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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.)