Time for a New Constitution?

Our Undemocratic ConstitutionIf there is a secular religion in the United States (besides sports), it is worship of the Constitution. Our public officials and military take oaths to defend it. News reports give play-by-play when the Supreme Court is reviewing the constitutionality of a law. Most lawyers take it very seriously.

This is not unreasonable. Constitutions are very important documents, because they lay out the ground rules for a country. But they are documents written by human beings at a particular time. That means that they include compromises and also that they are based on current situations. Some of the compromises can be ugly and times change. And even if the drafters were brilliant, sometimes things that looked wise at the time turn out to be disasters.

You can find all those problems in the U.S. Constitution, argues law professor Sanford (Sandy) Levinson in Our Undemocratic Constitution, in which he argues that we need at least a national referendum on our constitution, if not a new constitutional convention. After the debacle of the 2016 election, not to mention a Congress that does not represent a majority of the country and is introducing legislation opposed by most U.S. residents, I’m beginning to think he’s right.

The most obvious flaw is the Electoral College, which Levinson describes as “an undemocratic and perverse part of the American system of government that ill serves the United States.” He writes in the book of two elections in the last fifty years in which the winner of the popular vote was not the winner of the electoral one (1960 and 2000). Of course, now we’ve had a third one, one in which the so-called loser got three million more votes than the winner.

Levinson details how the electoral college has made our elections about a tiny set of issues that are relevant to voters in a few states, instead of about the big challenges facing us as a whole. He also points out that, due to third party candidates, very few presidents receive a majority of the overall votes. Some kind of runoff or ranked choice voting could solve that problem and give us a president the majority of the country would accept.

In another chapter, he writes of the way the Senate is chosen – a situation that gives California, with 39 million people, the same number of senators as Wyoming, with 585, 000. The Senate is skewed in favor of rural states at a time when most people in the U.S. live in urban areas and a time when what happens in cities is vital to the future.

Excessive presidential power also worries Levinson. He also raises such issues as life tenure for Supreme Court justices and the difficulty of amending the constitution.

As I said earlier, Levinson published this book in 2006. It’s the result of years of scholarly thought, not an instant reaction to a bad election. He cites two related experiences as having led to the book – both events in Philadelphia celebrating the Constitution, one in 1987 and one in 2003. At both events, there was an exhibit that allowed people to “sign” the constitution. In 1987 he did so, with some reservations. In 2003, he did not. The flaws had become too apparent to him.

I used to be one of those folks who thought the dangers of a new constitutional convention outweighed the flaws of the current constitution. Now I think a new constitution may be the only way to save the country.

By the way, Levinson’s book is written for a lay audience, not lawyers. He and his wife, Cynthia Levinson, a young adult author, have a new book out, Fault Lines in the Constitution. The new book covers many of the same issues, but is written with both young and older readers in mind. Their website for the book also includes a blog with updated commentary.

Levinson also blogs regularly at Balkinization. I should also note that he teaches at the University of Texas law school, which is my alma mater.

Levinson is an engaging writer who makes complex legal ideas accessible to all. At a time in which we are struggling with innumerable problems in our country, I recommend reading this book (or the new one) and thinking deeply about what he as to say.



Time for a New Constitution? — 14 Comments

  1. The huge problem about beginning to tinker with the Constitution is that there’s a horde of nutty people out there, hoping to get their hands on the works. The briefest Google search will kick them up, the fruit bats who want to dial back voting rights for (gender, ethnic group or sexual orientation here) or push the dial even further away from full representation or decree some (their) religion or language the Only Allowable One. Change can be good, or it can be horribly bad.

    • Yep. Levinson addresses that argument, which has always been why I opposed tinkering with the Constitution. But I’m beginning to think we may have to do something with it to stop those nutty folks anyway. They don’t represent a majority of us, after all.

  2. I’m afraid the Koch Brothers will dominate those who are writing a new constitution.

    • Both of which are tied to the Constitution, alas. White supremacy was written in and only officially disappeared (not actually disappeared) after the Civil War Amendments. Anti-intellectualism is inherent in the way we’ve structured Congress.

