Monday, September 17, 2007

Discussion sites on constitutional change

Sandy Levinson

University of Virginia political science professor Larry Sabato is about to publish a very interesting book, A More Perfect Constitution, that both critiques the Constitution and, more than my book, offers explicit suggestions (23 of them) for improvment, including the call for a new constituitonal convention. His book is the trigger for a major event in Washington on Friday, October 18 (in which I will be participating on a panel on a new convention). He suggests, as do I, that one way to begin the long overdue national conversation is through dedicated web sites, including his own I have also created a blog site on my University of Texas page, and I welcome anyone who wishes to particpate in some of the discussions that I have been trying to initiate.


Wow, Dr. Sabato's list of proposed amendments is pretty eclectic. Some of them would be substantial reforms (changing the balance of the Senate; six-year Presidential term), but a lot of them are smallish things that don't even need a constitutional amendment. Couldn't Congress handle continuity of government, give federal judges COLA's, or change the size of the Supreme Court by statute? Why would we need to put that stuff in the Constitution?

I'm reading David O. Stewart's "The Summer of 1787" about "The Men Who Invented The Constitution" and wonder how many summers it might take currently for a constitutional convention on a comparative basis? Might it be similar to the European Community's experience with its constitution?

Sabato offers in interesting list to discuss...

1. Expand the Senate to 136 members to be more representative: Grant the 10 most populous states 2 additional Senators, the 15 next most populous states 1 additional Senator, and the District of Columbia 1 Senator.

The larger you make a legislature, the less nimble and more opaque it becomes.

The purpose of the Senate is to provide smaller rural states more of a voice. If you are going to make the Senate proportional like the House, we might was well go to a unicameral system.

DC should be added to Maryland and given representation there.

2. Appoint all former Presidents and Vice Presidents to the new office of “National Senator.”

I most definitely do not want an unelected mini House of Lords in the Senate.

3. Mandate non-partisan redistricting for House elections to enhance electoral competition.

I do not want the fence sitters of the world deciding which party will be running the government. Partisan redistricting actually ensures more accurate proportionality between the parties.

4. Lengthen House terms to 3 years (from 2) and set Senate terms to coincide with all Presidential elections, so the entire House and Senate would be elected at the same time as the President.

I like the idea of midterm elections because they serve as a corrective to bad governance by the President. For example, the difference between the domestic policies of the Clinton Administration before and after the 1994 congressional elections was like night and day, respectively.

5. Expand the size of the House to approximately 1,000 members (from current 435), so House members can be closer to their constituents, and to level the playing field in House elections.

1000 members! How is anything every going to get done?

6. Establish term limits in the House and Senate to restore the Founders’ principle of frequent rotation in office.

I used to be a term limits supporter, but the results have been disappointing. The Legislatures are still just as corrupt, but less efficient because you lose your institutional memory.

7. Add a Balanced Budget Amendment to encourage fiscal fairness to future generations.


States manage to live within these Constitutional restrictions. So can the feds. Such an amendment would have stopped Mr. Bush's drunken spending spree during his first term and would provide an incentive to curb entitlement growth to preserve the rest of the budget.

8. Create a Continuity of Government procedure to provide for replacement Senators and Congresspeople in the event of extensive deaths or incapacitation.

Sounds good.


9. Establish a new 6-year, 1-time Presidential term with the option for the President to seek 2 additional years in an up/down referendum of the American people.

No. 4 years is just about right and I want to be able to reelect good Presidents in competitive elections. If this proposal appears at first blush to be attractive to you, remember how you could not wait for Mr. Bush (or in my case Mr. Carter) to go.

10. Limit some Presidential war-making powers and expand Congress’s oversight of war-making.

Without regurgitating the past few years of posts on this subject, I would merely point out that military command by committee has never and will never work. That is why Presidential elections matter.

11. Give the President a line-item veto.

Definitely. Also, add a single subject rule for legislation.

12. Allow men and women not born in the U.S. to run for President or Vice President after having been a citizen for 20 years.

This sounds like a fine suggestion for a nation of immigrants.

Supreme Court:

13. Eliminate lifetime tenure for federal judges in favor of non-renewable 15-year terms for all federal judges.

This has worked well at the state level.

14. Grant Congress the power to set a mandatory retirement age for all federal judges.

No. We have some fine elderly judges. Term limits or incapacity rules should suffice here.

15. Expand the size of the Supreme Court from 9 to 12 to be more representative.

Good heavens, Sabato is dead set on increasing the size of each branch of government. Contrary to the viewpoint of many, the Supreme Court is not a legislature. It is not supposed to represent the policy preferences of the wide variety of political constituencies in this country. It is simply supposed to apply the law to the facts and make a semi objective decision.

16. Give federal judges guaranteed cost of living increases so pay is never an issue.

No. We elect Congress to set pay.


17. Write a new constitutional article specifically for the politics of the American system.

Does anyone who has read the book know what this means?

18. Adopt a regional, staggered lottery system, over 4 months, for Presidential party nominations to avoid the destructive front-loading of primaries.

