The U.S. Constitution is Not Democratic—and Why That’s a Good Thing
Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It). Oxford University Press, 2006.
Sanford Levinson is very upset. As he sees it, the United States Constitution fails to uphold the principles of the American nation, and something needs to be done about it. Our Undemocratic Constitution is his case for a national referendum on calling a new constitutional convention to revise the Constitution to bring it into the 21st century.
What are the principles the national Constitution is supposed to further? They include those of the Preamble, asserts Levinson. Insofar as it does not conduce to the achievement of “a more perfect union,” say, “promote the general welfare,” or “secure the blessings of liberty,” then, the Constitution needs to be changed.
Those are not the only principles Levinson identifies as fundamental. Also fundamental are equality and democracy. Levinson knows that these are fundamental, and the Constitution does not serve them, so it needs to be amended to allow them to be followed, too.
Levinson points to several provisions of the Constitution as contrary to principles such as equality and democracy. He is especially exercised about the structure of the U.S. Senate and of the Electoral College, each of which skews outcomes in favor of less populous states. This is undemocratic, says Levinson, and cannot be tolerated.
Why not? Well, because the small states are … small, because their populations are whiter than the country at large, and because they are less economically heterogeneous than the country at large. Levinson provides numerous examples of ways that the equal representation of states in the Senate affects federal allocation of expenditures and the shape of federal policies, and for him, this is a Bad Thing.
Why does Levinson consider this to be so terrible? Because of the obstacles it puts in the way of the population’s preferred policies. He does not say why more consistent adoption of the numerical majority’s preferred policies would be better, but merely takes it for granted. One must imagine that he has some reason, for he betrays a certain inconsistency in this regard.
Thus, for example, Levinson repeatedly expresses support for the de facto system of constitutional amendment by judges under which Americans have groaned for generations now, even as they were assured that the judges were actually obeying, and not simply ignoring, the Constitution. In fact, he says that what frustrates him about the structures of the U.S. Senate and the Electoral College is that no obvious way to have judges “correct” them (as they “corrected” the analogous structures of state senates in the 1960s) comes to mind.
In fact, Levinson’s entire case against the federal Constitution actually comes to this: we liberal legal academics, in tandem with federal judges, have succeeded in rewriting much of the federal Constitution to our liking through “interpretation,” but there are some elements of the document that the people ratified in the 1780s of which we cannot rid ourselves in that way, so now we need to adopt more radical measures.
It was not the people in the ratification process who opted for a national, rather than a federal, constitution. That was given them by such as Sanford Levinson. It was not the people who made the Preamble a statement of national principles instead of a statement of the purposes of a federal Constitution. That is being done for them by such as Sanford Levinson.
Or perhaps I give Levinson too much credit. Really, he does seem to be ignorant of much of the history I set out in The Politically Incorrect Guide to the Constitution. Then, what could one expect, as knowing the actual history of the Constitution is not a law professor’s stock-in-trade? Levinson does not deny this; in fact, he is the professor I mentioned in that book as having told one of his students that the reason his introductory class in constitutional law would not be reading any of The Federalist was that that book had nothing to do with constitutional law.
Yet, his disinterest in constitutional history impedes Levinson’s effort to make his case. Thus, for example, he opens the book with an extended passage from Thomas Jefferson lamenting people’s tendency to look to the Constitution’s framers as having had some special wisdom. Levinson refers to this passage later in the book, too. The reader can be forgiven for not knowing that the constitution Jefferson actually was campaigning to revise was not the U.S. Constitution, but the Virginia Constitution of 1776, because Levinson evidently does not know. There are other such historical errors in Levinson’s book, as well.
Levinson repeatedly describes his participation in constitutional conferences with senators and other eminences. One wonders why such people inquire of law professors concerning such matters, when legal training does not provide them with any special constitutional expertise, with any knowledge of the history of the writing and ratification of that document—only with mastery of a raft of (generally historically unfounded) judicial opinions.
