Our Truly Messed-Up Constitution (And Those Dedicated To Keeping It That Way)

Sanford Levinson‘s Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We The People Can Correct It) is a truly depressing book. As I read it last night and this morning–in preparation for a meeting today with this semester’s Wolfe Institute Faculty Discussion Group–I grew increasingly enraged, perplexed, and then, finally, even more convinced that the excessive veneration shown to the US Constitution is a scam, one perpetrated on this nation by a political class determined to ensure the US will never become a true democratic republic. (I am only up to Chapter Three as yet, and dread what awaits me in the remaining ones.)

Much of Levinson’s critique in Chapters Two (Our Undemocratic Legislative Process) and Three (The Legacy of Article II: Too-Powerful Presidents Chosen in an Indefensible Process, Who Cannot Be Displaced Even When They Are Manifestly Incompetent), was familiar to me in its bare outlines: the bicameral, or rather, tricameral legislature, with its multiplicity of ‘veto points’ that may stymie majoritarian legislation, the unrepresentative nature of the Senate, (which without exaggeration may be termed as Levinson does, ‘illegitimate’), the misuse of presidential vetoes deployed on non-constitutional grounds, the all-too-frequent elections to the US House of Representatives, the idiotic Electoral College, the lame-duck Congresses, the delayed inauguration of the President. And so on. And on. But I don’t think I have ever had the Constitutions weaknesses and disastrous discordance with present-day realities laid out quite as infuriatingly well as Levinson does. (My familiarity with the outlines of Levinson’ critique should indicate part of the problem with the Constitution: most people, on being informed of its vagaries, are inclined to think it broke, and indeed scathing critique of the Constitution, given the dates on many of the commentaries and analyses cited by Levinson, is nothing new. But changing the Constitution is well-nigh impossible. We are, indeed, seemingly trapped in the ‘cage’ of its Articles and Clauses.)

A full reckoning of the Constitution’s problems as highlighted by Levinson requires a careful read of his book. Here is a tiny excerpt to get you started. Levinson cites Lynn A. Baker and Samuel H. Dinkin’s article ‘The Senate: An Institution Whose Time Has Gone?’ (Journal of Law and Politics, 1997) to offer a ‘terse summary of the practical consequences of the inequality of voting power in the Senate.’:

First, the Senate ensures  that the Federal Government will systematically redistribute income from the large states to the small states. Second, it provides racial minorities a voice in the federal lawmaking process that is disproportionately small relative to their numbers. Third, it protects diversity among the states by making federal homogenizing legislation more difficult to pass.

In case all that sounds too abstract, here is a little number of particular interest to me:

Over the period 1963-1999, New York taxpayers paid out $252 billion more in taxes than were received back in federal payments or services.

This is a mere sampler; besides the extant difficulties caused for the republic by the Constitution’s provisions, there are many crises waiting to happen in times of national emergency or even tied elections. It’s a clunker and a lemon rolled into one.  As Levinson notes, amending the Constitution is a near-intractable task, the difficulty of which may be gauged by revisiting John Roche’s paraphrasing  of Lord Acton‘s sagacious remark: It is not so much power that corrupts as the prospect of losing power.

9 comments on “Our Truly Messed-Up Constitution (And Those Dedicated To Keeping It That Way)

  1. JR says:

    Your New York observation is quite interesting. Do you find it objectionable that this state contributes far more than it receives? What a novel concept! Gee, where have I ever heard that before? I wonder if anyone at the upper end of the progressive tax code, that does not have deductions to reduce the effective rate in any material fashion, ever feels the same way.

    That’s a very, very interesting observation. I am glad that you made it.

  2. Samir Chopra says:

    JR: You do realize that New York has higher levels of poverty than most of the states who receive those funds, right? That is, this is a net flow of wealth from those *who cannot afford it* to those that don’t need it. Tough luck on trying to make the analogy with progressive taxation.

