Reframing the Constitution
UT Law professor believes it’s time to review and renew the Constitution as the Founding Fathers envisioned
By Sanford Levinson
It has become almost a convention of contemporary American politics — like politicians who feel called upon to wear the American flag on their lapels — to treat the Constitution as a basically sacred text. Texas Sen. Ted Cruz famously memorized it. Questioning its logic is off the table. But is this really what the Founding Fathers expected or even intended? In a word, no.
The founders knew that their handiwork, however commendable in many ways, was — as is true of any human creation — flawed. They included in Article V procedures for amending the Constitution, including calling a brand-new constitutional convention. We do not dishonor them by looking at our founding document with fresh eyes. Instead, we brand ourselves as unworthy children by refusing to take seriously the requirement, as James Madison put it, “to improve” the Constitution as necessary to perpetuate its central values. The United States needs another Constitutional convention. Here’s why.
A Modern Day Mess
It has become a cliché of contemporary American political analysis that our national political system is dysfunctional. There are many ways to confirm the point, ranging from the sheer failure of Congress to pass much legislation — the current Congress is the least productive in modern history — to the general alienation that much of the American public feels from what should be their government.
As I write in mid-January, polling data indicates more than four out of five Americans disapprove of Congress, and a full 63 percent believe the country is going in the wrong direction. It’s also become clear that elections rarely produce decisive results. This may be the result of divided government, where at least one of the two houses of Congress or the presidency is held by members of different political parties, or of the now-routine filibuster, where a minority of senators can successfully torpedo legislation supported by the president and the majority of the Senate (and, possibly, the House). National elections can feel like rearranging the deck chairs on the Titanic, as our gigantic government seems unable to steer clear of the icebergs that are all too visible. We may not be able to agree on what those icebergs are, but the national consensus is that the ship is off-course.
How did we get here? Dozens of reasons have been proposed, from economic and demographic changes to the rise of partisan TV news and talk radio, not to mention the ever-increasing role of the very wealthy in political campaigns. These, and many more factors, should all be taken into account. But there’s something else hardly anyone is talking about — the role the U.S. Constitution itself plays, increasingly for ill, I believe, in our political system. We often point with pride to the fact that our Constitution is the oldest continuing national constitution in the world. But why, exactly, should we be so proud of the fact that there has been astonishingly little change in the basic structures of our institutions since they were created in the summer of 1787? If the Founding Fathers could see us now, they would almost certainly be surprised at the reverence with which we treat the Constitution because, as it turns out, they intended it to be a living, breathing document.
The Framers’ Frame of Mind
In 1816, Thomas Jefferson wrote in a letter to his friend Samuel Kercheval: “Some men look at Constitutions with sanctimonious reverence, and deem them, like the ark of the covenant, too sacred to be touched … I am certainly not an advocate for frequent and untried changes in laws and constitutions … but I know also that laws and institutions must go hand in hand with the progress of the human mind.”
As already suggested, recognizing the truth in Jefferson’s statement requires no disrespect of the Framers. They did the best they could under difficult circumstances to create an effective government in 1787. Many of them, like Alexander Hamilton, believed the existing system created by the Articles of Confederation was “imbecilic,” and it was a dire necessity to create a significantly strengthened national government. But consider Hamilton’s stirring words literally at the beginning of the 85 essays known as the Federalist Papers.
In the first paragraph of Federalist 1, Hamilton notes that “it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”
Do we privilege and make normative whatever exists even if it is little more than submitting to the consequences of accident and force, or do we instead engage in the Enlightenment virtue of reflection in order to choose for ourselves how we want to be governed? In Federalist 14, James Madison would write that it was “the glory of the people of America … [that] they have not suffered a blind veneration for antiquity, for custom or for names [that is, the views of the famous], to overrule the suggestions of their own good sense, the knowledge of their own situation and the lessons of their own experience.”
The question we must ask ourselves is whether the Constitution is an ongoing project of the American people through time, or whether it is instead a one-time episode of reflection and choice (occurring in 1787-88) that is followed by an almost mindless veneration for the choices made at that time — even if our own experience might demonstrate the consequences aren’t always positive.
There are some truly serious deficiencies with the Constitution that are highly detrimental to our ability to meet the challenges we face as a nation. For better or worse, it is often desirable to pass sweeping legislation in order to confront one or another of these challenges. But we have a political system that functions to make passing legislation extremely difficult.
Consider bicameralism, in which Congress is split into the House and Senate; their members are elected for different terms of office, and each house has the ability to block any and all legislation passed by the other house. The two houses — even in the best of times — may have difficulty agreeing. But things get especially difficult when government is “divided,” for the “opposition party” has an incentive to deprive especially first-term presidents of any accomplishments that might make re-election more likely. Party advantage takes precedence over working together for the public interest.
