If 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.