To Be Revised

Book cover
Our Undemocratic Constitutionby Sanford Levinson

Oxford Univ. Press. 233p $28

The British statesman William E. Gladstone, reading the U.S. Constitution 100 years after it entered into force, remarked: The American Constitution is...the most wonderful work ever struck off at a given time by the brain and purpose of man. Generations of Americans have since regarded their Constitution with equal admiration, approaching it with a degree of reverence often reserved for sacred Scripture. Perhaps this is the reason the Constitution has been amended only 17 times since 1791. After all, you do not tamper with Scripture. Yet the founding fathers themselves recognized that they had created an imperfect instrument, many of whose provisions were compromises between large and small states. Already in 1804, the founding generation adopted the 12th Amendment to correct a flawed voting system in the Electoral College, a change designed to avoid a repetition of the deadlocked presidential election of 1800.

Of the remaining 15 amendments (13 through 27), no fewer than nine helped to remedy the original charter’s democratic deficits, five of the nine serving to enhance popular government by expanding the scope of American voting rights. Yet lately, and despite these changes, the Constitution has been severely criticized for its obsolescence and indifference to the popular will. Our Undemocratic Constitution, by Sanford Levinson, a distinguished professor of constitutional law at the University of Texas-Austin, is the most recentand harshestcritique of the nation’s founding charter. Its subtitle, Where the Constitution Goes Wrong (and How We the People Can Correct It), identifies its purpose. The author invites his readers to join him in calling for a new constitutional convention to change those failed and dysfunctional features of governance that no longer serve our democracy.

Levinson’s critique is no less than a relentless assault on the constitutionally prescribed organization and procedures of the three main branches (legislative, executive and judiciary) of the national government. His litany of constitutional deficiencies includes equal representation in the U.S. Senate, a lame-duck legislature that permits congressional parties defeated in November to cling to power until the following Jan. 4, and a presidential veto that requires for its override a two-thirds vote of both legislative chambers. This system, according to the author, is hard-wired to favor entrenched interests over popular majorities. What else can Americans expect from a Senate that accords Wyoming as much power as California, bestows equal power on the upper and lower housesresulting in a stronger model of bicameralism than most of the world’s advanced parliamentary democraciesand converts the president into a one-house legislature when he vetoes a bill on policy (as distinct from constitutional) grounds. These structures, argues Levinson, burden Americans with what is effectively and exceptionally a trilateral legislative system. In short, policy-based presidential vetoes and the two-thirds legislative override provision have transformed Congress from an internally majoritarian into a supermajoritarian institution, a structure that facilitates the ability of powerful minorities in and out of Congress to block laws the nation desperately needs and wants.

Shifting the scene to the presidency, Levinson reviles the Electoral College as a lunatic way of choosing the chief executive. The madness permits the election of a president who loses the popular vote, prompts presidential candidates to pander to voters in a small number of so-called battleground (and often low-population) states, and conduces to horse-trading when a third party candidate captures enough votes to deprive any one candidate of an electoral college majority. Without such a majority, and in the worst of all possible scenarios, the election would be cast into the House of Representatives, where, given the one-state-one-vote basis of balloting, states with no more than 20 percent of the population could conceivably elect the president. Levinson’s other targets include the 10-week interval between election and inauguration, allowing a defeated president to governand do a lot of damagein the interim; the inability to get rid of an incompetent president; a vague commander-in-chief clause that presidents have exploited to justify their exercise of unbounded power during emergencies; and the mandate that presidents be native born, reducing naturalized Americans to second-class citizenship, thus depriving the most politically astute among them from aspiring to the nation’s highest office. Finally, while conceding that the customary two-term presidency has served Americans well overall, Levinson thinks it was a bad idea to have frozen this limitation into the 22nd Amendment.

As for the Supreme Court, Levinson objects mainly to life tenure for Supreme Court justices, a view, incidentally, that has considerable support in the legal academic community. Life tenure, he argues, erodes our democracy insofar as it keeps on the bench justices who have lost touch with contemporary values and realities. The system also prompts presidents to appoint younger judges on the basis of their political and group loyalties, a practice that in turn has transposed the confirmation process into warfare along ideological lines. Limited judicial terms, which is the norm for the highest constitutional tribunals of other advanced democracies, would arguably lower the political stakes involved in selecting Supreme Court justices. Finally, the author is harshly critical of Article 5, which lays down stringent conditions for amending the Constitution. He calls the provision a constitutional iron cage. Why? [B]ecause it works to make practically impossible needed changes in our polity. He might have noted in this respect that it took 180 years before Americans adopted the 25th Amendment, a desperately needed change to make possible the removal of a disabled president.

Americans would be well advised to take these criticisms seriously. A constitution written over 200 years ago in circumstances altogether different from our complicated society of today was bound to throw up roadblocks in the path of the political democracy the United States has since become. Levinson would seem to prefer a parliamentary system of the European variety. Such a system might do away with lame duck institutions and make it easier to get rid of a chief executive who has lost the confidence of the country. But whether it would measurably improve the quality of our democracy, produce fewer deadlocked governments or more competent presidents is by no means certain.

Since a new constitutional convention is unlikely, even in the distant future, there are nevertheless reforms of a non-constitutional nature that might facilitate a larger measure of democratic governance. They include the abolition of the filibuster, a radical change in campaign financing and the reallocation of electoral votes by congressional district results. It would even be possible to fix the terms of Supreme Court justices by reassigning them to the lower federal courts after their terms expire. One suspects, however, that even these changes would be difficult to achieve in a political environment currently biased to favor special interests over the common good.

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