Vol. 17 No. 1 (January, 2007) pp.33-39
OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) by Sanford Levinson. New York: Oxford University Press, 2006. 248pp. Hardback. $28.00. ISBN: 0195307518.
Reviewed by Robert Justin Lipkin, Widener University School of Law. Email: RJLipkin [at] aol.com.
According to a popular conception of American politics, the United States Constitution is a perfect, or virtually perfect, charter. How often does one hear: “The genius of the Founders lies in ____”? Fill in the blanks with such constitutional virtues as “the system of checks and balances,” “splitting the atom of sovereignty,” “dividing powers thereby forestalling tyranny,” “protecting individual rights,” or a host of other virtues. Occasionally, someone mentions a possible defect such as the Electoral College, but for the most part, the conventional wisdom has it that we have inherited a wonderful charter of republican democracy, creating the longest living and oldest constitutional democracy in the history of politics. The founders bequeathed to us a foundational document that serves as an alluring beacon of democracy to fledgling republics throughout the world.
Then along comes iconoclast, Sanford Levinson, intent on blowing this popular story to smithereens. According to Levinson, the United States Constitution is filled with democratic defects, some of which represent disasters waiting to happen. Can the popular conception be so far wrong? Why is Levinson so determined to demoralize the rest of us? The answer to these questions, for Levinson, is a no-brainer. As he has conveyed before, Levinson sees American political reality replete with “constitutional stupidities” and “constitutional tragedies.”
Levinson has been a strident critic of the United States Constitution for several decades. Through his publications, lectures, and participation in symposia, and on such academic listservs as conlawprof and lawcourts, and blogs such as Balkinization, Levinson has persistently reminded us that the Constitution must earn its democratic bona fides, and to date it is not doing a good job. Now in his book, Levinson presents the full case against the Constitution. Levinson’s case sides with the Jeffersonian imperative which sees the Constitution as a work in progress to be modified or abandoned when desirable. Contrast this with the dominant Madisonian perspective, which regards the Constitution as virtually sacrosanct, to be altered only when absolutely necessary and then with extraordinary care.
Anyone familiar with Levinson’s work will recognize his careful, innovative, and lively scholarly method. Yet, his goal is not merely to add another scholarly book – even if a very good book – to the shelves of the nation’s libraries. Rather Levinson’s “fondest hope” is to reach the general public, not seasoned constitutional lawyers (p.85). [*34] Levinson has set himself a gargantuan task. He sees himself and other critics of the Constitution as modern-day Paul Reveres. However, Levinson’s task is much more difficult than Paul Revere’s, since “Revere could call on already mobilized Minutemen to confront the British” (p.170). Levinson drives home the enormity of the problem by admonishing the critics that in order to stave off disaster, we need a movement “that at the present does not exist” (p.170). Paul Revere had the Minutemen; Levinson has only hope and a vision.
This movement, as Levinson’s critique is designed to show, is “that what most of us regard as our beloved Constitution is an abusive one in important respects. The first step is to recognize the abuse. The second is to do something about it” (p.172). The “argument in this book is that our unamended Constitution has deep defects that serve as unacceptable barriers to fulfilling the ‘broad purposes’ of our national project as set out in the Preamble” (p.176). The lion’s share of Levinson’s exposition is designed to help readers realize how abusive our Constitution is. In the final chapter Levinson disappointingly, but graciously, bids farewell to those who disagree with him over the issue of whether “the Constitution is seriously defective,” and asks those who share his concerns “[h]ow can we work together to begin fixing our Constitution?” (p.168).
In order to begin the critique, Levinson’s specific tactic is to persuade the reader to vote yes on a referendum calling for a second constitutional convention. In order to determine whether to take the call for a referendum seriously, Levinson asks the reader to consider a series of questions which roughly correspond to the chapters in the book.
