Can this Constitution be Saved?

Guest Blogger

This post was prepared for a roundtable on Can this Constitution be Saved?, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Bill Galston

Our topic is “Can this constitution be saved?” Two questions arise at the threshold. First, the wording implies that absent changes, our Constitution is doomed. But is it obvious that the constitutional status quo is unsustainable? Perhaps our deep problems will yield eventually to shifts in the balance of political power, or in the greater convergence of opinions across party lines, or in path-breaking legislation, or in changes in the rules by which the House and Senate govern themselves.

Put differently: I’m not convinced that Sandy is right when he states, in italics, that “a substantial responsibility for the defects of our polity lies in the constitution itself.” If I were to enumerate, in order of importance, the principal contributors to our current woes, the Constitution with all its imperfections wouldn’t be close to the top of the list.

Here’s my counter-thesis. For the past three decades, our political parties have been deeply divided and closely divided. Our institutions work tolerably well when the parties are one or the other, but not both. The parties were deeply but not closely divided during much of the 1930s, and FDR had few problems governing except for the ones he brought on himself. Conversely, when there’s substantial ideological overlap between the parties, cross-party coalitions can govern, even if the two parties are close to parity. But in our current situation, each party can check the other, generating gridlock that arouses public discontent and lowers confidence in government.

Party divisions that are both deep and close also change the tone of our politics for the worse. The party in the minority has reasonable hopes of regaining the majority, creating an incentive to intensify conflict and avoid compromise, while the party in the majority has an incentive to avoid sharing credit for policy success with the minority. This ceaseless high-decibel conflict is another key source of public mistrust.

The second threshold question: the Constitution must be saved from what? Violent overthrow? The collapse of public belief in its legitimacy? We may have come close to the former on January 6, 2021. If so, it’s not obvious that changing the Constitution is the best way of preventing a repetition. Reforming the Electoral Count Act and clarifying the command structure of the military in relation to the civilian police are more likely remedies. As for the latter, I see no evidence that the people have withdrawn their support from our basic constitutional framework—certainly not to the extent that Sandy argues they should.

I suspect that the concerns animating our topic are less apocalyptic, though hardly trivial. Thoughtful scholars and public intellectuals as well as elected officials and social movements have come to believe that the Constitution as it now stands violates principles that all liberal democracies should honor. This would be a 21^st century version of the abolitionists’ rejection of the Constitution as it stood in the 1840s and 1850s as (Sandy quotes William Lloyd Garrison) “A Covenant with Death and an Agreement with Hell.”

I’m not sure which contemporary flaws in the Constitution would qualify as equivalently fatal. One often-cited candidate is the document’s departure from the principle of equal weight for the votes of all citizens. To state the obvious, the Senate blatantly violates this principle. It is an example of what Sandy terms “the many structural provisions that place almost insurmountable barriers in the way of any acceptable notion of democracy.”

I find it hard to place the unequal representation the Senate embodies on the same moral plane as the acceptance of slavery. Nor am I convinced that the ills flowing from unequal representation in one chamber of a bicameral legislature represent anything close to an emergency. Sandy cites political scientists who say that it promotes the transfer of resources from large poorer states to smaller but richer states. I wonder about the significance of this finding, assuming arguendo that it’s valid.

Both our system of taxation and our social safety net are strongly progressive. Families in the top 10% of the income distribution account for about half of national income but pay 70% of federal income taxes, so states such as New York and California, with lots of rich people, will contribute disproportionately to the federal coffers, even if they also have lots of poor people. The inflow of money to lower-income people—through Medicaid, social assistance programs such as food stamps, means-tested premiums for Medicare, and Social Security, whose benefit structure tilts the returns to lower-income participants—may not be enough to counterbalance the outflow through income taxes. New York may well be a net contributor to the federal coffers. So what? Besides, legislation can happen only if the House of Representative, whose seats are proportional to population, gives its assent, so the structure of the Senate cannot be an adequate explanation.

Nor does the big state/small state divide affects the partisan balance the way that most people think it does. In 2009, when Democrats had 60 seats in the Senate, Democrats occupied 14 of the 20 seats in 10 smallest states. By 2021, when the Democratic total in the Senate had declined to just 50, Democrats still controlled 12 of the 20 Senate seats in the smallest states. Shifts in North and South Dakota accounted for the Democrats’ modest losses.

The real point, I believe, is that in recent decades Democrats have lost ground—massively—in small towns and rural areas, which probably are overrepresented in the Senate. This raises an old question: should legislative representation take into account the distinctive interests and outlooks of minority groups that may not have adequate voice in a purely proportional system?

This said, Sandy has pointed to many significant flaws in our constitutional order, the most serious of which, I believe, is its excessively demanding amendment process. This increases the pressure on constitutional institutions to accomplish the changes through legislation, interpretation, and executive fiat- that would occur through amendment in a better-balanced system. For example, I regard the Administrative Procedure Act as, in effect, a legislated constitutional amendment that formally authorizes the administrative state. But the form that this and other such changes take leaves them open to constant attacks on their legitimacy.

Short of a constitutional revolution, unfortunately, there’s not much that can be done about this. Unless a convention of the states assembled pursuant to Article V proceeds to ignore the language of Article V, the current structure of the Senate cannot be changed, and even permissible amendments will need the assent of 38 states. As we all know, however, the Philadelphia convention of 1787 ignored the Articles of Confederation, exceeded its authorized writ, and invented the 9-state requirement for the ratification of the constitution it had drafted. I’m not willing to take the risk that such an ultra vires procedure would entail, but others may be. In the meantime, we’ll have to hope that we can muddle through, using the loose joints in our ramshackle constitution to mitigate its structural defects.

William A. Galston holds the Ezra K. Zilkha Chair in the Brookings Institution’s Governance Studies Program, where he serves as a Senior Fellow. You can contact him at wgalston@brookings.edu.