The Hard-Wired Constitution and Comparative Constitutional Design

Guest Blogger

This post was prepared for a roundtable on Comparative Constitutional Design, 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.

Yasmin Dawood 

Sandy Levinson’s book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It)[1] is a landmark study of contemporary American law and politics. As I shall suggest in this essay, it also raises crucial questions for comparative constitutional design more broadly construed. In Our Undemocratic Constitution, Prof. Levinson focuses on the role and importance of what he calls the “hard-wired” parts of the Constitution. Setting aside some definitional ambiguities as identified by Sandy, the hard-wired Constitution refers to the basic structural elements of the Constitution and can be distinguished from rights provisions which are so often the subject of extensive judicial interpretation. To honour Sandy Levinson and his work, this essay will highlight some of the book’s contributions and, in addition, will explore its broader implications for constitutional design. In particular, I shall suggest that Prof. Levinson’s reflections on the hard-wired Constitution illuminate (at least) four categories of questions and issues that lie at the heart of comparative constitutional design.

The first set of questions concerns the connection between the hard-wired constitution and democracy. To what extent do the hard-wired aspects of a constitution contribute to the functioning of democracy? In Our Undemocratic Constitution, Sandy focuses attention on the certain anti-democratic features of the U.S. Constitution. He argues, for example, that the design of the Senate leads to distortions in representation. The Senate can exercise a veto “on majoritarian legislation passed by the House that is deemed too costly to the interests of small states, which are overrepresented in the Senate.”[2] Drawing on the findings of empirical political science, Sandy shows that the Senate’s representational distortions can get translated into actual policy outcomes that are detrimental to the majority of the population. Similar kinds of questions can be asked with respect to comparative constitutional design. Should certain features of democratic government, such as political parties, fall within the hard-wired constitution? Does it make a difference to have democratic procedures, including elections, constitutionally entrenched or is it preferable to rely instead, or in addition, on conventions of governance? Do apex courts or specialized constitutional courts help or hinder democracy? There is also a long-standing debate comparing the merits and demerits of presidential and parliamentary systems. To what extent does the hard-wired constitution matter for these system-wide considerations? These questions are particularly pressing given the phenomenon of democratic decline.[3] While the hard-wired constitution, at least in democracies, is often touted as providing defences against authoritarianism, we might want to ask if (or under what conditions) this is in fact true. As various examples around the world have shown, constitutional processes and institutions are often subverted by authoritarian rulers,[4] and, indeed, may provide no meaningful safeguards against determined autocrats.[5] How much protection for democracy is ultimately provided by the hard-wired constitution? 

A second set of questions concerns the relationship between the hard-wired constitution and dysfunctional government. Does the hard-wired constitution produce dysfunction in governance? Can it contribute to effective government? In recent years, scholars of comparative constitutional design have been paying increasing attention to the relationship between constitutionalism and effective government.[6] Prof. Levinson’s insights on dysfunctional governance in the U.S. system have broad application. For instance, he observes with reference to the Senate that the existence of a second legislative body makes it considerably more difficult to pass legislation. Despite the supposed benefits of providing a sober second thought, bicameralism contributes to institutional gridlock. Sandy urges us to “be attentive to the extent to which guarding against the risk of bad legislation ends up being counterproductive insofar as it prevents as well the passage of good legislation.”[7] It could be argued, however, that the duplicative constitutional structures, such as multiple veto points, that make majoritarian governance more difficult may prevent the concentration of power by presidents with authoritarian leanings. In this way, the design features of democratic governance and effective governance may interact in complex ways. A related question concerns bad decision-makers: Should the hard-wired constitution protect the polity from bad leaders? If so, which constitutional mechanisms are preferable? 

A third set of questions is derivative of the first two categories: How does the interaction of various hard-wired features of the Constitution with one another affect the degree to which democratic or effective government is achieved? For instance, Prof. Levinson argues that the presidential veto effectively “transforms Congress from an internally majoritarian institution, at least with regard to the votes needed to pass legislation, into a supermajoritarian one.”[8] The basic idea is that constitutional structures cannot be understood in isolation. They operate within a system whereby each constitutional structure influences the functioning of other constitutional structures. Taking a system-level approach also highlights the interaction of constitutional features with non-constitutional features such as political parties. As Sandy notes, the founders were so horrified by factions that they did not factor political parties into their constitutional theorizing. However, the interaction of political parties with the hard-wired Constitution has led to various unanticipated dynamics of divided/unified government.[9] For instance, a political party must control three institutions: the House, the Senate, and the presidency in order to neutralize a presidential veto. While a close analysis of individual institutions is needed for comparative constitutional design, it is also important to consider the system-level effects of the various parts of the hard-wired constitution. 

Finally, a fourth set of questions concerns the relative influence of the hard-wired parts of the constitution as compared to other factors, such as political, sociological, and cultural elements, in producing either undemocratic or dysfunctional governance. Prof. Levinson acknowledges that various factors contribute to the dysfunction of politics, but he emphasizes that the “Constitution itself deserves some of the blame.”[10] With respect to the U.S., scholars have identified other factors, including the breakdown of the norms of mutual toleration and forbearance[11] and the emergence of dynamics such as constitutional hardball,[12] which have led to declines in democratic and/or effective government. 

In my view, the fact that the level of dysfunction in governance fluctuates over time suggests that the hard-wired features of the Constitution are not solely responsible. As I’ve argued elsewhere, it is the interaction of various factors—constitutional, political, institutional, and civic—that ultimately produces either effective or dysfunctional governance.^[13] At some points in time, the relevant factors generate too great a constraint on governmental action, thereby producing dysfunction. In the United States, for example, these factors include constitutional structures such as multiple veto points, political factors such as divided government, institutional factors such as the filibuster, and civic factors such as the rise in hyperpolarization. At other moments, by contrast, these factors are better aligned, thereby producing effective government. While constitutional structures are arguably necessary for effective government, they are not sufficient on their own to ensure it. At a broader level, the degree to which the hard-wired constitution matters in any given jurisdiction at any given time for effective and/or democratic government is, I suggest, highly contingent and contextual. While broad (and even universal) trends can and should be observed, we must also pay attention to the particular context in order to understand the interplay between constitutional design and constitutional politics. 

In sum, Our Undemocratic Constitution offers invaluable lessons for constitutional design. Our scholarship will continue to benefit enormously from Sandy’s wide-ranging insights on the connections between the hard-wired constitution and effective, democratic governance. 

Yasmin Dawood is Professor of Law and the Canada Research Chair in Democracy, Constitutionalism, and Electoral Law at the Faculty of Law, University of Toronto, with a courtesy appointment in the Department of Political Science. You can reach her by email at yasmin.dawood@utoronto.ca.