Welcome!
I am delighted to welcome you to this new web site, devoted to discussion not only of the specific ideas in my book Our Undemocratic Constitution, but also of any and all thoughts that any of you might have about the wisdom of redesigning the United States Constitution and, just as importantly, suggestions as to how one might go about creating a popular movement that would push such changes.
I look forward to a stimulating conversation.
sandy levinson
I look forward to a stimulating conversation.
sandy levinson
posted by Sandy Levinson at
5:40 PM
19 Comments:
Having followed all your posts on Balkinization for a very long time I look forward to your comments on your new blog.
Do you truely think, I say think, not believe because we have been flooded by peoples beliefs since the media brings us these soul searching effusions direct 24/7, there is a possible transformation of the Constitution?
The courts seem to be conquering the territory historically reserved to amendments. Is there still the political will to envisage such profound transformations?
Hello!
I think it is a useful exercise to provide a continuing critique of the U.S. Constitution; although a wonderful document at its inception, cracks and problems have developed, as your writings have demonstrated. Yet the Constitution seems to retain mythical status in the United States, even as the national government acts as if it has no binding meaning upon that government.
There is one area which interests me in particular. I am interested in the "political questions" doctrine, which seems to be one of a number of principles which render the Executive immune to law.
Most recently, the US Supreme Court has applied that doctrine to the Iraq War. Consequently, that discrete and insular minority known as US servicemen cannot raise the question of the illegality of the war in justifying their refusal to participate.
I hope some of your critique of the US Constitution will include discussion of the political questions doctrine.
Jeff House (Toronto)
Professor,
I haven't had the opportunity to read your book (my apologies), but I noticed that Prof. Sabato is calling for "partial" public financing (proposal #20) in his.
If we're going to contemplate driving a stake through Buckley v. Valeo, shouldn't we go all the way and require full public financing of elections?
Wouldn't that ensure elections are more about ideas and responsiveness to constituents' concerns, rather than shooting slickly produced 30-second spots that are drilled into the public consciousness through heavy rotation?
Thank you for your work.
Has anyone ever suggested a Jeffersonian-like idea of instituting a regular, say every 20 years, reassessment (mini-constitutional convention) of the continued efficacy of the Constitution? The details, of course, need to be worked out inter alia by answering the following questions: (1)Will the entire document be reconsidered every 20 years or just those provisions that have caused some interpretive and institutional difficulty during the preceding 20 year period? (2) Should the "re-ratification" or revision require a supermajoritarian or majoritarian vote? (3) If supermajoritarian, wouldn't 60 percent be a better balance between too easily ratifying the new Constitution and the present percentages making amending the Constitution too difficult? (4) Should the people, Congress, or the states, or all of the above be involved in this process of periodically re-ratifying (revising) the Constitution? One possible benefit of such an entrenched procedure would be that citizens would have to take the Constitution more seriously than they now do. Another would be that constitutional discourse and debate would be a necessary feature of legislative battles, commentary on political developments, punditry and political discourse generally. Of course, there is a down side also. I intend to post an item on this idea soon on http://www.essentiallycontestedamerica.org/ If anyone knows whether such an idea has ever been seriously proposed before I’d welcome receiving information about who, when, and to what effect. Thank you.
Dr. Levinson,
I thoroughly enjoyed your visit today. Thank you for coming, I hope you enjoyed your stay in Las Vegas.
best,
Matt Witemyre
Thank you for creating this blog. More discussion of changing the constitution of our government is certainly much needed.
I am disappointed, however, in that both you and Sabato seem to place al your hopes for change on just making the government more representative, as if this were going to make everything right. I am interested in discussing more substantive changes: specifically I would have executive officers other than the president chosen by and responsible to the House of Representatives.
I have communicated with you before about this idea, and since then I have done more research on it. I feel the proposal needs more discussion, if only in terms of motivating a serious defense of the status quo.
The previous blog should have been from Gary Y Larsen
I think an important part of modern 'democracy' is that it is not entirely democratic. There are things which a majority should not be allowed to impose on a minority. There need to be barriers against the tyranny of the 51%. (I expect that Prof. Levinson addressed this in his book, though I have not read it.)
I think that our Constitution does need rewriting or serious revision, but we shouldn't just throw out undemocratic institutions or refashion them to be more democratic, just because we like 'democracy' in the abstract.