Before exploring these questions, some preparation is required. Appreciating the credibility and force of Levinson’s argument requires a quick exercise in “constitutional psychoanalysis.” One must be ready to dispel a perfunctory veneration of the Constitution. For Levinson, “it is vitally important to engage in a national conversation about [the Constitution’s] adequacy rather than automatically to assume its fitness for our own times” (p.5). Here Levinson accurately diagnoses a vexatious obstacle to any call for substantial change. One might call it “the Burkean death-knell” afflicting even non-Burkean progressives. We are wedded to the status quo by subliminal ties that we do not, and some of us cannot, identify. We are buoyed by what many observers fail to recognize as a tautology, namely, that what exists, works at least to the extent that it allows the status quo to persist. Significant changes threaten us deeply. This is more than merely an unhealthy dose of risk-aversion or even the recognition of the real difficulties in reconstructing political orders. It is deeper, more primordial, and more dangerous. Despite the depth of this primordial force, it hardly follows that we should capitulate. Status quo worshipping, whatever the reason, is the enemy of both the better and the best even if at times it might risk winding up with institutions that are even more undemocratic than existing ones. Expressed as veneration, it is deeply [*35] antagonistic to the spirit of republican democracy which has as its defining characteristic deliberation (p.179). Indeed, a reflexive aversion to the risk of democratic failure is anathema to deliberative democracy. Deliberative democrats must take chances; it comes with the territory. So, Levinson seems to be saying, if one needs to venerate something, venerate the process of free, unforced deliberation among political equals. With this admonition about veneration in mind, let us turn to Levinson’s questions.
The first question is whether equal representation in the Senate “giving Wyoming the same number of votes as California, which has roughly seventy times the population” makes sense [p.6, emphasis added]. For Levinson, “there is imply no defense for this other than the fact that equal representation was thought necessary in 1787 to create a constitution that would be ratified by the small states” (p.51). While Levinson does not seem to equate democracy with majoritarianism, he is nonetheless irritated by the fact that “[m]ajority rule within the Senate may have only a random relationship to majority rule within the country as a whole” (p.53). Levinson insists that “the equal representation of stunningly unequal numbers of voters has consequences that go beyond giving offense to devotees of democratic theory. Among the most serious “is a steady redistribution of resources from large states to small states” (p.59). It is miraculous that a constitutional culture committed to capitalism is able to hide from the public this welfare to the smaller states. Not that such redistribution is necessarily wrong when smaller states are in need (p.60). What is miraculous is that our constitutional culture takes this redistribution for granted, and somehow hides its consequences, justified or not.
Levinson also rejects the notion of bicameralism. For the Founders bicameralism served the purpose of permitting members of the legislative branch to represent both the people and the states. For Levinson, bicameralism seems to be just another means of distorting the community’s will. What sort of democracy – through bicameralism – routinely produces a legislature majority that does not reflect an electoral majority?
The second and third questions concern the presidency, both the manner through which we choose presidents – the Electoral College – and whether the office itself is simply too powerful for a republican democracy. Levinson asks readers whether they are comfortable in a presidential system that “has regularly placed in the White House candidates who did not get a majority of the popular vote and, in at least two cases over the past fifty years, who did not even come in first in that vote?” Levinson severely criticizes the method for selecting the executive because it often precludes the victor from receiving an electoral mandate to govern. Levinson holds up “the first past the post” system for special scorn. And the final blow is that once in office the president “can spy on Americans without any congressional or judicial authorization” and she can “frustrate the will of a majority of both houses of Congress by vetoing [*36] legislation with which she disagrees” politically (p.7).
The fourth question pertains to the life tenure of federal judges, especially Justices of the Supreme Court. Levinson questions the efficacy of Justices sitting on the bench for decades and virtually choosing the general constitutional philosophy of their successors by timing their resignations judiciously. Surprisingly, Levinson limits his critique to life-tenure and does not raise any questions about an institutional practice where Justices are supposed to review and ratify (or not) political choices made by the elected branches.
The fifth and mother of all questions concerns the torturous process required to amend the Constitution. Certainly, a simple majoritarian process is inadequate because it renders statutory and constitutional changes indistinguishable. But a severe super-majoritarian process, while preserving the distinction between statutory and constitutional, change does not permit the status quo to be altered effectively. Perhaps, the core of the democratic defects of our Constitution lies in Article V. The Constitution has been formally altered a mere twenty-seven times. How likely is it that a political order spanning a continent and home to more than three hundred million people would need a mere twenty-seven revisions, some of which are rather minor? Likely or not, Article V ties the Constitution to whatever status quo emerges and does so with a vengeance.
