The Constitution: Pretty Disappointing

I recently finished Sanford Levinson's book, Our Undemocratic Constitution, a comprehensive look at the case that we should hold a constitutional convention and try to write a new one based on the lessons about history and institutional design that have been learned over the past 200 or so years. It's a very good book. Indeed, I'd say my least favorite part was simply the title. If you define "democratic" as very narrowly meaning "majority rule" people will rightly say "it's not so bad to be somewhat undemocratic." But if you give "democratic" a more sophisticated, thicker meaning, then arguments about whether or not something is democratic get very airy and confusing. What Levinson is arguing is simply that the constitution is bad in a wide variety of ways. Jonathan Chait gets at one of those ways, the 22nd Amendment's prohibition on running for president over-and-over again. Thus, as he points out, we get Hillary Clinton running for president as a kind of stand-in for her husband, much as Al Gore did in 2002. And worse -- we'll never get to repudiate Bush:

If we had a straight dictatorship, Bush would long ago have been dragged out of the White House either by an angry mob or by disgruntled generals. (Note to oversensitive conservatives: I'm strongly against both dictatorships and assassinating Bush or any other president.) If we could vote for whoever we want, regardless of prior service, Bush would probably be dumped unceremoniously in 2008. Only our kooky current system lets him retire undefeated.

22nd Amendment aside, it's worth pointing out that we wouldn't be in this mess if we had parliamentary government like every other country. Either there would have been an election sometime in the recent past that Bush would have lost, laying the groundwork for a dramatic shift in policies, or else like Margaret Thatcher in 1990 Bush would have been dumped by his own party which was worried that his failed policies were dragging them into the ground and we'd have seen at least a medium-sized course-correction.

Instead, Bush has been repudiated and yet nothing's changed. Worse, political debate in the country now centers around where people stand on essentially meaningless questions. Should congress pass a symbolic resolution against the surge, or pass a destined-to-be-vetoed resolution preventing the surge? The impact is the same in either case, but such disagreements will be the stuff of many an intra-Democratic feud for two years. In a proper country, the fact that the whole party agrees on the underlying question -- to surge or not to surge? -- would be carrying the weight here. A new prime minister would come in and begin disentangling ourselves from Iran rather than digging the hole deeper.

Comments

Thus, as he points out, we get Hillary Clinton running for president as a kind of stand-in for her husband, much as Al Gore did in 2002.

I think you mean 2000.

Posted by Christmas | January 29, 2007 9:22 AM

Either there would have been an election sometime in the recent past that Bush would have lost

There was. Just because the loser of that election gets to stay in office doesn't mean the winners don't have the ability or the obligation to force dramatic policy change.

Posted by Aaron S. Veenstra | January 29, 2007 9:41 AM

I'm solidly behind another Consitutional Convention. I believe our forefathers would shudder to learn that we haven't had one since our Country was founded (didn't they say we should have one about every 20 years?). There are any number of issues that need revisiting--including the term-limit you mentioned. Another I can think of is our draconian drug laws...

Posted by terraformer | January 29, 2007 9:44 AM

Blair's survival for years after the war doesn't seem to support the notion that parliamentary govt automatically cleans up its messes. Moreover, if the Dem majority wants to it can end the war by not passing the needed appropriations or it can attach funding conditions to limit the war, etc. The "opposition" in a parliamentary govt has nothing like this power. More generally, having a vote every two years enables adjustments unavailable to most parliamentary systems, which depend on informal action within the majority party which is by no means guaranteed. You *could* have Thatcher being thrown out, but you can also get John Major grimly hanging on for five years after his government lost almost all public support.

Posted by rd | January 29, 2007 9:45 AM

disentangling ourselves from Iran

At first I thought this was a typo -- but was it?

Posted by Ryan | January 29, 2007 9:49 AM

"There was. Just because the loser of that election gets to stay in office doesn't mean the winners don't have the ability or the obligation to force dramatic policy change."

