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.