If Article V offers little hope of significant change, how does Levinson’s call for a second constitutional convention hope to succeed? Here is the catch. Levinson follows Akhil Amar, in regarding Article V as “limits on the agents of the people rather than on the general citizenry itself” (p.177). Consequently, the second constitutional convention can simply declare that the new constitutional text will be law if and when it is ratified by “a national referendum where each voter would have equal power” (p.177). People, not states, would authorize the new Constitution. As the only authentic sovereign, the people may go outside canonical language as it did in the first constitutional convention and in the ratification of the Fourteenth Amendment.
Of course, there are significant obstacles to carrying through Levinson’s project. Conducting the convention outside the confines of Article V is just one of them. Let me state some major problems with Levinson’s project and some quibbles. The quibbles first: I think most readers – especially lay readers the audience Levinson targets – will be surprised to learn that Richard Nixon received a plurality of the popular vote in the 1960 election. Some lay readers – looking for a reason to discredit Levinson anyway – might turn away and read no more. Levinson cites Professor George Edwards’ WHY THE ELECTORAL COLLEGE IS BAD FOR AMERICA, as proof that Kennedy lost the popular vote. Maybe so. However, Levinson should alert the reader that he is not making an uncontroversial point. Many observers believe that the 1960 election ended with Kennedy receiving 34,220,984 (49.72%) and Nixon receiving 34,108,157 [*37] (49.55%). Although, controversial, this is, at least, the conventional story. Accordingly, Kennedy should not be placed in the same category as John Quincy Adams, Rutherford B. Hayes, Benjamin Harrison, and George W. Bush. Of course, some contemporary observers reject this conventional story. And perhaps, upon reflection, we, as a nation, should reconsider it. But until that time, Levinson should have made it clear that his view departs from the conventional story, especially for the sake of his target audience.
Another quibble is that Levinson explicitly intends to write a book for the public, a noble undertaking to be sure. However, in doing so, he does not delve into the issues as comprehensively as scholars might desire. Of course, this is a quibble with Levinson’s choice of audience not his scholarly talents, which are first-rate. Ironically then, I worry that the book may require a greater familiarity with constitutional law and theory than even intelligent members of the public are likely to possess. If so, the book might fail to satisfy scholars completely, while being too difficult for the public. Hopefully, this worry will prove unwarranted.
Although not a quibble as much as a curiosity, Levinson might have advanced his cause by discussing or at least mentioning Richard Labunski’s THE SECOND CONSTITUTIONAL CONVENTION: HOW THE AMERICAN PEOPLE CAN TAKE BACK THEIR GOVERNMENT (2000). Labunski shares some of Levinson’s concerns and a brief contrast might have been illuminating. Specifically Labunski discusses Amar’s proposal for going outside of Article V and takes a position diametrically opposed to Levinson’s in this matter.
One major objection is that Levinson never states or even refers to his conception of democracy. Is it majoritarian, representative, republican or some other conception? Criticizing the Constitution for democratic failures requires explaining just what “democracy” means. Further, Levinson refers only minimally to the likely fate of rights in the next constitutional convention. Greater guarantees of their security are required to quell the fears of rights-based democrats.
Another formidable objection is that no democrat, Levinson included, can expect the convention to create all the changes he believes fundamental. Just how many changes are reasonable to expect is uncertain. Half? One quarter? The problem is that given the improbability of total reformation of our constitutional system, the new features might not sit well with the old or with one another. There is no doubt this is a distinct possibility. However, in Levinson’s defense, this is a chance a democrat takes every time there is a call for constitutional or statutory change. Unless it is virtually certain that we will worsen the situation, this sort of knee-jerk risk-aversion seems incompatible with deliberative democracy.