The reason why the U.S. Constitution is not structured in the way that a national constitution would be is that it was not intended to create a national government. Majority rule is impeded throughout the system precisely because the states wanted the federal government to be inefficient; they feared that an efficient (national) government would strip them of their reserved powers. Silly fear, right?
As Levinson and his ilk have given the federal government the powers of a national one, it is they who have introduced distortions into the system. The method of selecting a truly federal chief executive, for example, or solely judicial judges, would not be a matter of much concern. It is because Levinson and Company agree that presidents must have untrammeled authority in foreign affairs and federal judges rightly may legislate that the methods of selecting them established by the Constitution seem inappropriate — to Levinson and Company.
Levinson would resolve this problem by going the whole way, by converting the federal government at last into a perfectly national one. He would begin via an unconstitutional referendum. Take note, you who do not worry over the tendency toward increasing judicial legislation: this is the impulse from which judicial legislation springs. Its urge is to have its way, and restraints on authority be damned!
Levinson does have one big point right: the current federal system is theoretically incoherent. One could correct for this fact by confining the federal legislature, the Congress, to the powers listed in the Constitution, chiefly in Article I, Section 8, as the Federalists said they would in the ratification debates in Virginia, New York, South Carolina, Massachusetts, and New York, and as the Tenth Amendment commands.
If apportionment of the Senate is a problem, one could correct for it by subdividing each of the mega-states, such as California, New York, Texas, Florida, Pennsylvania, and Illinois, into numerous smaller states. Not only would this provide more senators to the people who live there, but it also would make it easier for average citizens to affect state-level policy in the smaller states that would be the result. Significantly, this reform also would be perfectly constitutional.
Which helps to explain why Sanford Levinson will not endorse it.
Kevin R. C. Gutzman is the author of The Politically Incorrect Guide to the Constitution, Virginia’s American Revolution: From Dominion to Republic, 1776-1840, and, with Thomas E. Woods Jr., Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush (forthcoming in July).
Comments
Ugh! The 17th Amendment was bad enough. This guy (Levinson) is cracked, and dangerous. Obama and Hilary will take him to heart if elected. One can only hope that McCain will not.
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From the preamble: “ourselves and our posterity”.
Levinson belongs to a quite different ‘American nation’ to the one whose constitution he attacks.
No doubt his ‘America’ will one day develop its own constitution, but the real America must free itself from hostile parasites like Levinson first.
That shouldn’t be a problem. His ‘America’ readily grants to Albanians in Serbia the right to secede, so will presumably support an independence movement of Old Stock Americans and the People of the Constitution just as happily.
No?
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Sanford Levinson:
http://www.news.harvard.edu/gazette/2006/11.02/photos/9-torture1-450.jpg
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Kevin is to be thanked for showing us the obvious, that
the shills of leftwing managerial tyranny are well-
entrenched in elite universities.
