Time for a Constitutional Convention?

Sanford Levinson’s critique of the US Constitution and proposal for a new constitutional convention in his Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) have persuaded me that it is high time to rethink the structure of the government. GW Bush has famously declared the Constitution a “f***ing piece of paper” and has otherwise manifested disdain and contempt for the constitutional order, especially when it is invoked to limit his power. Levinson, in contrast is as respectful of the founders and the rule of law as anyone, but he reckons that the Constitution is not Holy Writ and that we ought not venerate the work of the founders so much that we stick with some of their political compromises and experiments even when they no longer serve the purposes set out in the Preamble.

Levinson reveals his political biases and points out that his own preferred party sometimes benefits temporarily from the flaws in the Constitution; however, he argues that an honest critique of the document requires one to set aside such considerations. If one is committed to the ideal of democracy, one must be ready to accept that one’s positions may not always prevail.

Levinson finds the Constitution undemocratic on several counts. He is not necessarily a majoritarian, and I read his book as espousing a more consensual form of government. The basis of much of the critique is that the government is not even majoritarian and that the Constitution permits a minority to govern to the exclusion of the majority as is evidenced by the recent GOP domination of all the branches of government. There was nothing consensual about the GOP Congress and Bush White House and their shameless interpretation of their slight plurality of support as a “mandate”.

Among the problematic aspects of the Constitution discussed are the undue influence of voters and legislators from small (less populous) states. As a denizen of New York, I have Senators who must appeal to millions of constituents with a diversity of interests. A denizen of Wyoming has Senators who must appeal to only a few hundred thousand with relatively homogeneous interests. My Senators don’t have the leisure to spend time in the leadership or to devote to single interests and are required to campaign much more than the Senators from Wyoming or Utah. Equal representation in the Senate for small states was a political compromise in 1787 to induce small states to ratify the Constitution. It really had no other rationale, and since Senators have been elected by popular vote for some 80 years now there is no longer a good argument that the Senate is the representative of the states themselves.

Levinson points out that in 2006, although the GOP had 55 Senators, those Senators represented less than half of the population and half of the voters. It is no surprise then that small states get more in federal largesse than they pay in federal taxes, while large states get the short end of the stick. This is patently unfair and undemocratic.
A similar argument can be made for abolishing the Electoral College and for the extra votes enjoyed by small states. Presidential politics are no longer about getting the most votes but putting together enough electoral votes, and unless you are in one of the handful of “swing states” your preference is irrelevant. Why would the candidate from either of the two hegemonic parties spend a dime to get a single additional vote in New York?

Levinson also points out just how close presidential elections have been to being thrown into the House where each state gets one vote. Moreover, no recent victor in a presidential election has been chosen by a majority of the voters. Why, asks Levinson, should the individual who gets past the gate first be chosen when he clearly had more people against him than for him? We would be better served by a run off system or a system in which voters selected three candidates in order of preference. This would insure that the president enjoyed a broad base of support and not just a plurality handed to him through the efforts of a fringe base constituency.

The presidential veto is also called into question. The virtually unlimited veto power in effect makes him a third legislative branch. Why not limit the veto to Constitutional issues with the ultimate decision on Constitutionality resting with a Constitutional court?

Life tenure of Supreme Court Justices comes under cogent criticism. Levinson proposes, among other alternatives, an 18 year term. In my view, the possibility of three more decades of Roberts, Alito and Scalia is a dismal prospect for the country.

Some other issues that Levinson takes on with clarity include: the tendency to presidential dictatorship, the lack of a good plan to reconstitute Congress in the event of a catastrophic attack on that institution, the lag between election and inauguration especially of a repudiated incumbent, the difficulty of getting rid of a president who is merely incompetent rather than criminal, and bizarre qualifications for office that no longer make any sense. Some of the advantages of a Parliamentary system are invoked.

For my part, I would add that there are many perfectly appropriate provisions of the Constitution which have been horribly misconstrued. A new Constitution would have to be more explicit about these. For example, that the “executive power” resides in the president should not be construed as acknowledging any executive powers that aren’t specifically laid out. That the president is subject to the law must, sadly, be set forth explicitly thanks to John Yoo and his ilk.

I would support a Constitutional convention, and I would leave nothing off the table.