Let's take a big example of a place where I've been thinking about how this *ought* to work -- Congress. Our bicameral Congress exists (as opposed to the unicameral ones many of the Colonies had at the time of adoption) at least partly because it is harder to get legislation through two houses than one, and the Founders wanted to impose some barriers to speedy legislation in most cases. I think that is a worthy goal. I also think that that goal would be undermined by making the House and Senate both represent the same underlying, geographical distribution of political preferences. So if I were to change the Senate, it wouldn't be to, for example, give bigger states more representation there, because that just makes it more like the House.
Now, how do you change the Senate -- trying to simultaneously make it more democratic while representing a different grouping than the geographically-based House? Maybe you try to move away from geography as the grouping factor. You could try to use party affiliation or a similar self-selecting mechanism. You could randomly assign voters to groups. You could use age; you could try grouping based on some measure of economic position (say, taxes paid?). Of course, those choices have their own drawbacks (I won't bother listing the many flaws I see with each of these). But, however you do it, the more you make the Senate represent a 'different' majority than the way the House does, the more barriers you put in front of the two Houses agreeing.
I don't pretend to have all the answers, but I think these are some of the things we need to think about in addressing how our Constitution ought to change.
I agree with Sharon, this emphasis on making the Constitution more "democratic" is misplaced. We're a democratic republic, and we owe more of our success to the latter than the former; Democracy without severe limits on what the majority may do is just a way of choosing your oppressor. And while I suppose the majority oppressing the minority is superior to the opposite from a utilitarian standpoint, it's better not to have oppression in the first place.
I'd like to see more attention placed on the way structural considerations can channel eternal human motivations to good purposes, or at least less harmful ones... Like the way the pre-17th amendment Senate functioned to limit growth of federal power relative to the states.
Sharon and Brett,
If I might quote Dr. Levinson (please excuse the long quote):
"A second, linked, response is to point out that the United States is not in fact committed to "democracy" but, instead, is a "republic." There is a reason, after all, why the term "democracy" appears nowhere in the Constitution, whereas Article IV does guarantee to each State a "Republican Form of Government."20 In some sense, this point is absolutely correct. The founders were in fact committed to some version of a "Republican Form of Government," and not to what we would today recognize as a modern democracy.
But the point is that we have, almost entirely for the better, wandered far from our 18th century "republican" roots. The 18th century version of the republican form of government was, among other things, racialist and patriarchal, not to mention religiously skewed.21 For the most part, only propertied, Protestant white men were invited into the republican experiment. Everyone else was pretty much an onlooker. Nor, of course, was there any nonsense about "one person, one vote."
I do not accuse contemporary partisans of "republican" (as distinguished from "democratic") government of supporting such outmoded and rejected institutions as slavery or the subordination of women. Still, I wonder whether the impulse to emphasize that the Founders never intended to create a "democracy" is not mired in the same kind of worship of tradition that led earlier generations to oppose prior important changes in our polity. These have included such fundamental changes as the abolition of slavery, the lifting of racial and gender bars to the suffrage, and the turning over of election of United States senators to the populace. In all instances, defenders of the status quo argued that the changes violated our "republican" commitments.
I do not rule out the possibility that my particular suggestions for eliminating the policy veto, the electoral college, the equal-vote allocation of power in the Senate, etc., are not only debatable, but even out-and-out bad. That said, I am confident that simplistic reminders that "we are a republic, and not a democracy," do not contribute to the public debate unless they are accompanied by a robust theory of precisely how the anti-democratic, anti-majoritarian features of our Constitution serve important public values beyond simply making it difficult for the majority to rule."
If you don't read his book, at least check out his paper "The Democratic Deficit in America"found below.
http://www.hlpronline.com/2006/11/levinson_01.html
Professor Levinson -
As lawyers, our perspectives on the Constitution are often a bit skewed. We can easily lose track of the ways in which our founding document is viewed by the nation's broad public. Consequently, I think it's important that discussion about whether, and how, to change the Constitution take account of both popular perceptions and public ideals.
Let me start with the electoral college. We all know that the framers sought to protect the influence of small states when they set up this anti-populist system. However, during the course of nationhood the power and reach of the federal government has grown and not always, or even often, in ways anticipated by those who drafted and voted for the Constitution in 1787.
I think the public neither understands nor appreciates the purpose of the electoral college. And who can blame them? This is no longer a motley collection of states with disparate economies, cultures and histories. Instead, as our nation has become homogenized in all of those areas, the differences between the states and the need to prevent larger states from overreaching in the presidential electoral arena has lessened.
I personally believe the time is right to shift the U.S. toward a popular vote-only system in presidential elections. I think many people would agree. And I think one argument that should be made, though isn't heard enough, is that the political equality of the states in the federal system is adequately protected by the design of the Senate.