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Mr Gutzman I enjoyed reading your book...the “Declaration of Independence”, which only passed by one vote...was a declaration of “national” independence....not personal independence...the nationalisation “push” had been in the works since Franklin’s Albany Project in 1754....ALL our “foundering fathers” were heavily invested in “land deals” everywhere but especially west of the Alleghenies( hell, every colony was a land deal(charter//payback from the winner//loser of the latest English Civil War), not a “state")....thus the “resolution” of the Seven Years War....the first “World War” was not favorable to their real estate speculations...nor supportive of the loans they had taken out to finance them....England, of course, enlarged their prescence in the colonies from a regulatory to also a revenue one...in attempt to pay for their very expensive war with France...that’s what got the ball rolling...fast forwarding....the Morris-Washington-Hamilton-Paine group was clearly on the “inside”....and the Madison-Mason-Henry-Jefferson group was on the “outside” of the inside...their was absolutely NO difference in principle...just in positioning(access)....Federalists & Anti-Federalists all shared the same goals & ambitions...it was only who was going to get to call the tune...the Constitutional Convention was a coup....held in secrecy....its records maintained in secrecy for forty years...the word “empire” was used exclusively....the word freedom was never mentioned...and the bulk of the time was spent “negotiating” tariffs...constitutions are “espoused” to regulate the state...civil laws are intended to regulate the individual....the Bill of Rights was never included and only offered begrudgingly, out of neccesity, to get the “incorporation” done...that is why they had “Madison” write it...they knew he wouldn’t do anything silly....even with this Bill of Rights....which most Americans have always considered to be the “Constitution”...the whole scam barely passed...and only with shenanigans that would make Daley, Johnson & Diebolt blush...overall,like every other example....the whigs did the tories bidding...they too aspired to be right tories some day....so to finally get to the point....the constitution was merely the “legalizing” of crimes past, present & future...no contract exists without the parties being able to enforce or exit absent enforcement...it took the Civil War....which started in 1790 not 1860 to establish...as we all now know...this is no Bill of Rights, there is no separation of power...there is no consent of the “governed”....it is now exactly what it was always intended to be in 1790(which is something the Paulistas don’t seem to appreciate)....the few livin’ off the many...the latifundia & the merchant princes, messaged by their accompanying “court pens” holdin’ up the “levee un grand masse”...it always comes down to the debt...who goin’ to make me whole...nationalization is neccessary to compell the assumption & payment of debt...that’s what all Philidelphias” are about & nothin’ more...Profs Holton & Bouton & Shalhope have done commendable work on this very disturbing problem.
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It’s more than a little worrisome that all these eggheads are circling our foundation charter, whispering disparagement that it’s “small town” and “out of step” with our new imperial enterprise. From what I gather in Mr. Gutzman’s article and other reviews, Levinson seems to envision a federal government even more centralized and pervasive than today. Now, that’s not to imply that he’s out of step with current trends: The shift is toward a tightly controlled, big, mushy world where everyone marches in lockstep, free of individual thought and cultural uniqueness. Where all the high-falutin the revolutions of the past 150 years smashed on the impartial-but-pitiless riprap of reality, globalization has renewed the spirit of one-world “healing.” And one world means one, big, starkly powerful global government, with a self-anointed, all-knowing elite to guide it though the rocky shoals.
There will have to be some changes made, some give and take. For instance, some cockfighting tribal chieftaincies on the other side of the world may not like the idea of free speech. And they may like women in tents, i.e., WEARING tents, top to tippy-toe. We’re already becoming accustomed to time-honored management techniques like torture and dungeon networks. In time, we’ll have to get used to other changes. Necessary - and sometimes brutal - changes.
We may think it absurd that all of this – this inside/out perversion of everything we stand for – could possibly occur. But consider this: Every few years or so, some Eastern Establishment poobah or Ivy League gasbag makes a thoroughly obscene proposal which in short order becomes our standard operating procedure. They all listen to each other. The outhouse ruminations of one political priest is taken up, bandied about, applauded and fussed over, and soon become part of the rulebook for the rest of us.
Alan Dershowitz advocated legalizing torture (or, at least setting up a legal framework for its use) 10-12 years ago. In fact, he was the author of the jackass “If He’s Hiding a Bomb, Stir-Fry His Ass!” procedural mechanism. Within five years of him touting this ugly idea on the lecture/talk show circuit, we were tying people to water boards. And remember Alberto Gonzalez and John Yoo in the Justice Department? They figured the war on terror rendered the Geneva Convention rules “quaint,” and – boom! – our prisoners of war are treated like cockroaches at a salad bar.
So the big men on campus are now sizing up the Constitution and finding it wanting. A Harvard grandee with far too much time on his hands, Harvey Mansfield, has proposed chucking our hickville democracy in favor of Rule-By-Imperator. In an article in the Wall Street Journal last spring, he pointed out the advantages of putting a “strong man” at the nation’s helm. We’re not that far away, now that government-citizen dynamic is that of insignificant speck swirling in the rending gravitational pull of a bureaucratic black hole.
There may come a day when the Bill of Right may seem as far away, exotic – and captivating – as the Garden of Eden.
