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October 9, 2006

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Kirston Fortune, Assistant Dean for Communications, (512) 471.7330 or kfortune@law.utexas.edu.

It Is Time to Repair the Constitution's Flaws

The following article by Professor Sanford Levinson was published in the October 13, 2006 issue of The Chronicle of Higher Education (Volume 53, Issue 8, Page B10).

Photo of Professor Sanford Levinson
Professor Sanford Levinson
Photo Credit: Grant Guerrero

In 1987 I went to a marvelous exhibit in Philadelphia commemorating the bicentennial of the drafting of the U.S. Constitution. The exhibit concluded with two scrolls, each with the same two questions: First, "Will You Sign This Constitution?" And then, "If you had been in Independence Hall on September 17, 1787, would you have endorsed the Constitution?" The second question emphasized that we were being asked to assess the 1787 Constitution. That was no small matter inasmuch as the document did not include any of the subsequent amendments, including the Bill of Rights. Moreover, the viewer had been made aware in the course of the exhibit that the Constitution included several terrible compromises with slavery.

Even in 1987, because of those compromises I tended to regard the original Constitution as what the antislavery crusader William Lloyd Garrison so memorably called "a covenant with death and an agreement with hell." So why did I choose to sign the scroll? I was impressed that Frederick Douglass, the great black abolitionist, after an initial flirtation with Garrison's rejectionism, endorsed even the antebellum Constitution. He argued that, correctly understood, it was deeply antislavery at its core.

The language of the Constitution — including, most importantly, its magnificent preamble — allows us to mount a critique of slavery, and much else, from within. The Constitution offers us a language by which we can protect those rights that we deem important. We need not reject the Constitution in order to carry on such a conversation. If the Constitution, at the present time, is viewed as insufficiently protective of such rights, that is because of the limited imagination of those interpreters with the most political power, including members of the Supreme Court. So I added my signature to the scroll endorsing the 1787 Constitution.

On July 3, 2003, I was back in Philadelphia to participate in the grand opening of the National Constitution Center. The exhibit culminated in Signers' Hall, which featured life-size (and lifelike) statues of each of the delegates to the constitutional convention. As one walked through the hall and brushed against James Madison, Alexander Hamilton, and other giants of our history, one could almost feel the remarkable energy that must have impressed itself on those actually in Independence Hall.

As was true in 1987, the visitor was invited to join the signers by adding his or her own signature to the Constitution. Indeed, the center organized a major project during September 2003 called "I Signed the Constitution." Sites in all 50 states were available for such a signing. Both the temporary 1987 exhibit and the permanent one that remains at the National Constitution Center leave little doubt about the proper stance that a citizen should take toward our founding document.

This time, however, I rejected the invitation to re-sign the Constitution. I had not changed my mind that in many ways it offers a rich, even inspiring, language to envision and defend a desirable political order. Nor did my decision necessarily mean that I would have preferred that the Constitution go down to defeat in the ratification votes of 1787-88. Rather, I treated the center as asking me about my level of support for the Constitution today and, just as important, whether I wished to encourage my fellow citizens to reaffirm it in a relatively thoughtless manner. As to the first, I realized that I had, between 1987 and 2003, become far more concerned about the inadequacies of the Constitution. As to the second, I had come to think that it is vitally important to engage in a national conversation about its adequacy rather than automatically to assume its fitness for our own times.

My concern is only minimally related to the formal rights protected by the Constitution. Even if, as a practical matter, the Supreme Court reads the Constitution less protectively with regard to certain rights than I do, the proper response is not to reject the Constitution but to work within it by trying to persuade fellow Americans to share our views of constitutional possibility and by supporting presidential candidates who will appoint (and get through the Senate) judges who will be more open to better interpretations. Given that much constitutional interpretation occurs outside the courts, one also wants public officials at all levels to share one's own visions of constitutional possibility — as well, of course, as of constitutional constraints. And that is true even for readers who disagree with me on what specific rights are most important.

So what accounts for my change of views since 1987? The brief answer is that I have become ever more despondent about many structural provisions of the Constitution that place almost insurmountable barriers in the way of any acceptable contemporary notion of democracy. I put it that way to acknowledge that "democracy" is most certainly what political theorists call an "essentially contested concept." It would be tendentious to claim that there is only one understanding — such as "numerical majorities always prevail" — that is consistent with "democracy." Liberal constitutionalists, for example, would correctly place certain constraints on what majorities can do to vulnerable minorities.

That being said, I believe that it is increasingly difficult to construct a theory of democratic constitutionalism, applying our own 21st-century norms, that vindicates the Constitution under which we are governed today. Our 18th-century ancestors had little trouble integrating slavery and the rank subordination of women into their conception of a "republican" political order. That vision of politics is blessedly long behind us, but the Constitution is not. It does not deserve rote support from Americans who properly believe that majority rule, even if tempered by the recognition of minority rights, is integral to "consent of the governed."

I invite you to ask the following questions:

1. Even if you support having a Senate in addition to a House of Representatives, do you support as well giving Wyoming the same number of votes as California, which has roughly 70 times the population? To the degree that Congress is in significant ways unrepresentative, we have less reason to respect it. It is not a cogent response, incidentally, to say that any such inequalities are vitiated by the fact that the House of Representatives is organized on the basis of population, putting to one side issues raised by partisan gerrymandering. The very nature of our particular version of bicameralism, after all, requires that both houses assent to any legislation. By definition, that means that the Senate can exercise the equivalent of an absolute veto power on majoritarian legislation passed by the House that is deemed too costly to the interests of the small states that are overrepresented in the Senate, especially those clustered together in the Rocky Mountain area and the upper Midwest.

