Broken Constitution

Sanford Levinson makes the case that the celebrated US constitution is actually totally whack. I tend to agree. For a lengthier exposition of Levinson's views, see Cass Sunstein's review of his new book which lays out the argument in some detail. Sunstein is pretty dubious, but I find his counterarguments unpersuasive, except on the point that Levinson's calls for a "do-over" just seem utterly unrealistic.

Let me try, however, to locate a more policy-relevant point here. The United States semi-frequently finds itself in the business of trying to assist other countries in making transitions to democracy. Thanks to our country's habit of Founder-worship, there's a tendency to push American-ish political institutions on other nations. Empirical research (see George Tsebelis' Veto Players for a summary of much of it), however, indicates that US-style proliferation of veto points makes democratic consolidation much more difficult. In the American context, an extremely large number of veto points serves, in essence, to impede progressive social reform, which is unfortunate. In young democracies without entrenched norms, however, it tends to simply encourage people to break the frequent deadlocks through extra-legal means -- coups or paralyzing street violence. This has been a particular problem in Latin America where the US influence has been at its highest.

Comments

What's especially frustrating about all (or at least most) of the various anti-democratic measures built into the Constitution that Levinson mentions is that they were put there in large part to reassure the South that slavery could persist.

Posted by dj moonbat | October 17, 2006 12:07 PM

Arguably, Iraq is an instance where the constitution should be more like ours. You have a limited veto power by an executive council and a constitutional court, but otherwise its one house parliamentary sovereignty. As a result you have a slim majority ramming through a federalism plan the rest of the country thinks is illegitimate and dangerous. Arguably the country would have been better off with a senate based on the provinces which de facto would have overreprested the Sunnis. You'd have more chance of a genuine bargain. Instead, the Sunnis main leverage is the violence. The argument that veto points can actualy sustain and consolidate democracy has been made by people like Arend Liphardt.

Posted by rd | October 17, 2006 12:14 PM

The article makes some good points but seems, overall, lacking in in-depth analysis or even a cursory review of the reasons the founders espoused in writing the provisions he bemoans. And why would he? It's much easier to pick apart modern society and blame the things you don't like on a 200-year old document.

The whole issue of comparative power between the states based on all states having two senators is ridiculous. He spends quite a bit of time making the case that California's population is bigger than Alaska's. Check. Then he follows by criticizing those who say that the House is supposed to keep these things in check by saying, "But it doesn't, so there!"

Why no discussion of committee assignments? I would suggest that the reason guys like Ted "series of tubes/bridge to nowhere" Stevens can bring home the bacon better than somebody from California is because they're in the ruling class, they have a safe seat and are thus wise appointments to lucrative committee chairmanships. Don't forget Robert Byrd - less effective now that he's in the minority, but I suggest everyone drive through the beautiful hills of WVa and enjoy the high quality highways. If you're from California or New York, you paid for them.

I completely agree with everything he said about the electoral college, crippling lapse of judgment that it was.

I disagree with his assessment of the speed of the legislative process, but the issue is complex. The founders knew that the natural course of things was for government to usurp more power, so they intentionally designed a process that would make this difficult. We've gotten to the right answers on civil rights, abortion, etc. I think hasty laws are much more dangerous and problematic than laws that just take too long to pass.

What about the concept that the reason we can't take fast, far-reaching action on pressing social issues is that the people responsible for making the decisions don't agree on the best course of action? Would he suggest that we take laws dealing with "pressing social issues" and tack them in a non-germaine fashion onto the back of a port security bill on the last day of session? That way, it gets passed quickly and without debate! Opponents would probably add that it was passed under false pretenses. At least it got through quickly, though! Clearly, speed-legislating should not be a goal of our legislative process.

Kudos to Levinson for having the balls to take on a topic in 500 words that has inspired literally volumes of academic work. I suppose I shouldn't be disappointed that he didn't do it justice.