  3. Samir Chopra says:

    JR: And I’m sure there are so many in the ‘upper end of the progressive tax code’ that don’t have deductions. Yup, I’m sure about that. Because after all those folks can’t afford tax lawyers and accountants to help them understand a tax code that is written largely for their benefit. My heart bleeds for them as yours does.They are the ones most deserving of my sympathy and attention. I’m sure they are very happy to have you on their side. Because after all, society is set up against them, and they have not ‘received’ anything from it. Somehow, they’ve just managed to make a lot of money out of the society they are part of. That’s all they’ve received.

    You know, JR, it’s funny. This post was about the dysfunctionality of the US constitution, which raised many points about how it doesn’t work for any party, Republican or Democrat. Somehow, unerringly, you’ve zoned in on what truly concerns you the most: making sure the rich don’t get taxed more, despite all the advantages that already accrue to them. Good for you.

    Lastly, I don’t think you know what you are talking about: http://www.brookings.edu/blogs/up-front/posts/2012/04/13-tax-greenstone-looney

    • JR says:

      Interestingly enough, I am in that bracket, and take no deductions. So I am in EXACTLY the example that I referred to. I just think that your post is a little bit of situational ethics. How do you know what I would do with the extra money? You can’t possibly know how charitable I am, so it’s really hard for you to say where it goes.

      The brookings post talks about how it is less progressive than other countries, and less progressive than in the past, but that does not mean that it’s not progressive. it is. 5% of the country pays 60% of the taxes. To say that I don’t know what I am talking about, when I stated an absolute, and then to post a reference that discusses degrees, the logic just doesn’t follow. Now, if you showed me evidence that our tax code was not progressive (in the objective fashion that I mentioned,) then your point would be valid. As it stands, it’s doesn’t. These are our current tax rates:
      •10%,
      •15%,
      •25%,
      •28%,
      •33%, and
      •35%.

      Now I don’t have all of the degrees that you have, but I am pretty sure that 35%>than 10%. That means that we have a progressive tax code. Let’s agree on this much, ONE of us doesn’t know what they are talking about.

      I just find it interesting that as far as NY State goes, it’s a travesty, but if it’s someone that you don’t think needs it, then it’s fine. That just smacks of situational ethics to me. It’s ok to do it to them, becuase they don’t need it or deserve it. I mean that’s just not a reasonable argument to me.

      It’s a fact that we have a progessive tax code. To what degree is somewhat subjective, I agree. I am simply pointing out that there are a LOT of states, AND people, that give a lot more than they get, so the NY example should be viewed against a broader construct, that’s all.

      I am perfectly fine giving more than I get. I am happy to contribute to the betterment of society. I just respectfully don’t think that you are being either objective, or consistent in your arguments.

      “The only thing that truly concerns you the most” is frankly slanderous and inaccurate, but unsurprising. That’s just childish, to say something like that. You can’t possibly fathom what interests me the most. To imply that I am selfish is really ignorant. Do you have any idea how much time and money I volunteer? How dare you! How presumptuous! I’ll give you the benefit of the doubt, and say that your emotions got the better of you. (Again.)

      I go out of my way to try to discuss things with people that have different views. Not everyone can handle it.

      I won’t post on your blog anymore, but I will tell you that I find you incapable of being objective. And I have never been fooled.

      I’ll depart this blog, much like another professor that used to interact here, that found you to be a bit too much for him. (Whom you proceeded to attack as well.)

      You can read all of the books in the world, Samir, it just makes you well-read. It doesn’t mean that you ever know the score. That’s a different skill set, and you don’t have it.

      The good news is, I will be out of your hair. I’ve enjoyed presenting counters to you, but now that you are going to descend to ad-hominem attacks, I think I’ll take a pass.

      I never did that to you, you should be better than that.

      • Samir Chopra says:

        JR: Objective? Who said anything about objectivity? This is my blog and these are my opinions.
        Your outrage is misdirected and out of place, especially for someone whose opening contribution to this comment thread was to write a sarcastic rejoinder. And the language of ‘attack’ is very precious, but again, out of place. If you don’t like arguing or rejoinders to your own sarcastic comments, then don’t write like that. You know, heat, kitchen, and all of the rest. As for ad-hominem, heal thyself (you can start by re-reading the various contributions you’ve made to this blog’s comment space). The best way to deal with other human beings’ imperfections is to start with a more realistic and less inflated and lofty view of yourself. Now that you won’t be commenting on this blog any more you will have more time for that. I wish you all the best in that endeavor.

