Defending the Constitution

University of Texas law professor Sanford Levinson has been making the rounds lately with his new book Our Undemocratic Constitution. Levinson's thesis, which he summarizes in this post at the new Harvard Law & Policy Review, is that the United States Constitution has produced a political system that impedes true democracy at the expense of effective government. All of which should come as no surprise to anyone who's ever really read the document - it's profoundly countermajoritarian, particularly compared with other modern democracies. The real question is whether that is a bad thing. I'm not convinced that it is, at least enough to embrace Levinson's idea of calling a new Constitutional Convention to produce a more efficient democratic document.

Before I launch into Levinson's critique of the Constitution, I should say that I am not slavishly devoted to a piece of paper written over 200 years ago. The founders were a motivated, intelligent, and committed group of guys (white properly owning guys, of course). But they weren't gods and they would probably be the first to admit that the intervening centuries might offer evidence for modification of the founding charter. Change it one thing - complete abandonment is another. I'm open to tweaks and corrections, but generally think the underlying theory of the Constitution - an inefficient government shackled by inter-branch checks and roadblocks to straight majority rule - is correct.

So, here (in my very summary fashion) are the problems Levinson identifies in his article:

• Equal state representation in the Senate: Levinson sees no reason why every state, regardless of size, should have the same 2-person representation in the Senate. His whipping boy for this issue is my girlfriend's home state of Wyoming, which has the same two senators as California with 1/70th of the population (West Virginia doesn't do much better, either). This misses two points, I think. First, the Senate is supposed to be a body composed via the states as independent entities, rather than the voters directly. That is important in any system that styles itself as a federalist one. Second, the diffusion of power in the Senate helps offset the concentration of power in the House and acts as a circuit-breaker on potentially misguided popular sentiment. Those are good things, IMHO.
• The Electoral College sucks: I admit that I tend to agree with this one. Although the same federalism argument from above could be made here, it seems odd to set up a system that allows a President to win a majority of the popular vote without winning the election. However, fixes can be had outside of the Constitution in the way states allocate their electoral votes (by nixing the "winner takes all" system), so a new document isn't necessary.
• Presidential vetoes flaunt the will of the people: For Levinson, the fact that the President, for any reason, can veto an act of Congress and by doing so kill popular legislation is bad thing. He bemoans the loss of "2,501 laws, many of them of great import." But the Constitution already provides a work-around for vetoes when the law at issue really is popular and of great import, as Congress can override. Much more damaging to any pretense at democratic ideals are the presidential signing statements so loved by Dubya and company.
• Impeachment without recall: Levinson feels that the Constitution is flawed because it only provides for the removal of the President (and related officers) via impeachment for "high crimes and misdemeanors," but not for simple negligence or dereliction of duty. Unlike parliamentary systems in which the government can be brought down by a no-confidence vote, we're stuck with administrations for full terms unless we go through the national trauma of impeachment. As much as the idea of getting rid of Dubya and Dick right now, as opposed to 2008, is appealing, the modern world of politics would simply take Leinvson's provision and use it for heinous ends. Could you imagine how often the minority party would try to remove a president for simply sucking at his job? Nothing else would ever get done (which may or may not be a bad thing, I guess).
• Lame ducks: Why should the victors in an election wait months to take office? A damn fine question, really. I've never understood the whole lame duck thing. A small amount of transition time is needed, but something goes one for months and months could probably be avoided. Point to Levinson on this one.
• Life terms for the judiciary: This is a hot topic in the legal academy and one on which I'm undecided. As Levinson points out, a life term for judges (including Supreme Court justices) made more sense given the shorter lifespan at the time of the founders. Turn over would have been more regular and (presumably) the political process more well greased for appointing successors. Perhaps a long single fixed term is a better idea. But I don't see Levinson calling for popular election of those judges, which would be truly democratic.
• The amendment process: This is sort of the natural conclusion of Levinson's position. Yes, the Constitution is difficult to amend. But, given the stupidity displayed in Congress on a regular basis when it comes to constitutional amendments (anti-gay marriage, flag burning, etc.), isn't that a very very good thing?

In the end, Levinson's main beef with the Constitution seems to be that it's working as designed, providing some check on the feared "tyranny of the majority." Perhaps a more "democratic" Constitution would be more efficient and representative of the popular will. We just disagree on whether that's a worth goal of our founding document.