August 4, 2007


Constitutional Conventions: A review of Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It), by Sanford Levinson (Randy E. Barnett, Summer 2007, Claremont Review of Books)

His new book, our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It), represents an important shift in Levinson's thinking, though not in his interpretive method. While he once thought that, on the whole, the happy endings of a consistent reading of the Constitution outweighed the unhappy ones, he is now convinced that the Constitution "is radically defective in a number of important ways." In particular, he has become "ever more despondent about many structural provisions of the Constitution that place almost insurmountable barriers in the way of any acceptable notion of democracy." Still not one to evade the text's meaning, this book is Levinson's manifesto for a new constitutional convention to fix these many constitutional defects.

Our Undemocratic Constitution is two books in one. First, it provides a useful critique of several flaws in constitutionally established procedures, defects which are at least mildly disturbing. For example, he notes how difficult it would be to reconstitute Congress in the wake of a deadly terrorist attack against its members. He bemoans as well the mischief a lame-duck Congress of one party can do before its successors are sworn in, and the lengthy delay before a newly elected president takes office.

Second, the book is an impassioned critique of the "undemocratic" aspects of the Constitution. Levinson is no fan of the electoral college, or of the various choke points in the legislative process, especially the presidential veto. Nor does he care much for the pardon power. He opposes life tenure for unelected federal judges, and is positively indignant about the equal representation in the Senate that the Constitution affords every state regardless of population. He also strongly objects to the fact that incompetent and unpopular presidents get to serve out their terms, rather than being replaced (as in parliamentary systems) by their own party when the leader's fecklessness becomes apparent and public opinion turns.

His entire critique is a tribute to his textualism: he does not believe these alleged defects can be wished away by creative interpretation. But he refuses to suggest remedies, insisting that he is merely rallying a constituency for a constitutional convention where these matters will be decided, rather than pushing any particular solution to the problems he identifies. True, to make the case against the Constitution's defects, Levinson identifies alternatives from other countries, and he seems particularly fond of parliamentary systems, which have beguiled the American Left at least since Woodrow Wilson. But by failing to prescribe specific remedies for the ills he identifies, Levinson is unlikely to overcome the current resistance to constitutional reform.

The book would have been far more effective if it had included a proposal for an omnibus constitutional amendment addressing all these flaws. But because another one of Levinson's bugbears is the Article V amendment process itself—requiring a supermajoritarian approval by states with unequal populations—even suggesting a constitutional amendment runs against his grain. That's particularly unfortunate since he has no real objection to a written constitution. Simply putting his proposed fixes in written form would not have committed him to the arduous and "undemocratic" ratification process of Article V. But it would have forced him to be clear about what he is for and not just what he is against.

But Our Undemocratic Constitution has deeper problems. For a start, the book's indictment of flaws in the Constitution is at odds with its critique of "our undemocratic Constitution." Why aren't these defects being addressed by the democratic components of the current political process? After all, Levinson doesn't claim that reforms are being blocked by the "undemocratic" features of the Constitution; it seems rather that these issues just aren't attractive enough to ignite populist passions. To put it differently, there is no political incentive for democratically elected officials to look down the road and address these potentially awful results of very low probability events.

Too uninformed to vote?: We test immigrants before they can go to the polls; why not everyone else? (Jonah Goldberg, July 31, 2007, LA Times)
[M]aybe, just maybe, we have our priorities wrong. Perhaps cheapening the vote by requiring little more than an active pulse (Chicago famously waives this rule) has turned it into something many people don't value. Maybe the emphasis on getting more people to vote has dumbed-down our democracy by pushing participation onto people uninterested in such things. Maybe our society would be healthier if politicians aimed higher than the lowest common denominator. Maybe the opinions of people who don't know the first thing about how our system works aren't the folks who should be driving our politics, just as people who don't know how to drive shouldn't have a driver's license.

Instead of making it easier to vote, maybe we should be making it harder. Why not test people about the basic functions of government? Immigrants have to pass a test to vote; why not all citizens?

A voting test would point the arrow of civic engagement up, instead of down, sending the signal that becoming an informed citizen is a valued accomplishment. And if that's not a good enough reason, maybe this is: If you threaten to take the vote away from the certifiably uninformed, voter turnout will almost certainly get a boost.

While a voting test is certainly one good way to reduce the franchise and make it more consistent with principles of republicanism, there are several other reforms necessary to return the Constitution to its original less democratic footing:

(1) Repeal the 17th Amendment and return the selection of Senators to the states.

(2) Repeal the 19th Amendment or amend it to guarantee a right to vote only to married women.

(3) Repeal the 23rd Amendment.

(4) Repeal the 24th Amendment and deny the franchise to anyone who receives more in federal monies than they pay in taxes.

(5) Repeal the 26th Amendment and return the voting age to 21, possibly with an exception for those who are wed.

Taken together such reforms reflect the fundamental idea that individuals who are dependent on the state and/or insufficiently integrated into civil society are lacking in the sort of self-control, freedom from domination, and interest in the common good that a republic must require from voters in order for the political liberty which is its end to best be protected.

Posted by Orrin Judd at August 4, 2007 12:00 AM

I'm surprised that repeal of the 21st isn't on your list, too.

Posted by: Raoul Ortega at August 4, 2007 7:49 PM

Levinson does not understand our country is not a democracy in which the majority rules, ours is a "democratic republic" in which each of the fifty states, big or small, is equal to each other state, thus two senators from each state. (Sort of like the UN, a tiny little country like Iceland or Greenland has the same number of vote as the US or China.) Our system guards against tyranny of the majority, especially against Levinson's getting rid of a president when "public opinion turns". He should live in Italy where they get rid of their govt. every few months when "public opinion turns". By the way, should we get rid of Congress when "public opinion turns"? After all the current president's approval rating is about twice that of the Congress's. Levinson is so stupid, it's beyond belief.

Posted by: ic at August 4, 2007 8:25 PM

Raoul, I'm surprised that repeal of the 14th isn't on his list either. It's obvious that all OJ wants to do is deny the franchise to people who vote for Democrats. All of the "principles" that he concocts to support his position are just fluff. No doubt after they've all been disenfranchised OJ can pass legislation to burn them as "witches".

Posted by: Brandon at August 4, 2007 9:00 PM