  4. Let’s say for a moment that the “nearly intractable task” of amending the Constitution is possible … it has been done 27 times, after all … what would a better Constitution look like?

  5. Samir Chopra says:

    Peter,

    I think most of those problems mentioned in the second paragraph could be good subjects for amendments. Personally, I’d be most interested in getting rid of the senate: an archaic holdover, one that makes legislation harder to pass and ensures a distorted set of priorities at the national and state levels. Abolishing the electoral college and coming up with a runoff or single-transferable vote-type system would also be a good start.

    Having said the above, it’s worth pointing out that these are merely necessary correctives to our system, not sufficient ones.

    • James Eaton says:

      I disagree that “makes legislation harder to pass” is a bad thing — actually, I believe that was the point. You can’t do away with the Senate without thinking about how to ‘tame’ the House of Representatives. For a nation as large as this one (separately, I’d argue that’s its too large and unmanageable) I wouldn’t think allowing legislation to be fast and nimble is exactly what you want. Not to mention, given gerrymandering, most of the nutjobs sitting in the House chamber won their seats with a few thousand party primary votes. Hardly representative. Now, does the Senate function poorly? Sure does. However, much of this is due to self-created Senate rules. Rather than throwing the proverbial baby (bicameral legislature) out with the bathwater… I wonder if there’s a way to introduce/impose checks-and-balances style oversight on the Senate’s dysfunctional procedures?

      Let’s make the Congress unicameral… only proportionally elected representative (i.e., the House of Representatives, but maybe a new name to make it fresh). Have you seen some of the crazy legislation that has been passed by these folks? (But was stopped by the Senate… or vice versa.) Do you think the bills being written would magically become more moderate if they didn’t have a Senate to “please”? I wonder.

      Are the problems actually structural? Or cultural? Are the deep divisions, lack of compromise, etc. actually a function of the 3-part bill-to-law process?

      Based on observations by our old Senate pal, Al Gore, and many others (e.g., Olympia Snow)… much of the rancor and lack of ability to play in the sandbox like good boys and girls is due to the continual campaign and fundraising activities. Most members o’ Congress are only in Washington for the days they *absolutely* have to. Otherwise, they are purportedly “working for their districts” — i.e., fundraising and having off-campus, closed-doors meetings with special interest lobbyists and so on. Appearing in public just enough to sling muddy talking points and attack soundbites. There used to be a culture of civil disagreement… that included socializing and being human beings to each other, regardless of ideology. Not much of that floating around lately.

      What about fixing that little problem of gerrymandering? Forever strengthening the number of “safe” districts is hardly the way to engender political diversity. There are several scientifically grounded methods of redistricting that fulfill the Voting Rights Act requirements. How do we get such a thing enacted by the folks such schemes challenge the most? This isn’t structural This requires an outcry by the People, for the People and all that jazz.

      Is the Electoral College outdated and outmoded? Absolutely. My understanding is that this was meant as a surrogate system, a means of proxy communication. This is obviously not necessary anymore. Should it be purely a national popular vote? Maybe not. (Vermont, Maine and Wyoming would be basically disenfranchised, trampled upon… kinda why there was a 2 Senator per state, regardless of population system established — Do you think Vermont has influence in Washington because of the 1/435th vote of Peter Welch… or the 1/50 vote of Bernie Sanders?) The 12th Amendment tweaked the Electoral College, why not again right?

      There a huge risk of unintended consequences of fiddling with the fundamental structures like the number of branches of government, how many chambers the legislative branch has, the basic role of check-and-balances among the three “equal, but distinct” branches of gov’t, etc.

      (Sorry, Samir, that was a short comment that grew uncontrollably)

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