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October 16, 2006

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

Our Broken Constitution

What many consider the greatest American document is in reality a blueprint for undemocratic governance.

The following article by Professor Sanford Levinson was published in the "Opinion" section of the October 16, 2006 issue of The Los Angeles Times.

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

THE UNITED STATES Constitution may be the most revered text in the nation. It is our foundational document, which our presidents pledge to preserve and protect and which our judges continue to interpret and reinterpret Talmudically more than 200 years after it was written. It is the symbol of the American democracy that we often insist is the greatest in the world.

Yet in reality, the Constitution is so far from perfect that it threatens our ability to resolve the daunting problems facing our society. It has created a political order that suffers from a "democratic deficit," a term often applied to the European Union but, alas, ever more accurate with regard to our own society.

This is not a mere theoretical failing. At the moment, for instance, more than half the country strongly disapproves of Congress and the president. Almost three-quarters of those polled believe that the United States is headed in the wrong direction. These are not the responses of an electorate that is fundamentally satisfied with the status quo.

One might argue that this is transitory, a matter of momentary antipathy toward today's incumbents — and that a turnover in next month's elections will bring renewed joy to the discontented. But that would be a mistake. It is a grim reality that our Constitution itself ensures that the results will be of far less significance than one might hope.

Begin with the fact that, whatever happens, George W. Bush will continue to occupy the White House until Jan. 20, 2009, despite the fact that about 60% of Americans disapprove of the job he's doing. Most political systems around the world have mechanisms by which leaders who lose the public's confidence can be removed. A model in this regard is Britain, where the Tories unceremoniously dispatched Margaret Thatcher when she was no longer found suitable as their leader, and where the Labor Party is in the process of doing the same with Tony Blair. Under our Constitution, although criminals can be removed, mere incompetents are protected. One need not adopt a parliamentary system in order to construct a system by which Congress could declare "no confidence" in the president and force a replacement.

For now, then, Bush retains his powers — including the power to veto legislation. This is another extraordinarily undemocratic element of the U.S. system. It allows one man to override the wishes of strong majorities and, in effect, become an independent third house of an already cumbersome legislative process. This "three-house" aspect of our legislative process is one explanation for the difficulty — often, the impossibility — of passing innovative legislation and having it signed into law.

Californians have a particularly overwhelming reason to disrespect the Constitution: Although 35 million people live within its borders, it has the same vote in the U.S. Senate as does Wyoming, which has roughly 500,000 people.

How can you defend a system under which Barbara Boxer was returned to the Senate in 2004 with about 6.5 million votes at the same time that Alaska's Lisa Murkowski won the exact same job and power with about 150,000 votes? No greater deviation can be imagined from what we like to believe is a national commitment to "one person/one vote."

Again, this is not merely a theoretical problem. Research has demonstrated that the control of 25% of the Senate's votes by states with only 5% of the national population has led to a remarkable flow of federal dollars from highly populated states such as California and New York to thinly populated but politically advantaged states. Alaska's infamous "bridge to nowhere" is all too emblematic of this reality.

In a real sense, California has even less power in the Senate than do small states, given the way that effective power is distributed. The Democrats, for example, draw their leadership almost exclusively from small states. Over the last 30 years, that party's leadership has come from Montana (Mike Mansfield), West Virginia (Robert Byrd), Maine (George Mitchell), South Dakota (Tom Daschle) and Nevada (Harry Reid). In the same period, Republican leaders came from Tennessee (Howard Baker and Bill Frist), Kansas (Bob Dole) and Mississippi (Trent Lott).

Nor does California benefit as much as one might believe from its having by far the largest number of electoral votes in the country. The reasons are simple: First, small states, guaranteed at least three electoral votes, have disproportionate voting power in the electoral college. Second, the structure of the electoral college has created a system whereby presidential candidates focus only on "battleground states" in which the electorate is closely divided.

California has not been such a battleground for many years. Thus, no candidate seeking to put together a winning coalition in the electoral college will pay much attention to California. One candidate (the Democrat) takes California for granted; the other often disdains the state. Were the United States a modern democracy in which the president was elected by a popular majority, Californians would be wooed instead of sidelined while candidates pander to ironworkers in Ohio and Cuban Americans in Miami.

These are just some of the problems with our Constitution. There's also the fact that the electoral college has put five men in the White House since World War II — Harry Truman, John Kennedy, Richard Nixon, Bill Clinton and George W. Bush — who did not win a majority (and in at least one case, not even a plurality) of the popular vote. Nor are we well served by the extended period between election day and the inauguration more than two months later, during which repudiated lame-duck presidents — think of Jimmy Carter and George H.W. Bush — retain full authority to make controversial decisions. Or by the fact that Supreme Court justices often serve for ludicrously long periods — a quarter-century has become the norm — and the appointment of youngsters such as Clarence Thomas, 42, and Chief Justice John G. Roberts Jr., 50, makes service of 30 or 40 years all too likely. What's more, they are then able to time their resignations to ensure that their successors are chosen by presidents who share their political ideology.

To believe that our Constitution is perfect — or even truly adequate to the world we live in — is equivalent to believing that it is safe to continue driving a car with bad brakes and dangerously worn tires. Even if we have been able to make trips safely in the past, we are criminally negligent in believing that we can continue to do so.

Alas, the U.S. Constitution is not like New York's, which contains a provision asking New Yorkers every 20 years whether they want to hold a convention to rethink and revise the document. (Instead it is extraordinarily difficult to amend the U.S. Constitution. A mere 13 legislative houses in separate states can block an amendment supported by the overwhelming majority of Americans.)

This does not free us, though, from the duty to reflect on the adequacy of the Constitution and to take measures to lessen the unacceptable risks that it poses to "government of the people, by the people, and for the people."

Related Links:
About Professor Levinson:
http://www.utexas.edu/law/faculty/svl55/
Our Undemocratic Constitution:
http://www.utexas.edu/law/faculty/slevinson/undemocratic/
Sanford Levinson Discusses the Flaws in the U.S. Constitution in The Chronicle of Higher Education, Oct. 13: http://www.utexas.edu/law/news/2006/100906_che.html
Sanford Levinson Argues that Presidential Vetoes are Undemocratic in The New Republic, Oct. 9: http://www.utexas.edu/law/news/2006/100906_tnr.html