February 21, 2008

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 “€œa more perfect union,”€ say, “€œpromote the general welfare,”€ or “€œsecure 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 “€œcorrect”€ them (as they “€œcorrected”€ 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 “€œinterpretation,”€ 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).


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