Posted by Mike | October 17, 2006 12:16 PM

The article makes some good points but seems, overall, lacking in in-depth analysis or even a cursory review of the reasons the founders espoused in writing the provisions he bemoans. And why would he? It's much easier to pick apart modern society and blame the things you don't like on a 200-year old document.

I take it you don't know who Sandy Levinson is.

Posted by dj moonbat | October 17, 2006 12:18 PM

I can't believe you got through this post without quoting Rawls on showing those third world...folks...how American democracy works.

That's Major William Rawls, not John, of course.

Posted by dan | October 17, 2006 12:24 PM

There are two simpler (though who knows how possible) amendments that would go a long way towards re-democratizing our government. One would be throw out the article that says the congress makes it's own rules. Currently, the ruling party controls everything. What is voted, when it's voted, etc. It would make more sense to set out fair proceedures. The second would be an anti-gerrymanding amendment taking control of the redistricting process from the parties.

Some sort of amendment taking the selection of supreme court justices from political actors would be good too.

Posted by cw | October 17, 2006 12:37 PM

I don't know who Sandy Levinson is, and neither does wikipedia, so I'll have to assume that he's some LATimes hack who wrote a short-sighted and poorly researched/reasoned article on the US Constitution.

Posted by Mike | October 17, 2006 12:39 PM

the article is merely descriptive -- it accurately describes how our constitutional system works, the implications of federalism, the electoral college, etc. -- and just assumes what it describes is bad. that is, many people think it's a strength of the system that a dissatisfied public/legislature can't just yank the executive (don't get me wrong, i see the appeal of a parliamentary system). you can't just assume ditching the state system, fixed terms of office, vetos, etc., is better, which is what the article does. instead, you have to analyze whether (e.g.) it makes better sense to switch to a popular vote system so that candidates only have to campaign in CA, NY, TX, and FL (he also ignores that CA used to be republican, things change, etc.).

(there's also an underlying issue of whether we want some sort of exhaustive civil-type constitution, trying to spell out everything in detail, or just a framework of fairly bare requirements.)

Posted by dj superflat | October 17, 2006 12:43 PM

I don't know who Sandy Levinson is, and neither does wikipedia, so I'll have to assume that he's some LATimes hack...

Well, not so much.

The author of over 250 articles and book reviews in professional and popular journals, Levinson is also the author of four books: Constitutional Faith (1988, winner of the Scribes Award); Written in Stone: Public Monuments in Changing Societies (1998); Wrestling With Diversity (2003); and, most recently, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It)(2006). His edited or co-edited books include a leading constitutional law casebook, Processes of Constitutional Decisionmaking (5th ed. 2006, with Paul Brest, Jack Balkin, Akhil Amar, and Reva Siegel); Reading Law and Literature: A Hermeneutic Reader (1988, with Steven Mallioux); Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995); Constitutional Stupidities, Constitutional Tragedies (1998, with William Eskridge); Legal Canons (2000, with Jack Balkin); The Louisiana Purchase and American Expansion (2005, with Batholomew Sparrow); and Torture: A Collection (2004, revised paperback edition, 2006), which includes reflections on the morality, law, and politics of torture from a variety of disciplinary perspectives. He has taught a course on "Torture, Law, and Lawyers" at the Harvard Law School. He is also a regular participant on the popular blog, Balkinization.

He has visited at the Harvard, Yale, New York University, and Boston University law schools, as well as the law faculties at the University of Paris II, Central European University in Budapest, and the Hebrew University in Jerusalem. He is also affiliated with the Shalom Hartman Institute of Jewish Philosophy in Jerusalem. A member of the American Law Institute, Levinson was elected to the American Academy of Arts and Sciences in 2001. He is married to Cynthia Y. Levinson, a writer of children's literature, and has two children, Meira, a writer and public school teacher, and Rachel, a lawyer with the American Association of University Professors in Washington, D.C.

Posted by dj moonbat | October 17, 2006 12:44 PM

Yeah but I'm sure Mike's resume is better. Right, Mike?

Posted by JP | October 17, 2006 12:52 PM

It's worth noting that the Democracy promotion in the former Soviet bloc tilted towards parliamentary style democracies, rather than presidential systems.

