much leverage. The U.S. may have done reasonably well with presidential government, but as the Latin American experience reflects, the worldwide experience is not so good.

5

Posthumous Sperm Retrieval

When I read the Supreme Court’s opinion on Social Security survivor benefits for children whose genetic fathers died before their sperm were used to fertilize the mothers’ eggs, I was reminded how fussy we can be about retrieving sperm from deceased men. (In the Supreme Court case, the man’s sperm had been frozen while he was still alive.)

Consider, for example, the difference between taking sperm and taking organs from a dead person. If a man did not object while alive, family members may freely authorize retrieval of the man’s heart, liver, kidneys and other organs after his death for transplantation. However, physicians and ethicists are much more skeptical about retrieving sperm from a deceased man without his prior authorization and for use by anyone other than a spouse. According to the ethics guidelines of the professional association for fertility specialists, a “spouse’s request that sperm or ova be obtained terminally or soon after death without the prior consent or known wishes of the deceased spouse need not be honored.”

Why the different treatment? What interest does a dead man have in taking his sperm to his grave? In the usual case, the decedent’s spouse wants to use the sperm to have a child, and that seems like a reasonable request. It’s difficult to see how the man would be harmed, and he might even have authorized her use had he thought about it while alive.

Is there any reason to limit sperm retrieval to spouses? What if the man died without a partner, and his sister wants to use his sperm for artificial insemination of her same-sex spouse? What if he is a celebrity (say James Dean), and some of his fans want to have a child with his sperm? As Guido Calabresi has argued, we get our body parts as a matter of fortune, so why let people keep them when they are no longer of any use to them? Glenn Cohen has discussed the interest of people in not having parenthood attributed to them involuntarily while alive, and our children can affect how we are viewed by others, so maybe the interest in controlling one’s legacy is sufficient to deny sperm to strangers. Still, it’s not clear that we should privilege such an interest if the person has died (and the estate is relieved of any support obligations).

(And thank you very much, Gerard et al., for the opportunity to blog as a guest this month.)