Let us explore this objection a little further. The second constitutional convention might backfire even from a republican democratic perspective. There are at least three possibilities here. [*38] The first occurs when the convention is hijacked by undemocratic forces and somehow through demagoguery, coercion, or intimidation ram undemocratic constitutional provisions through the convention. This would be bad indeed. But it is extremely unlikely at least as far as we can now determine. Another more likely possibility is that the convention, in good faith, will create undemocratic elements erroneously, through lack of sufficient public attention and participation. This is certainly possible, but there may be safeguards such as publicity, serious deliberation, public accessibility which will minimize the chances of this occurring. The third possibility is that changes will occur in good faith, but they will follow from a contested conception of democracy. This last possibility is probably the most likely; indeed, it is almost certain to occur. But democrats must be prepared to lose the battle for defining the terms of their constitutional culture to other democrats committed to a different, but not unreasonable, conception of republican democracy. If you can’t stand the heat of such essentially contested concepts as democracy and its cognates, choose another theory of political organization.
A more serious concern is that Levinson fails to specify, even if only tentatively, just what sorts of replacement institutions for the Senate, presidency, and so forth are appropriate. Of course, Levinson might prefer to wait for the deliberative process engaged in by the new convention. Yet, it might have been helpful had he specified roughly what some of the solutions might be. Should we draw only the conclusion that a politically motivated presidential veto must go? Or that the Constitution should not require equal representation in the Senate? How will these institutions appear after Levinsonian reconstruction?
Finally, despite Levinson’s reconstruction of permissible ways of amending the Constitution, he does not seem to consider seriously more revolutionary options. For example, former Senator Mike Gavel heads a movement, Philadelphia II, designed to transform the United States from a representative to a direct democracy. Levinson has not committed himself to direct democracy, but the method Gavel proposes of using the Internet for Americans to vote on what he calls “the Democracy Initiative” might have been explored further by Levinson. Nor does Levinson explain why more traditional forms of revolution such as demonstrations and civil disobedience are less attractive than a second constitutional convention. Although, he might reply that these alternatives are in no way inconsistent with his overarching goal of reaching a new constitutional convention.
In the end, these objections hardly derail Levinson’s project. Rather, they are issues on a to-do list for the conversation Levinson initiated. Levinson’s book deserves serious consideration by everyone concerned with the democratic legitimacy of American constitutional government. It is critical to realize, however, that those who share his worries owe him something more. If Levinson is right, or even close to being right, then just what should any [*39] self-respecting liberal or progressive do to remedy the democratic defects arising from the Constitution’s structure. This challenge should be answered by anyone close to agreeing with Levinson’s critique but skeptical of his call for a second constitutional convention. The problems he illuminates will not miraculously go away. They will persist, potentially causing havoc even when we cannot identify them as the precise causes of the havoc. If Levinson’s idea of a movement is not desirable, what sort of movement is? If no movement is the right way to proceed, what way is? If now is not the time for such action, when will it be time? Levinson’s dedication, passion, and his ability to succinctly explain his condemnation of our Constitution’s democratic defects, in my estimation, require an answer. Levinson can be satisfied, whether or not he will be, in the knowledge that he at least chose to light a candle of democratic hope rather than merely curse the darkness of the status quo.
This book should be used in any course taking the democratic defects of American constitutionalism seriously or any course wanting to expose students to the problems Levinson identifies. It should prove to be an extraordinarily effective text in a law school seminar with students preparing papers each responding to the central points in Levinson’s critique. In the final analysis, no scholar or citizen concerned with American constitutionalism or constitutionalism generally can afford to avoid confronting the arguments in this book, or if convinced by these arguments, to take action to regain the sovereignty of We the People, the only authentic fount of sovereignty in a republican democracy. The only other alternative is democratic despair.
REFERENCES:
Edwards, George, III. 2004. WHY THE ELECTORAL COLLEGE IS BAD FOR AMERICA. New Haven, CT: Yale University Press.
Eskridge, William N. Jr., and Sanford V. Levinson (eds). 1998. CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES. New York: New York University Press.
Labunski, Richard. 2000. THE SECOND CONSTITUTIONAL CONVENTION: HOW THE AMERICAN PEOPLE CAN TAKE BACK THEIR GOVERNMENT. Versailles, KY: Marley and Beck Press.
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© Copyright 2007 by the author, Robert Justin Lipkin.
 Our Undemocratic Constitution: Where the Constitution Goes Wrong (and how We the People Can Begin Correcting It)
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