Posted by Nicholas Beaudrot | October 17, 2006 1:03 PM

I should say that I bring up Levinson's sterling credentials not to say that I agree with everything he says—only that attempts to label him a hack in an attempt to avoid any of the merits of the argument are deeply in error.

Posted by dj moonbat | October 17, 2006 1:04 PM

And he was my ConLaw professor! He's nothing if not provocative, but was always one of my favorites. We may not use the Amendment process to remove vestigial anachronisms as much as we need to, but c'est la vie.

Posted by norbizness | October 17, 2006 1:23 PM

"In the American context, an extremely large number of veto points serves, in essence, to impede progressive social reform, which is unfortunate."

I presume you are aware that Republicans are in control right now. Without a large number of veto points, you would be happier with what they could do....right?

Posted by Sebastian Holsclaw | October 17, 2006 2:47 PM

I'm sure, given his background, that Levinson knows that the multiple Constitutional provisions that make it hard to get things done without a wide national consensus were put in there on purpose, and that the other provisions that limit the ability of a momentary excess of feeling to overwhelm all opposition were put in likewise.

I would agree to some extent about our type of constitution's inapplicability to countries with less-developed political cultures, especially the sort prone to mobs and coups.

Levinson seems to have the left's reflective admiration for parliamentary systems, without any appreciation for their flaws. Our system generally does exactly what it's designed to do, and what it's designed to do is not to promote progessive causes. This is where Levinson's true beef seems to lie.

Posted by DaveL | October 17, 2006 2:55 PM

I've often thought one barrier to reform is actually the US Constitution's requirement of mid-term elections -- one of its more democratic features, in other words. Making House members face the voters every other year pretty much guarantees a particularly strong bias in our system against taking bold actions that might piss off voters, like increasing gasoline taxes, or cutting farm subisidies, or restructuring healthcare. A British government can force feed the electorate strong but necessary medicine, because it knows it may have up to five years to demonstrate to the voters the ultimate wisdom of its program. A US administration -- and, most critically, its partisans in the House -- does not.

Posted by P.B. Almeida | October 17, 2006 3:17 PM

I am going to be shot by many, But truth be told most of the "founding fathers" had a disdain for democracy. They set up the constitution with a number of checks on power of the people as well as the government. They feared the 'tyranny of the masses' as much as tyranny of a king/dictator etc. So they put democratic checks against government and then put checks on the people. That is the reason there is no direct elections of the president, the electral colege is suppost to be an independent of poltics and choice the presendent on national needs. The idea was that you don't elect the president, but elect an elector that assortains the canidents qualification for the position. This NEVER happend as they want, but their was not suppose to be any need for poltical parties either many of the majority view. ( I am not saying there where no pro democracrocy founding father, just they where the minority.)

Posted by Hinderlands | October 17, 2006 3:25 PM

The founders had a deep fear of political parties, and many of the structural devices incorporated into the Constitution were aimed at checked the power of political parties. This goal, obviously, failed pretty miserably. These same devices are now used by the political parties to consolidate and leverage their power.

Posted by blah | October 17, 2006 3:33 PM

The more important point here is that even those deeply disaffected with the US constitutional structure wish to maintain the restraints of that structure in seeking to reform it. The more usual way that constitutions are changed is by breaking them, by adopting processes of legitimation outside the prescribed format - for example a majority of Congress organising a national referendum on a new constitution and then just organising elections to the new institutions and getting on with it. That's the way the 4th Republic became the 5th Republic in France in 1958-62 and the way the Irish Free State became Eire in 1937. New constitutions are usually made by a 'slightly constitutional' process, not in full compliance with existing procedures.

Posted by otto | October 17, 2006 3:38 PM

Under our Constitution, although criminals can be removed, mere incompetents are protected. One need not adopt a parliamentary system in order to construct a system by which Congress could declare "no confidence" in the president and force a replacement.

