Balkinization: "Our Undemocratic Constitution"

"Our Undemocratic Constitution"

Sandy Levinson

I take it that anyone who's been reading Balkinization for the past several months knows that I have a new book, "Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It"). It sets out a variety of arguments, some of them already familiar to Balkinization regulars, about the deficiencies of our Constitution and calls for a new constitutional convention to correct them. I am relieved to say that not all of the arguments have been rehearsed on Balkinization, so there IS some new stuff in the book, e.g., an attack on policy-based presidential vetoes and a discussion of the "second-class citizenship clauses of the Constitution." In any event, you can find the cover of the book just to the right, with hyperlinks to Barnes and Noble and Amazon. This turns out to be an interesting test of economic theory, inasmuch as B&N is offering the book at a price at least 20% lower than Amazon. (And for "members" of B&N, it goes down another 10%, to just over $20.00. And if you order another book, say Mark Graber's wonderful book on Dred Scott, you get free shipping!)

Needless to say, I will welcome any disputation (and even agreement!) by Balkinization participants. For better or worse, I have persuaded myself of the validity of my own arguments. That is, I do believe that the Constitution is dangerously dysfunctional for our politics today and that serious discussion of this premise is impeded by the ridiculous degree of veneration that we give the Constitution.

One other point, incidentally: I waste no time in the book attacking the Framers. I am willing to stipulate that they were all honorable men--we can table for this moment the question of slaveholding and collaboration with slaveholders--who did the best they could to shape a new nation in perilous times. Everything might have made perfect sense in 1787-88. But the Constitution badly needed some "sunset provisions." My complaint is that we don't listen to the Framers' own entreaties to be guided by "experience" rather than mindlessly stick to tradition and "custom." Whatever the Framers were, they were not Burkeans. They were armed revolutionaries who overthrew a reasonably good, but defective, polity because it was found inadequate to the American reality. And they then in effect overthrew a second polity--that established by the Articles of Confederation--for similar reasons, even if they didn't have to take up arms to do it. I don't advocate the taking up of arms, but I do suggest we emulate their questioning spirit and willingness to convene for a discussion of what kind of political system is most fit for our contemporary life.

Posted 11:08 AM by Sandy Levinson [link]

Comments:

And Yoo's book comes with a sample waterboard, personally signed with a signing statement.

# posted by

JohnLopresti : 1:45 PM

You of course are free to let pass their slaveownership or collaboration with slaveowners or the 3/5ths counting of black slaves or the 1800 election when Jefferson was called the Negro President, etc. My great-great grandmother named Barbary born in 1787 in Africa and sold into slavery in 1800 (and the memory of her and her sister Chloe sold the same year at the age of 12 in Edenton, North Carolina), requires me to tell you that your ability to let that slide is incredibly dismissive. To discuss this Constitution whose fabric was shaped and warped by the institution of slavery (shall we just discuss the commerce clause) is to indulge in some kind of strange non-reality.
Best,
Ben

# posted by

Benjamin Davis : 8:41 PM

With regard to Ben Davis's post, I have no desire to "let pass" the role of slavery in the Constitution. Indeed, the constitutional law casebook that I co-edit (with Jack Balkin, among others), devotes far, far more pages to slavery than all of our law school competitors put together. My point is simply that I see nothing to be gained by reopening the argument about the virtue (or lack of same) of the Founders and everything to be gained by pointing out that even if one stipulates they were intellectual and moral giants, the Constitution that they drafted in 1787 does not serve us well today.

And, incidentally, one of the chapters of my book is devoted to the "second-class citizenship clasues" of the present (and not merely the historical) Constitution.

# posted by

Sandy Levinson : 9:34 PM

Mr. Sunstein, even if I agreed with the main thrust of your arguments against the present Constitution—and I don’t—the dangers of convening a new Constitutional Convention under contemporary conditions far outweigh the benefits you predict, even if they were all to come to fruition.

The politicians alive today are not wise enough, nor trustworthy enough to rewrite our Constitution. The milieu of the founders, and those who were the driving force behind the Constitution, were far superior to those we would have to depend on today. If there are faults in the Constitution-- and if there are, they are few-- better to live with them then the inevitable mess our feckless politicians leading an Oprah nation would make of that document.

I love my children too much to ever wish such a fate on them as a rewrite by my contemporaries of this noble document.

In his review of your book for tnr.com, Cass Sunstein referred to untoward reverence to the Constitution. Mr. Sunstein writes, "We learn...to revere the Founding Fathers, who are sometimes described as if they had been touched directly by God."

To that I say, show me one contemporary government document written as magnificently as the Declaration of Independence or the Constitution itself, and I will withdraw--or at least temper-- my reverence.

It is the inferior temperament of our times that gives particular pause. And a clear lack of wisdom amongst most of those in office that drives our admiration for the Founders. We are a devolved nation, a people much inferior to the best of the 18th Century we were uncommonly fortunate to have gathered with a long gaze toward the welfare of their posterity.

In the immortal words of Dan Ackroyd, "We are not worthy" to muck with the Constitution.

The people who wrote the Constitution had 13 years earlier put their "lives, fortunes, and sacred honor" on the line to wrest the Colonies away from the Crown and to create a new nation. There are none today-- at least not among the political class frequenting K Street-- who have done any such thing.

The Founders earned the right to create the Constitution. Time has proven their wisdom and prescience to have been so extraordinary that it is not for nothing that, in reviewer Sunstein’s supposition, that many believe the Founders "...had been touched directly by God."

I am inclined to agree that belief is correct.

Those portions of the Constitution that could use modification-- most pressingly how the nation's leadership could be quickly and democratically reconstituted in the event of a terrorist "decapitation" attack-- can be handled through the amendment process.

By the way, if you look at almost all other constitutions, including those of our states, as well as those of nations that have them.

All of them are long, windy documents with none of the elegance and sophistication of our own. They usually go into far more detail on trivial matters that don't belong in a constitution. Our Constitution is a great work of political art on a plane with the best of Shakespeare or the most moving and ageless psalms in the Bible. Anything that would be produced to day, as Mr. Sunstein reminded us, in the age of the blog, would be a nauseous can of special-interest offal.

And as to what that which is according to the review, the central target of your criticism, the Senate and the Electoral College were both quite deliberate. And are just as apt conceptually today as in 1789. We are meant to be a republic not a democracy. The Founders knew very well that a democracy would not last long, because none ever had.

More to the point, we were also meant to be a federation, with the rights of the states and influence of the states, most particularly the smaller less populous ones, to be preserved.

Some may think that States Rights is a discredited concept, but unless we want to be France or Russia where all power is highly centralized, then it is important to preserve the ability of states with small populations to resist and check some of the powers of the big states and the central government, through their 2 senators, and by their out of proportion aggregate importance in the electoral college.

# posted by

ChanRobt : 2:56 AM

re Ben's comments. Yes, of course, the references and accomodations to slavery in the Constitution were egregious. Many of the Framers knew that, even some of the Southern ones.

But, if those accomodations and compromises had not been made, there would have been no Constituion at all and no United States of America.

Eventaully the great evil of slavery was rectified. It took a bloody civil war to accomplish it, with hal a million young men dead out of a miuch smallerr population than we have today.

But, it has been a great good for the world, and ultimately for the black people of North America, that this nation, the United States, came to be.

# posted by

ChanRobt : 3:03 AM