In addition, the presidential veto in effect makes us a tricameral system. A single official can render irrelevant legislative proposals that have surmounted the hurdles of bicameralism and gained support from a majority of both houses. The requirement that a veto can be overridden only by a two-thirds vote of each house means, practically speaking, that presidents have won 95 percent of all such struggles with Congress. Indeed, the very threat of a veto can have significant consequences for the shaping of legislation, and one can ask if we are really well served by this de facto three-house system. This, I believe, places too much power in the hands of a president.
We might be happier with our tricameral system if the president truly represented the majority of the country (and if we believed in addition that, for some reason, legislation passed by both houses was less likely to do so). But the electoral college means that presidents frequently have gotten to the Oval Office without majority support. All of us presumably remember the 2000 election, where the plurality winner, Al Gore, lost out, in highly dubious circumstances, to George W. Bush. But in many ways the more serious problem is found in the elections of 1968 and 1992, where both Richard Nixon and Bill Clinton prevailed with approximately 43 percent of the popular vote. And the electoral college assures that Texans are typically not the object of national political campaigns (any more than Californians or New Yorkers are). Both political advertising and the candidates themselves obsess about the so-called “battleground states,” which are the recipients of intense attention. Not so for the predictable states, whether democratic or republican, that are either taken for granted or simply written off.
The Constitution requires life tenure for federal judges, especially justices on the Supreme Court, with the result that we are often effectively governed by de facto, even if not quite literal, dead hands of the past. Some reads might even suggest the power and willingness of the Supreme Court to intervene in national political issues makes us a quadricameral system. Very few political systems have what might be called “full-life” tenure, which allowed Justice Stevens (whom I regarded as an admirable judge) to serve for 34 years until he retired at the age of 90. Far better, for example, would be single non-renewable 18-year terms.
Then there is Article V itself, which establishes an unusually stringent process of formal amendment that makes the United States Constitution among the most difficult to amend in the world. It is telling that state constitutions are far easier to amend.
It is, of course, possible that I am simply wrong. Perhaps what I believe are “bugs” should be perceived as “features.” Or one might simply believe the Constitution is basically irrelevant, that it explains neither our national problems nor achievements. That may be more plausible than the belief that it has had only beneficial, and no adverse, consequences. But isn’t it time to confront fully and honestly the adequacy of our 18th-century Constitution in our 21st-century reality? Isn’t there a benefit to “check-ups” or “tune-ups” even if the word from one’s doctor is that everything is really fine or the mechanic informs you that all you needed was an oil change? What we have failed to do is to ask at all if the Constitution is serving us well. Is it really possible that there are no lessons from our own experience that might enable us to improve our political system?
Calling a Constitutional Convention
A new national convention, covered by C-SPAN, would become an example for a remarkable national seminar about any such lessons and their implications. There would, however, be nothing “academic” about such a seminar inasmuch as delegates could, in fact, propose amendments that could be ratified.
But why do we need a convention? Why not simply rely on Congress to propose any necessary amendments? One response is to express doubt that Congress would be willing to consider any amendments that would significantly affect the powers or prerogatives of Congress itself. That was a principal reason for the placement in Article V of an alternative to relying exclusively on congressional proposal. (If two-thirds of the states petition for a constitutional convention, Congress has no choice but to call one.) But even if one has full faith in Congress, there is the practical problem that Congress is simply too busy to take the time and expend the energy that would be required to engage in a full-scale re-examination of the Constitution.
That is not an activity that would take only a week or two. Instead, my own imagined constitutional convention would last up to two years, with the opportunity for many hearings all over the country and, indeed, all over the world in order to gather the best information and then have the time to absorb it and debate its possible implications. We cannot expect Congress to take a two-year recess. That’s why we need a convention.
I am well aware that many, maybe even most, Americans (including my friends and family) are hostile to the idea of a new convention. Some of them may believe the Constitution is simply unbroken and therefore doesn’t need fixing. But, I am convinced at least as many concede the Constitution is imperfect but nonetheless fear the consequences of a convention. The usual term proffered is “runaway,” and fears are expressed that they would support the repeal of whatever a given person believes is most important in the present Constitution. What this means, in effect, is that most of us, regardless of our political views, are almost deathly afraid of those with different views who become the dreaded Other. We also tend to exaggerate the number and power (and malevolence) of those with different views.
My own view is that fears of a runaway convention are basically a red herring. But what many people don’t fully realize is that the critiques of a new convention, taken at full measure, bleed over into an equally powerful critique of our democratic political system insofar as it does depend on the ability of ordinary Americans to engage in “reflection and choice.” If we believe they can’t be trusted to think seriously about our national future, why are we still holding elections?
— Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair at The University of Texas School of Law.