I also think we should be having a conversation about two other aspects of presidential power: first, whether the Vice President should be independently elected, and second, whether the constitution should include explicit limits on the degree to which Congress can delegate executive authority to independent agencies.
Understand, I am no "unitary presidency" scholar. I do, however, think that part of the reason that elections don't bring the changes that people seem to want, at least not very often, is that much of the government's administrative apparatus is effectively immune from presidential influence. There may well be agencies that should be constitutionally deemed independent, such as the Federal Reserve System, but I think it's no so clear in other cases (such as the FCC, FTC, CPSC, etc.)
Our recent experience with Mr. Cheney, as well as the changes in the way Presidents have put their Vice Presidents to work over the decades, indicates that we should, at a minimum, have a conversation about what, exactly, the veep should do. Surely we don't think the Cheney model is the right one; but neither should we be quick to embrace the model that relegated Vice Presidents like Truman, Barkley, and Johnson to near irrelevance. I don't think it's wise to leave the matter to presidential discretion. That obviously can lead to mischief, as Dick's adventures in D.C. show.
Another area where a convention could profitably spend time is on the whole privacy issue. I believe the Constitution should be amended to make it clear that a right to privacy does exist. The problem, of course, is defining its scope. I think it's best to be simple and brief, as in "Neither Congress nor any State shall pass any law that constitutes an invasion of privacy." But obviously this has some downsides.
Second, I wouldn't want to see the concept of the 9th Amendment, i.e., that the designation of particular rights is not meant to imply that no others exist, denigrated.
Third, there's several different ways in which "privacy" can be understood. Does that term reach only the home? Or does it also extend to a business? A motor vehicle or airplane or boat? One's briefcase or purse? And what behaviors are wrapped up in the term? Sexuality, at least in most forms, sure, but what of child pornography, molestations, beastiality, prostitution, etc.? A convention would have to be sure that a privacy clause does not prevent the criminalization of these kinds of acts. And how would it be squared with the First Amendment law on obscenity?
The whole privacy issue also touches on national security matters, so the conventioneers would inevitably have to get into the scope of the commander-in-chief power.
Yet another issue to be addressed would be the commerce power. I think the nation would benefit from a more coherent approach to this area of constitutional law. I also think the convention would do well to put teeth into the 5th Amendment's privileges and immunities clause. It has to mean something important!
Finally, I'd like to see the Constitution include a referendum and initiative process. America is ready for direct democracy. It works in many states and there's no principled reason to prevent citizens from legislating for themselves in appropriate circumstances. Particularly with the rise of the Internet, it is not difficult to envision a system that would form an effective check against Congress' historic tendency to delay, dodge, or grant favors to the influential.
One more thing: the convention should do what can be done to put an end to the lock on power enjoyed by the two main political parties. I don't believe the Constitution sanctions exclusion of minor party candidates from debates, or allows states to impose unreasonable barriers to the ballot, but unfortunately the judges disagree (at least for the most part). Our framers didn't want a two-party system. They distrusted it, and for good reason. We need to be sure our charter honors that view, and not only for that reason. It's a matter of free speech.
Dr. Levinson,
Please put your long comment on the main site so that more people will see it.
I especially agree with your thoughts on minor parties, and the current two party system. Look at the warnings of Melancton Smith, the Federal Farmer, and the idea that we could have almost 3 million people (approximately the population of the original colonies during ratification) vote for someone like Ralph Nader in 2000, and see absolutely no result (didn't get five percent, no federal funding), or representation. I am glad that you brought up the way that modern presidential campaigns are run for the base and a few random battleground states and their concerns in your lecture last night. 2000 was the first year in which I was eligible to vote, and being a 19 year old in Florida, prescription drug policy did not particularly interest me.
I am grateful to all of you for your comments, and I will post a much longer reply to the valuable questions in several days. In the meantime, I am trying to see if it will be possible for visitors to the site to post free-standing comments instead of simply "responsive comments" to my own postings.
sandy levinson
Concerning the subject of 'original intent', the following article may be of interest:
http://hnn.us/roundup/comments/30559.html
In terms of real estate, "The only function of economic forecasting is to make astrology look respectable" - John Kenneth Galbraith (1908 - 2006)
Those discussing the large drop in home prices that need to happen are failing to mention that the nominal price will not fall that far because Bernake is inflating the market; real prices will fall 30%+, however.
To view an excellent post by a long time San Diego real estate broker, on what real estate forcasting and the current housing bust, one should read the post "Does the National Association of Realtors really need an economist?" which can be found at: http://www.brokerforyou.com/brokerforyou
Blogger Robert Justin Lipkin said...