Well he's right, one could use the existing system, which places no real requirements on the grounds for impeaching any president or judge. If Congress really had no confidence in Bush, they could remove him, simply for incompetence or political purposes. (cf. Johnson, Andrew)

Nor are we well served by the extended period between election day and the inauguration more than two months later, during which repudiated lame-duck presidents...retain full authority to make controversial decisions.

We were well served in 2000, when it took most of that time to figure out who the winner was!

"[The presidential veto] allows one man to override the wishes of strong majorities..."

Well, not really. It allows one man to override WEAK majorities. Strong majorities carry the day!

Gerrymandering and the appropriations power of the small states are real problems, but so much of what he's talking about here ("Supreme Court justices often serve for ludicrously long periods", "Democrats, for example, draw their leadership almost exclusively from small states") are either not obviously bad, or extra-constitutional problems that could be fixed in other ways. In any case, there is a need for tweaks, not an overhaul. Because really, really, has the system worked so badly for 200 years? I find that hard to believe.

Posted by right | October 17, 2006 4:16 PM

(cf. Johnson, Andrew)

"cf." means "compare." You mean "see, e.g." or just "see."

Posted by dj moonbat | October 17, 2006 4:31 PM

Because really, really, has the system worked so badly for 200 years? I find that hard to believe.

Sure, we've had to fight one Civil War, but c'mon, what's the big deal?

Posted by dj moonbat | October 17, 2006 4:35 PM

I read an article a while back, I think it was from Slate (yes, they occasionally post stuff worth reading, not all of it by Fred Kaplan and Dalia Lithwick), that reported on countries that are emerging from dictatorships and trying to build democratic institutions. There was an overwhelming rejection of the US system; almost all of these countries were trying for some variation of the European parlimentary system. I found that both interesting and depressing, and it made me wish we could do the same thing.

Posted by Rebecca Allen, PhD, ARNP | October 17, 2006 4:36 PM

The legacy of Spanish colonization - as opposed to English - has far, far more to do with Latin America's problems. The Spanish were still a feudal state when they set up their Empire, and their colonies reflected that - the leading families down there are descendents of plantation owners.

Posted by James Robertson | October 17, 2006 5:52 PM

If you go back into some of the democratization lit from the 90's, especially that regarding the rise of iliberal (sp?) democracies you find some of the American aides pushing towards more agile systems than the US's and locals making the point that a system that constrains powerful centralized actors is a good thing. The basic point being that democracy is subject to hijacking by demagogues. The fact that our system is now over 200 years old and still reasonably functional (though for how much longer) speaks volumes.

Just noting.

Posted by michael nelligan | October 17, 2006 5:58 PM

I was watching a show about ancient Greece and was reminded of the Athenian practice of ostracism. Perhaps that concept could be implemented in some fashion --- it would be good to force some prominent right-wingers to live in a non-American country !

Posted by H-Bob | October 17, 2006 6:28 PM

There's nothing magically better about parliamentary systems. The proponents of such, of whom Levinson is evidently one, always point to Great Britain. Why not spotlight Italy, whose useless and barely functional national government is much more statistically typical of unicameral parliamentary systems worldwide.

As to the disproportionate representation of small states compared to large in the U.S. Senate, I can't help feeling our Canadian neighbors might have themselves a generally more workable system than they've got if it incorporated something similar - even to the inclusion of something analogous to the Electoral College. As it is, Canada is essentially run by Ontario whose entire concentration is on its oldest traditional foreign enemy Quebec, while the rest of the country, to the East, West and North is treated as though it were some resource-rich but otherwise irrelevant Whogivesafuckistan.

Posted by Dick Eagleson | October 17, 2006 8:04 PM

This is the sort of arrogant urban-elitist bullshit that emminates from NY, LA, and Chicago and makes me want to puke. It's no wonder that MY tends to agree. At least MY has the sense to realize that this sort of pie-in-the-sky wimpering needs a point. Boohoo, California isn't a "battleground" state. They certainly attract enough national candidates when they host political fundraisers. Correct me if I'm wrong but I thought broken meant no longer functioning as intended. All of Levinson's examples seem to involve the Constitution functioning exactly as intended over 200 years ago. I wonder if anyone will be reading his tripe 200 years from now? Wackos like this are always used to characterize the left as un-American. They do much more harm than good.