2. Are you comfortable with an Electoral College that, among other things, has since World War II placed in the White House five candidates — Truman, Kennedy, Nixon (1968), Clinton (1992 and 1996), and Bush (2000) — who did not get a majority of the popular vote? In at least two of those elections — in 1960, for which evidence exists that Nixon would have won a recount, and in 2000 — the winners did not even come in first in the popular vote. The fact is that presidential candidates and their campaign managers are not necessarily trying to win the popular vote, except as an afterthought. Instead they are dedicated to putting together a coalition of states that will provide a majority of the electoral votes.

3. Are you concerned that the president might have too much power, whether to spy on Americans without any Congressional or judicial authorization or to frustrate the will of a majority of both houses of Congress by vetoing legislation with which he disagrees on political, as distinguished from constitutional, grounds? At the very least, it should be clear from recent controversies that the present Constitution does not offer a clear understanding of the limits of presidential power, particularly during times of presidentially perceived emergencies.

4. Are you concerned about whether the country is well served by the extended hiatus between election day and the presidential inauguration some 10 weeks later, during which lame-duck presidents retain full legal authority to make often controversial decisions? Imagine if John Kerry had won the 2004 election, and President Bush had continued to make decisions about policy on Iraq, Iran, and North Korea that would have greatly affected his administration. Much of the hiatus is explicable only with regard to the need for the Electoral College to operate (which serves as an additional reason to eliminate that dysfunctional institution).

5. Are you satisfied with a Constitution that, in effect, maximizes the baleful consequences of certain kinds of terrorist attacks on the United States? If a successor to United Flight 93 were to succeed in a catastrophic attack on the House of Representatives and the Senate, we could find ourselves in a situation where neither institution could operate — because the Constitution makes it impossible to replace disabled (as distinguished from dead) senators or to fill House vacancies by any process other than an election. That would contribute to the overwhelming likelihood of a presidential dictatorship. The Constitution is written for what is termed "retail" vacancies, which occur only occasionally and are easily subject to being handled by the existing rules. Should "wholesale" vacancies occur, however, the present Constitution is nothing less than a ticking time bomb.

6. Do you really want justices on the Supreme Court to serve up to four decades and, among other things, to be able to time their resignations to mesh with their own political preferences as to their successors?

7. Finally, do you find it "democratic" that 13 legislative houses in as many states can block constitutional amendments desired by the overwhelming majority of Americans as well as, possibly, 86 out of the 99 legislative houses in the American states? No other country — nor, for that matter, any of the 50 American states — makes it so difficult to amend its constitution. Article V of our Constitution constitutes an iron cage with regard to changing some of the most important aspects of our political system. But almost as important is the way that it also constitutes an iron cage with regard to our imagination. Because it is so difficult to amend the Constitution — it seems almost utopian to suggest the possibility, with regard to anything that is truly important — citizens are encouraged to believe that change is almost never desirable, let alone necessary.

One might regard those questions as raising only theoretical, perhaps even "aesthetic," objections to our basic institutional structures if we feel truly satisfied by the outcomes generated by our national political institutions. But that is patently not the case. Consider the results when samples of Americans are asked whether they believe the country is headed in the right or the wrong direction. In April 2005, a full 62 percent of the respondents to a CBS poll indicated that they believed that the country was headed in "the wrong direction." A year later, a similar CBS poll found that 71 percent of the respondents said that the country was "on the wrong track," with unfavorable ratings for Congress and the president, and only a slim majority approving of the Supreme Court. Surely that comprehensive sense of dissatisfaction is related for most Americans to a belief that our political institutions are not adequately responding to the issues at hand. Serious liberals and conservatives increasingly share an attitude of profound disquiet about the capacity of our institutions to meet the problems confronting us as a society.

To be sure, most Americans still seem to approve of their particular members of Congress. The reason for such approval, alas, may be the representatives' success in bringing home federally financed pork, which scarcely relates to the great national and international issues that we might hope that Congress could confront effectively. In any event, we should resist the temptation simply to criticize specific inhabitants of national offices. An emphasis on the deficiencies of particular officeholders suggests that the cure for what ails us is simply to win some elections and replace those officeholders with presumptively more virtuous officials. But we are deluding ourselves if we believe that winning elections is enough to overcome the deficiencies of the American political system.

We must recognize that substantial responsibility for the defects of our polity lies in the Constitution itself. A number of wrong turns were taken at the time of the initial drafting of the Constitution, even if for the best of reasons given the political realities of 1787. Even the most skilled and admirable leaders may not be able to overcome the barriers to effective government constructed by the Constitution. In many ways, we are like the police officer in Edgar Allen Poe's classic The Purloined Letter, unable to comprehend the true importance of what is clearly in front of us.

If I am correct that the Constitution is both insufficiently democratic, in a country that professes to believe in democracy, and significantly dysfunctional, in terms of the quality of government that we receive, then it follows that we should no longer express our blind devotion to it. It is not, as Thomas Jefferson properly suggested, the equivalent of the Ark of the Covenant. It is a human creation open to criticism and even to rejection. You should join me in supporting the call for a new constitutional convention.

Sanford Levinson is a professor of law at the University of Texas Law School. This essay is adapted from Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It), to be published next month by Oxford University Press. Copyright © 2006 by Oxford University Press.

Related Links:
About Professor Levinson: http://www.utexas.edu/law/faculty/svl55/
Our Undemocratic Constitution: http://www.utexas.edu/law/faculty/slevinson/undemocratic/