TBA Law Blog

Posted by: Jess Hale on Jul 24, 2009

Journal Issue Date: Aug 2009

Journal Name: August 2009 - Vol. 45, No. 8

The unrest among the American citizenry concerning the operation of our national government has become inescapably obvious over the last few years. A frequently divided government finds itself often caught in gridlock that the unpopularity of a president or Congress sometimes aggravates. For many on the left and the right, that unelected federal judges with life-tenure continue to make controversial rulings as they serve into parts of four decades elicits concern.

A recurring unease about the Electoral College, especially in light of the controversial 2000 election, has not yet gone away. To many, it is not clear that our federal government continues to work well or even well enough to continue to be endured in its current form. For citizens and lawyers who engage in debate about the health of our democracy, University of Texas law professor Sanford Levinson's Our Undemocratic Constitution provides a welcome opportunity for a little democratic deliberation "- whether or not one agrees with the changes he calls for to the U.S. Constitution and the Constitutional Convention that he calls for in order to accomplish them.

Levinson believes that substantial elements of the structure of the national government established in the Constitution do not continue to serve the American people well. Further, he views the amendment process under Article V of the Constitution as an "iron cage" that imprisons us in our ancestors' mixture of political bargains and political philosophy. That our presidential system forces us to keep an unpopular president of either party for a full four-year term or that a tiny state like Wyoming has equal representation in the Senate with gigantic California, Levinson finds to be offenses against Democracy. He wants federal judges, or at least Supreme Court justices, to have time-limited terms " he suggests 18 years. He wishes to do away with the Electoral College and instead have a direct popular election of the president. Restrictions on holding certain offices against the young, the immigrant and twice-elected presidents similarly amount to injustices that should be corrected.

As the elections of 1876 and 2000 remind us, the Electoral College may have worked so far, but it could be a political train wreck waiting to happen in a polarized society. Faithless electors, who exercise the independent judgment that the Constitution apparently contemplates, and presidents elected without a majority or even a plurality of the popular vote represent real situations that we could face.

For Levinson, the British parliamentary model might be more appealing. He clearly desires a more unicameral structure that has fewer effective veto points. In his view, after the development of the "factions" of political parties, the founding ancestors' notion of checks and balances has effectively strangled the ability of national government to deal with national problems.

With the cumbersome process of Article V amendments killing beneficial attempts to change the Constitution, Levinson calls for a constitutional convention in order to implement his recommendations. However, in the spirit of "the devil you know is better than the devil you don't," there is a real danger that a constitutional convention would produce a worse governing structure than what we have now. Limiting a convention to just structural concerns seems about as undemocratic as some of the problems he identifies in the Constitution. In an age of media and interest-group driven politics (as even seen in ballot initiatives in some states), we could see media campaigns for a bewildering array of political proposals funded by leftist, rightist or corporate groups hiding behind front organizations with saccharine and innocuous names. The First Amendment could be rewritten " so maybe not so fast with a convention.

While I disagree with many of Levinson's proposals, the exercise of looking at how well the structure of our Constitution serves "we the people" remains both important and laudable. Unless one adheres to an almost quasi-religious tradition that sacralizes the particulars of the 18th-century political settlement that formed our polity, then talking about " deliberating " how well that settlement's structures continue to work accomplishes the important task of desacralizing that tradition. The Constitution is not an idol or a god that cannot be changed without the heavens falling. On that Jefferson was correct, though too easily changing it every generation (as Jefferson believed was desirable) may not provide enough stability for governing a complex society.

Levinson raises significant issues that merit serious debate. To borrow the words of an unsuccessful presidential candidate, "Let the conversation begin" and continue concerning our constitution.  

JESS O. HALE is a senior legislative attorney with the Tennessee General Assembly’s Office of Legal Services. His views do not represent the views of either entity.