  3. I am not American, but looking at American politics from a distance some things look very strange.

    One is the electoral college , and related to that are the gerrymandered districts. Together they mean that not all votes are equal. For a country which prides itself on its democracy, that is a very undemocratic system!
    The old arguments why it was a good idea are all irrelevant today, from what I can see: red and blue states are both large (Texas and California occupy opposite sides) and small, so needing this system to give the small states of one party some balance against the large states of another party is not relevant.
    The divide seems more rural versus urban, which is irrespective of state size.
    People vote for national parties, mostly on national issues, so needing their federal congresspeople/senators to be district-local people is less necessary. With modern media as well as fast travel it’s just as easy to campaign in an entire state, instead of in a specific district.
    So the most democratic solution would probably be a true one person = one vote system, without districts or electoral college.
    (For example: a state’s votes get split among the amount of delegates the state sends according to the voting results, and the amount of delegates a state can send is determined by that state’s voter-population. Divide the number of Senate seats by the number of voters for the senate; to get a seat you need that number of votes. Parties can pool their votes, and appoint senators in the pre-determined order on their lists, but any person who reaches the set number of votes is appointed, even if she was far down the list – her excess votes can go to the person highest on the list who didn’t get quite enough votes on her own. This gives third-party and non-establishment party candidates a chance of gaining a seat, if they get the number of votes needed, even if the established parties are unwilling to put them on their lists).
    At the moment there seems to be zero interest in doing anything along those lines – logical, the people in power want to maintain their power and the ones who aren’t in power are in no position to start such a sweeping change. I rather think that might eventually change, if the next issue can be addressed.

    The other issue is the system of legalized bribery in the form of campaign donations which means politicians are disproportionately inclined to listen to the rich and powerful (both people and corporations).

    I’m getting rather worried that your (crony capitalist) elites are systematically pushing poor people further down, militarizing police and using them and a for-profit justice system against legal protests and the powerless (even turning the police into highway robber barons with civil asset forfeiture laws, if I remember the name of the law correctly), blocking or shutting down democratic possibilities to change policies in ways that would benefit ordinary people (with gerrymandered voting districts and voter roll purges of minorities and negroes), just to accrue more and more wealth to the top few percent (both of people and of businesses).

    If you make the wealth gap ever larger, drive the poorest ever deeper into poverty and deprivation, and block their legal access to upward mobility and better circumstances in a democratic way, that is a recipe for creating a real rebellion when people have had enough and see no other way out. Especially with all the weapons hanging around in the USA, and how easy it is for charismatic leaders and a highly partisan media to steer mob violence toward a weaker target, that is a very scary thought.

    I’ve found that there are people working on this issue, trying to get money out of politics as a first step, and what they say in this article seems a good effort to try and save the USA’s democracy in a legal way from within: https://medium.com/wolf-pac/the-logical-path-to-end-corruption-a64c1d06394b

    • Sorry , I think I got confused about voting for the Senate and voting for Congress when trying to explain a possible way to set up a system where all votes count equally, and all votes are important (not just those in swing states).

      Anyway, the reason I wrote the above screed was because Wolf-Pac wants to create an amendment to the constitution, and from what I understand from their article the way they are trying to do this would not necessarily give those rich Koch brothers and other donors the chance to break open the Constitution any further to try and take away people’s rights. They explain it better than I can, at the link in my post above.

      • The causes of undemocratic representation in the Senate and in the House are different, but both are problems. The Senate problem is related to the two senators per state issue, while the House problem is due to gerrymandering, among other things.

        Getting money out of politics would be a huge plus and others are working on it, most notably Larry Lessig and his Mayday group. But the core problems of the Constitution itself will still be a bottleneck. This country is now predominantly urban, but the structure gives rural areas much more clout. It’s a minority government and it’s crippling us.

        And it’s very useful to have observations from those outside the US on this. We’re a powerful country (even if what’s going on now is starting to look like the decline and fall years). What we do matters far beyond our borders.

    • Even without intentional gerrymandering, the Senate already has that effect, with empty rural states having the same representation as crowded urban states.

      • Yes. Levinson addresses that specifically in the book and has frequently blogged about it. Having lived in the District of Columbia, which has more residents than Wyoming but has no senators, and in Texas and California, the two most populous states in the country, I have seen the senatorial unfairness up close and personal and am increasingly annoyed by it.

  4. I am in favor of a number of amendments to the constitution, including the abolition of the electoral college and doing something to claw back Citizens United, and farther in the past, Buckley v. Vallejo (I think it is) that equated political spending with “speech.”
    At the same time, I shudder at the thought of what a voting populace that elected Donald Trump (and came within a couple of percent of giving him a voting majority). The vast misunderstanding (IMHO) of the First Amendment by many of my friends on the Left scares me as much as the prospect of a Balanced Budget Amendment.

  5. Sorry, I got ahead of myself and left off half a sentence:
    …I shudder at the thought of what a voting populace that elected Donald Trump (and came within a couple of percent of giving him a voting majority) would do with the chance to rewrite the constitution wholesale.

    • A majority of people in this country opposed Trump, but, of course, if we set out to amend the Constitution with this same gerrymandered and out of kilter system, we will get disaster, no question. We’ll have to do a lot of things to make this happen well.

      And even if we got a fair convention that truly represented us, I’m not sure we’d get what we really need. But Levinson raises good points and I think it’s worth discussing them and thinking about them. We can’t spend forever saying “better not rock the boat or we’ll get something worse.” We already got something worse!