Constitutional scholar Sanford Levinson calls for a national conversation on “Our Undemocratic Constitution”
According to Sanford Levinson, the United States Constitution has a great Preamble. He calls much of what follows, however, “significantly dysfunctional” in achieving the admirable and inspiring goals of the Preamble, necessitating a serious national conversation about how to fix it. The W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair Professor of Government at the University of Texas at Austin School of Law and the author of “Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It),” Levinson spoke at the Law School on Jan. 10, a guest of the Program in Public Law.
Levinson likened the Constitution to driving a car with slick tires and lousy brakes after two drinks. We say, ‘well, we’ve always gotten home safely in the past, but as with mutual funds, past performance isn’t always predictive of what will happen in the future.” Among the Constitution’s most serious failings is its “functional impossibility of amendment,” which can also stifle discussion, he said. “If you can’t do anything about it, there are all sorts of incentives to think that it’s pretty good, because it would be awful to think that we are strapped in a kind of cage that we can’t get out of.”
On constitutional flaws according to Levinson: an electoral college “that regularly sends to the White House people who do not get the majority of the vote” and causes battleground states to be the sole focus of campaign strategy; life tenure for Supreme Court justices; the right of presidential veto on policy, as opposed to constitutional grounds; and the distribution of power in the Senate. “If one believes in any semblance of one person one vote, one cannot possibly defend the current distribution of power in the United States Senate,” said Levinson. “Would anyone defend Wyoming having the same number of votes as California?”
His book is not intended as an attack on the Framers, Levinson said. “It is not an attack on their beliefs that certain compromises were necessary in order to get the Constitution started. One of those compromises was slavery. Nobody would argue today that because collaboration with slavery was necessary to get the Constitution in the first place therefore it should be adhered to ad infinitem. Ditto with the Senate.”
Levinson urged lawyers to lead the discussion about Constitutional flaws and solutions. “Lawyers play an inordinate role of civic leadership, and one of these roles ought to be to engage in cogent discussion of what is good and what is problematic about the Constitution. We need to ‘balance our portfolio,’ between the amount of time we spend on issues that are open to interpretation, as it were, and the ‘hard-wired’ parts that … are not open to interpretation. They constitute our political system in the most profound way, and we ought to spend much more time thinking about them than we do.”
A webcast of Levinson’s talk is available at http://www.law.duke.edu/webcast/.