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So much for the Constitution

By
November 7, 2007

Sandy Levinson has fallen out of love. The University of Texas law professor describes the history of a relationship gone bad in his book, “Our Undemocratic Constitution.”

Levinson, like Americans in general and lawyers in particular, was taught from an early age to revere the U.S. Constitution. As a legal academic, he spent much of his career studying what are considered the sexy issues in constitutional law: matters involving freedom of speech and religion, questions of racial discrimination, and so forth.

But Levinson is also trained as a political scientist, and, over time, this part of his background helped push him toward asking critical questions about what might be called the invisible Constitution: the structural features of the document that lawyers and law professors tend to take for granted.

And, the more he did so, the more he began to see things that made him wonder whether his lifelong devotion to the document made sense.

Levinson’s argument is historically rich and theoretically sophisticated, but here are a few of his key points in highly simplified form.

First, the structure of the national legislature is wildly undemocratic. What exactly is the justification for, in this the Year of Our Lord 2007, giving a senator from Wyoming approximately 70 times more power per voter represented than one from California?

In an era in which almost all of the most important political decisions are made at the national rather than the state level, the structure of the Senate essentially gives senators from small states a license to steal federal tax dollars for the benefit of their sparsely populated fiefdoms.

And, as Levinson the political scientist demonstrates, they are exceptionally good at doing so. Hence we get $50 million bridges to nowhere, economically and environmentally insane subsidies for various farming and ranching interests, and so on.

Second, the structure of the Constitution makes it very difficult to undertake any kind of serious legislative reform. Not only do both houses of Congress have to agree to exactly the same statutory provisions for a bill to become law (a requirement that, as Levinson points out, isn’t found in many bicameral legislative systems) but in addition the Constitution gives one person — the president — the power to veto legislation for any reason he (soon to be she) likes.

These extremely high barriers to legislative action can be defended on the basis of various ideological preferences (most notably the view that, in general, only rich and powerful people should be able to get laws passed). But Levinson’s point is that hardly anyone even bothers, because the structural features of the Constitution are treated as if they were equivalent to the laws of thermodynamics, rather than products of political choices made 220 years ago, and that are ripe for revisiting, given that the world has changed somewhat since the 18th century.

Third, Levinson points out that the Constitution gives us no way to get rid of an incompetent president before the next election. This, under present circumstances, seems like an especially unfortunate oversight. He suggests the president should be subject to removal at any time, on the basis of a two-thirds vote of the legislature (he’s careful to point out that such a procedure needs to be structured so as to allow the president’s party to retain the office for the rest of the president’s term).

Levinson emphasizes that he isn’t engaging in Founder-bashing. Yet even if one assumes that the men who wrote and ratified the Constitution were persons of exceptional wisdom and foresight, they were nevertheless men, not gods.

Indeed, it’s in the best American political tradition to allow ourselves to ask whether some of our most basic political arrangements need to be overthrown.

(Paul F. Campos is a law professor at the University of Colorado and can be reached at Paul.Campos(at)Colorado.edu.)

5 Responses to So much for the Constitution

  1. pcnot

    November 7, 2007 at 9:17 am

    The founders wrote as they did because they anticipated idiots like Levinson. And by the way, they established a Republic, not a democracy. That is why small states have two senators, no more no less.

  2. almandine

    November 7, 2007 at 1:18 pm

    If you’re gonna start an overthrow, there’s 537 folks in DC that would make a good start. After that, perhaps a Constitutional amendment to bar anyone from ever holding office twice. The rest of that stuff would take care of itself.

  3. spartacus

    November 7, 2007 at 1:39 pm

    Good grief!!! Remove the president from office but keep his own party in power? That was the problem in the first place! The Republicans who held power for most of the Bush presidency not only rubber stamped his disasterous policies, but enabled his madness. Had Democrats been in power early on, he’d be gone now. By the time they gained power, it was too late. Republicans would not remove a Republican president nor vice-president no matter how bad or crazy they are. Levinson is obviously also part of the problem.

    As far as his other views, this is still a government of individual states, and there are still very valid reasons for those. Levinson, again, is off his rocker. Perhaps he needs to gain a bit more understanding of this country, its history, and its people, and not the neocons running it.

  4. bjiller

    November 7, 2007 at 5:18 pm

    Saves us from ourselves.

    Thank God (or the Fates, or Lady Luck, or Joss) that the Founders had the foresight to make it difficult to pass legislation and to make the legislature “undemocratic.” Can you imagine what kind of laws we would have if it were easy for a simple majority to pass laws? We’d have legal and governmental whiplash each time control of Congress shifted parties. Every two to four years, taxes would be cut to nothing, bankrupting the country, and then bounce up to 60 or 70% and destroy economic incentive. Abortion would be legal for two years, and illegal the next two years. The document has flaws, but at least it partially saves the nation from the whiplash of largely uninformed public opinion. It was designed to prevent mob rule while allowing necessary changes in policy. In other words, it saves us from ourselves. At the same time, it does allow change when there is a persistent (six to ten year) and broad (a solid majority of state populations) consensus that change is needed. Sooner or later, we will have that consensus regarding the corruption, explicit and systemic, in both parties. That is why Ron Paul can raise $4 million in a day.

  5. adoracle

    November 10, 2007 at 4:01 am

    not to pass LAWS, but certainly to elect officials. We are lied to from birth, told that we live in a democracy, so that we don’t complain. It blows minds to hear that a person’s vote does not make a whit of difference if the electoral college disagrees. Folks will argue you to the floor over that; NO they say, we live in a democracy…if that was true, why do they tell us vote, vote, vote? Because they need you to think that you matter, that they care what you think and what you want. But it matters not at all. It frightens me a little that no one ever considers that the electoral college is a very small group of fallible human beings all equally as vulnerable to corruption as any other fallible human with great temptation right under their noses. The electoral system is a lie, a way to make sure that the people cannot take control of a country. Its the ultimate example of checks and balances…how they put you in check and maintain the present balance..One citizen, one vote is the only way to live in a truly free society.
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