Posted by Just Karl | October 17, 2006 8:06 PM

Come on Karl, he can't even criticize the constitution without making you want to puke? You must have a very very sensitive constitution. And criticizing the constitution is a sign of big-city costal intelligensia at work? And you absoloutly positive the consitution has been working great? No improvements are possible? How about this one: if we didn't have the electoral college, George Bush wouldn't be president.

Posted by cw | October 17, 2006 9:46 PM

How about this one: if we didn't have the electoral college, George Bush wouldn't be president.

That seems aggressively simplistic. Surely if there were no electoral college the campaign strategies, platforms, etc. of the 2000 election would have been extremely different. Given how close the result was, it's impossible to say this one way or another.

Now, if Gore and Bush had thought there was an electoral college and behaved accordingly all along, but at the last minute decided to screw the college and go with the popular vote, than yes George Bush would not be president.

Posted by right | October 17, 2006 10:25 PM

This was an extraordinarily stupid and trite editorial. His main gripes seem to be that our constitutional order prevents implementation of much liberal legislation and that California doesn't have enough power. Well, good. Like it or not we live in a federal system. Different states have different interests. Consequently, states with smaller populations need to be protected from the will of larger states. Wyoming doesn't wield "disproportionate power". It is one state and has two Senators. California is one state and has two senators. This focus on relative populations in the Senate is a non-sequitur and is really stupid. I could go on, but responding to this claptrap gives me tired-head.

Posted by Homer | October 17, 2006 10:32 PM

At one point, Mexico adopted the United States constitution, just changing "United States of America" to "United States of Mexico." It didn't work any better than anything else.

Actually, Mexico's post-1928 system of one 6-year term for a quasi-dictatorial President worked fairly well, by Latin American standards, for a long time. It stopped politicians from killing each other until the 1990s. Perhaps Third World countries should consider something like that as a modest first step.

Posted by Steve Sailer | October 17, 2006 10:34 PM

Impressively, Just Karl manages to rant at moderate length without articulating anything that even pretends to be substantive. At least Homer managed to regurgitate one or two tired talking points.

Posted by live | October 18, 2006 4:39 AM

The extreme unrepresentativeness of the senate is virtually unparalleled in any other mature democracy, isn't it? So is the Electoral College, whereby one can be elected president while not attaining a plurality of the popular vote. Why should we assume that a constitutional system devised more than 200 years ago is the ideal one for the present day? Moreover, it's a constitution that is incredibly difficult to amend. In most other countries, a) the constituion is considerably easier to amend; and b) there's precedent for throwing out the constitution every once in a while and writing a new one. This is not only true in foreign countries, but in state constitutions, which are thrown out and rewritten on a regular basis.

I would suggest, for a start, that direct election of the president and some kind of massive change in the structure of the Senate (to eliminate equal representation of the states) would be the best ways to begin a reform of the American constitutional system. It's not terribly likely to happen, though.

Posted by John | October 18, 2006 11:04 PM

Germany and Japan got parliamentary democracies, not US-style constitutions. Latin American countries that embraced the US model found that it lends itself rather too easily to an accumulation of executive power. I'd say that luck, more than design, had kept the US from that fate. The strong-president model, in particular, has the capacity to imbue civilian leaders with the unwelcome desire to prance around in uniform that ones with ceremonial heads of state avoid. (Although Chirac appears to have resisted the urge to don a flight suit.)

Why not spotlight Italy, whose useless and barely functional national government is much more statistically typical of unicameral parliamentary systems worldwide.

Um, Italy's bicameral. A correct example would be Israel, which has all of the ingredients for crappy parliamentary rule: a unicameral system with proportional representation that has more or less ensured the balance of power is held by extremist parties.

Posted by pseudonymous in nc | October 19, 2006 2:42 AM