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I once heard Levinson speak and immediately struck by the feeling that he comes from a tradition that would be totally alien to that of our founding fathers.
Those fore bearers that Levinson so proudly boasts of believe that there were no real immutable laws or eternal truths. Instead there were only laws made by man “with divine inspiration.” Under the Pharisees the Ten Commandments lost all real significance because they could be ignored entirely depending on circumstances.
This means to someone like Levinson that laws can be interpreted any way the interpreting judge wants depending on his frame of mind and prejudices. A law can be interpreted differently from one day to another based on continually changing set of variables. Murder, for instance, would theoretically be illegal in one situation but legal in another if it was decided that the murder as beneficial to the group as a whole. We see this interpretation on display virtually daily in Israel’s courts where targeted assassinations are approved by both state and rabbinical courts because they are considered beneficial to the country as a whole.
If people of Levinson’s ilk had been around at the time of the Constitution our Bill of Rights would be very different from one the one that emerged. Judges would be able to make decisions without consulting precedence as demanded by our system of common law. There would be no real rights.
Levinson represents the frame of mind of those who continually push for a “living Constitution.” similarly devoid of any real principles.
And here is the funny thing. Despite his claimed devotion to majority rights,what Levinson wants is a country that is riven by conflicting groups. This diviseness makes it possible for a small cohesive group to usurp power.
We have already seen what this sort of system led to in the excesses of the USSR.
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Mr. Levinson ought to realize that we live in a Republic not a Democracy. The only thing democratic about the US is that the law applies to each citizen equally. The word democracy is not mentioned in the Declaration of Independence, Constitution, or even the Pledge of Allegiance. It is the “Republic for which it stands,” not the Democracy for which it stands. A democracy is just the rule of the majority. In other words, a dictatorship agreed upon by the majority. For what if you aren’t in the majority? You are screwed! A republic, on the other hand, is a government that serves the people, representing them, but is separate from them. We have elections in this country where the people can in essence “fire” the people in government that represent them if they are not satisfied. The Electoral College was set up in this spirit. The Founding Fathers were afraid of mob rule and a strong leader. They were afraid of the federel government getting a President Hitler. They wanted a buffer between the popular vote and the presidency.
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Jim - where can I learn more about what you are saying?
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Whoooo Hooooo!!
Return to the Tower of Babel!!!
Hit the reset button guys, humanity has passed the insane threshold again!!
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For our constitutional system to survive, I would suggest that at a minimum we should raise the voting age to at least 25, if not 30 (too much extended adolescence today), and repeal Amendment making U.S Senators elected by the people directly. Another reform would be to disallow any LAWYER from holding elective office, it being an inherent conflict of interest.
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Oh I disagree, mr. Johnson. It will be the
young people who free us from the particular
tyranny we are living under.
Unless, of course, you like the status quo.
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None of this should be a surprise to anyone. It sounds to me like the central thesis of Levinsons book is basically identical to the one put forward by Daniel Lazare in his 1995 book “The Frozen Republic”. The primary difference seems to be that Lazare was honest about the intentions of the Founding Fathers, though as a fierce centralist he disagreed (as I recall the proud leftist Lazare, refused to vote for Nader or any Green because the party was filled with people who were anti-growth and had anti-federal government tendencies).
In fact I would actually recommend Lazares book to Mr. Gutzman. While your book was the best book on The Constitution or Founders I can recall reading that was not an explicitly academic text, Lazares book is worth looking to as an rare example of a hardline leftist willing to come to the grips with the fact that the Founders really did want an ineffecient federal government, really did support a right to bear arms and really were true advocates of home rule.
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and repeal Amendment making U.S Senators elected by the people directly.
Will having senators appointed by state legislatures make things really better? How many of those in state government care about states’ rights?
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I understand the principle behind repealing the direct election of senators, but as a pragmatic move or a move toward advancing conservative goals it is a no-win option
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We have a very pro-Constitution site TheAmericanView.com; please visit, comment.
John Lofton, Editor
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right on!
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