"Has anyone ever suggested a Jeffersonian-like idea of instituting a regular, say every 20 years, reassessment (mini-constitutional convention) of the continued efficacy of the Constitution?...(2) Should the "re-ratification" or revision require a supermajoritarian or majoritarian vote? (3) If supermajoritarian, wouldn't 60 percent be a better balance between too easily ratifying the new Constitution and the present percentages making amending the Constitution too difficult?"
I suggest that 60% would indeed be a better percentage to aim for in determining passage, but it should not be 60% of states, but 60% of voters, and something needs to be offered to the possibly 40% minority who do not approve an amendment. To that end, I propose that whenever an amendment proposal is to be voted on for ratification, each voter should be given these choices:
a) approve
b) disapprove, but would not prefer secession if it passes
c) disapprove, and would prefer to secede from the nation if ratified
Votes should be tallied by voting precincts. For an amendment to be ratified, it would need at least a simple majority in a majority of precincts AND a 60% supermajority overall.
If it is ratified, then any state in which a majority of voters in a majority of precincts AND a 60% overall supermajority chose secession in case of ratification, then that state should be allowed to secede.
There is no reason that we need to remain a single nation if we are sharply divided on key issues. We can maintain trade relationships and defense partnerships without having to live under the same constitution.
To Sharon/Gary Y Larson:
Your notion of having the various officers of the executive branch chosen by and accountable to the House of Representatives is on the right track. I still think there are too many problems with how we allocate our representation in the House for this to be an adequate response, but it is far better than having them all appointed by the president.
To george:
You are right in that "we shouldn't just throw out undemocratic institutions or refashion them to be more democratic, just because we like 'democracy' in the abstract"; however, we should pursue more democratic institutions because:
1) broader participation in decision-making creates broader buy-in of the outcomes, which in turn makes the implementation of policy more effective.
2) broader participation ensures a broader cross-section of views will be represented in the processes, reducing the likelihood of marginalizing minority opinions.
3) greater deliberation generally produces better and more generally acceptable outcomes, whereas less deliberation (or no deliberation, as is currently required of our elected monarch) leaves the possibility of decision-making based on a single opinion, an emotional response, or whim.
4) we cannot expect any privileged subgroup to express and safeguard the concerns of all members of society. If we want "liberty and justice for all" then we must involve "all" in the decision-making processes. Voting is not sufficient involvement to ensure these goals. We need processes that allow all Americans to take part in the deliberation and development of policy and law.
I do not advocate a simplistic plebiscite or referendum with a mere 50%+1 holding unrestrained power. That is foolhardy. Of course, the protections of civil liberties as guaranteed by many of our constitutional amendments heretofore must be preserved. Furthermore, I believe one would be hard pressed to find any of these which even a slim majority of Americans would wish to repeal. However, please note that all such protections, except habeas corpus (which I believe should be strengthened to prevent it from ever being suspended by anyone) required constitutional amendments, and were not part of the original document.
Brett,
First, I think you were agreeing with George rather than Sharon, as Sharon's proposal was firmly aimed at further democratization of our government in the executive branch, which far too few people seem to be discussing.
Second, a democratic republic means a republic based on democracy. Republic simply demotes a non-monarchical state, in the sense that power is not handed down through genealogical succession, but includes all sorts of oppressive states including dictatorships, oligarchies, one-party states, as well as elected representative governments, so let's not put too much stock in the notion of a "republic." The best aspects of our republic are those that can be described as somewhat democratic.
Next, I must take issue with your assertion that "Democracy without severe limits on what the majority may do is just a way of choosing your oppressor."
In actuality, what you are talking about is elected government, not democracy. If you are choosing an oppressor, or a benevolent dictator, or a temporary monarch (as we do now), that is not democracy. It is elected government, and fits under the broad umbrella of a "republic," but democracy is government by the governed, and has much less to do with choosing leaders than it does participation in the actual decision-making processes.
Finally, in your last paragraph, you seem to suggest that "the way the pre-17th amendment Senate functioned to limit growth of federal power relative to the states" was a good thing, but do not explain why you believe that.
Certainly, in some matters, more localized control has been shown to produce much better results, as in education, yet there is also the notion of setting minimum expectation levels on a national scale for things such as civil liberties. While I agree with the notion of decentralization in general, the states themselves are generally quite large geopolitical areas (some more than others), and would not provide much better protection for those issues best left to localized control. If we are going to hold federalism as an aspiration, we should aim for moving power to cities and counties, or even smaller geopolitical areas, so that the people who will be affected by policy can more effectively control it.
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