Still Against Design: A Response to Steven Calabresi, Sanford Levinson, and Vernon Smith

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Caryn Devins, Roger Koppl, Stuart Kauffman & Teppo Felin

Our argument in Against Design may seem new, challenging, or even bizarre. One commenter, Levinson, questions whether we really mean what we say: “I presume that the authors cannot really be arguing that all design is impossible.” Given our admittedly unorthodox and perhaps radical challenge to common notions of design, we appreciate the thoughtful attention to our views given by our commenters Vernon Smith, Sanford Levinson and Steven G. Calabresi. Even when disagreeing with us, they have responded to Against Design with open minds.

But we must take responsibility for any misunderstandings. In particular, it seems we were not clear enough in explaining that constitional design will fail not because constitutional provisions will fall away. They may well endure as Levinson and Calabresi both note. What changes in unknowable, unimaginable, and unprestateable ways are the affordances of any constitutional clause, mechanism, amendment, language, passage, provision, or principle. The uses to which they will be put change in ways that often confound the intentions of those who put them there in the first place. Levinson and Calabresi both cite the two-senators rule as counterexample to our claims. But that rule now functions much differently than Hamilton imagined when he argued in Federalist 27 that the Senate would tamp the “spirit of faction.” The two-senator rule, for example, now supports “special interest legislation” directing a disproportionate share of federal government spending to small states—a result that neither the Constitution’s framers, nor supporters of the Seventeenth Amendment, would have desired. The rule now functions to make the Senate contribute to the “spirit of faction.” The rule is the same but functions differently than the designers expected. And this crisis for would-be designers, we have argued, cannot be averted. There is no fix. To paraphrase Frederick Douglass: We are in the horrible epistemic pit with no ladder upon which to get out.

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