What is destructive about what is becoming a national primary? Let's see what happens over the next couple general election cycles.

19. Mend the Electoral College by granting more populated states additional electors, to preserve the benefits of the College while minimizing the chances a President will win without a majority of the popular vote.

Let's scrap the Electoral College system. It is generally superfluous and extremely divisive when the popular vote winner does not become President.

20. Reform campaign financing by preventing wealthy candidates from financing their campaigns, and by mandating partial public financing for House and Senate campaigns.

Not just no, but hell no!

Campaign speech regulation and limits has been an unmitigated disaster every time it has been tried. There is no reason to embed this mess into the Constitution.

21. Adopt an automatic registration system for all qualified American citizens to guarantee their right to vote is not abridged by bureaucratic requirements.

No. The least you can do is take a few minutes of your time to prove who you are before being allowed to vote.

Universal National Service:

22. Create a Constitutional requirement that all able-bodied young Americans devote at least 2 years of their lives in service to the country.

No. We outlawed slavery a century and a half ago.

The only time we should consider a draft is for an existential military emergency and we elect Congress to make that decision.

With regard to Shaq's question: Most constitutions are written under more-or-less crisis conditions, and time is at least somewhat of the essence. Part of the "miricale in Philelphia" was that everything was done in only four months. Of course, it helped that the drafting process was completely opaque, that Thomas Jefferson and John Adams were far, far away, and that many groups (women, slaves, American Indians) were totally excluded. One luxury we have is that we could actually take a while to reflect on our own Constitution, since there's certainly no widespread sense of "crisis" and even my jeremiads are often about possibilities rather than current actualities. So my proposal is that a convention meet for two years (with salaries for each of the delegates, to be chosen by lottery, at the rate we pay senators or members of the Supreme Court), in order to give them a reasonable amount of time to hold extensive hearings, travel to foreign countries to observe other ways of doing things, etc.

Poland took a full nine years after 1989 to write a new constitution, incidentally.


Your suggestion for how to hold a convention appears eminently reasonable. However, do you believe that our divided polity can generate a suepr majority to actually approve any of the changes suggested by you or Professor Sabato?

Short of an actual crisis on the level created by the failure of the Articles of Confederation, I just do not see the motivation for fundamental change.


When you suggest a non-crisis two years, I think of the planning required and doubt that your idea could be accomplished in that time period. Why, I can envision the lottery selected delegates looking at their selections as annuities or profit centers. At least the Framers were anxious to get back to their day jobs. You have pointed out the need for planning, such as with Bush's decision to invade Iraq. As for Poland's 9 years, would the American public accept that long a period of time? And would the convention be open, unlike the case in 1787, with the Blogosphere tuned in? We need more than a back of the envelope plan. And how can partisanship be avoided? Presumably the lottery selected delegates will have differing views of the past 200+ years of Supreme Court decisions. And would the delegates dare to address the significance of originalism going forward?

I'm pretty sure we could generate the required supermajority for some of those changes; The real bottleneck for constitutional amendments has been Congress, not the states. Others? Probably not, since you'd be asking states to significantly reduce their own share of Senate representation, for instance.

I don't why the delegates to a convention would have to be concerned with Supreme Court decisions at all. Most of the stuff I'm interested in these days involves "hard-wired" provisions of the Constitution that are never litigated, so the Court has never had the opportunity to offer any of its "wisdom." And even with regard to areas in which it has opined, it at least purports to be interpreting the meaning of what is currently in the Constitution.

I agree that there would have to be significant planning for a convention. If we started now, we might have a convention in, say, 2010. But to say that a convention is unthinkable because of administrative problems dooms us to the perpetuation of the status quo (until disaster strikes) not because Congress is venal, but, rather, because it has far too much on its plate to be able to afford to think seriously and at length about the basic issues that both Sabato and I are concerned with.

The Supreme court IS going to get involved in any effort to mount a constitutional convention, whether we like it or not. The con-con is a method for circumventing Congress's role in the amendment process, and yet the Constitution, foolishly, gives Congress a role to play in the convention process: The states petition Congress to call a convention, and fail to specify how delegates will be chosen.

It is virtually certain, IMO, that Congress, faced with a petition to have a convention, will attempt to sabotage the effort, either by refusing to respond to the call, or by rigging the delegate selection process. And then it's off to the Court to establish that, no, Congress does NOT have the discretion to refuse to call for a convention, and that, NO, the sitting members of Congress are not the appropriate "delegates".

Keep in mind that, under the present circumstances, the courts give Congress virtually any 'amendment' they want, by way of interpretation, and if the courts did balk Congress, Congress could originate an amendment to send to the states.

It therefore follows that a con-con can only originate amendment Congress doesn't want. Do you expect Congress to supinely cooperate in this?

Calling for a constitutional convention is a recipe for a genuine, not the least bit metaphorical, constitutional crisis. The Court can't stay uninvolved in that crisis, it can only chose sides.

And, BTW, I expect the court to chose Congress's side, by way of declaring the whole issue "non-judiciable", it's standard copout when they don't want to enforce a procedural element of the Constitution Congress finds inconvenient.

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