That's called wishful thinking. The fact that you have to formulate it "the loser of that election gets to stay in office" says it all. Bush may have "lost" the 2006 election, but he still gets to not only stay in office but exercise enormous power in policy-making. Sure Congress could do more, but they have political costs for doing so that they would not have if Bush were gone. So this doesn't come close to overturning Matt's argument.

Posted by Bill | January 29, 2007 9:52 AM

About our 22nd amendment, since the dawn of philosophy, political philosophers have recognized almost unanimously that the greatest threat to a democracy is that a popular politician might successfully assume or be voted dictatorial powers. In my opinion, the 22nd amendment is about a tenth as much protection as we need from that.

More generally about our democracy, we have democratically elected representatives, not democratically chosen policies. The most obvious undemocratic problems caused by that are (1) candidates lie and are under enormous pressure to lie even more, and (2) they belong to political parties that purposely do no represent all the people, (3) they take bribes from billionaires and corporations.

It's an old joke that we could get better representatives by choosing names randomly from a phone book; but I think the joke is true. I'd prefer a structure that lets all adult citizens vote for policies at the most local level, with some measure of participation, citizenship, and so forth determining who is promoted to the next level.

Anyway, that's just academic speculation. I don't want a constitutional convention. I don't have enough confidence in the honesty of our politicians or news media or the education or wisdom of our voters. I think it's almost certain that a new constitution would be much worse than the one we have.

Posted by Gary Sugar | January 29, 2007 9:55 AM

Do you really think it is possible to have a Constitutional Convention in today's media- and money-saturated world? Every single pressure group with an axe to gind would be in Philadelphia (that is, assuming they could agree where to hold it, and that the "naming rights" for the "AT&T Constitutional Convention Sponsored by Fox News" didn't prohibit mentioning the name of the city) with position papers, polls, focus groups, shrimp dinners, and cold hard cash stuffing their desired field-tilting provision in there.

I realize that some of that went on in 1787, but with television and jet travel the intensity would 1,000,000x higher today.

I think we're stuck with the Constitution we have, not the Constitution Matt wants.

Cranky

Posted by Cranky Observer | January 29, 2007 9:57 AM

I'd begin the discussion of flaws with the electoral college and go from there. No electoral college, no Bush.

Posted by P O'Neill | January 29, 2007 9:58 AM

Don't blame the Constitution for this problem

Lord knows the Constitution is deeply flawed. The 2d Amendement (no, not because it stops gun control, but because it licenses militias) and Art IV, Sec 4, for example, need to be sent to Yucca Mountain along with the other toxic waste that won't be safe around humans for thousands of years. Thank goodness both provisions are ignored anyway and the unwritten constitution doesn't really give us a Right of Revolution open to every village, hamlet and corporate interest group in the land.

It's this unwritten constitution that has saddled us with the modern metastatic Presidency, not the written version. Congress is king in the written version. Congress could, and would if it had any sense of corporate identity and jealousy of its own prerogatives, end the war in Iraq yesterday. It wouldn't even have to impeach the President, because he is, Constitutionally, such an insignificant creature, easily bypassed. But, yes, this President is such a hopelessly incompetent servant in every respect, that he does need to be canned yesterday.

Posted by Glen Tomkins | January 29, 2007 10:07 AM

WRT a Constitutional convention, I'm with Cranky. We could SO easily wind up with a Constitution far worse than the one we've got.

WRT war and peace, the problem is that the Founders surely assumed that Congress' power of the purse could and would be used to get us out of a war such as this. But today that seems to be politically untenable.

Once you take away that, the problem becomes that Congress can give the Executive warmaking powers with only a majority vote in both houses, but it would take a 2/3 vote in both to remove those powers from the Executive.

Given at least the moral need for popular support for a war, this is clearly backwards. If the President can't get some sort of supermajority in Congress to vote for a war (I'd settle for 3/5), then dammit, it doesn't have enough public support to go ahead. And if the level of support drops to a point where a majority of both houses of Congress are willing to vote to end a war, then it's time to end it.

The only workaround I can think of is for Congress to pass legislation requiring that the military write up an exit plan within 90 days, complete with approximate costs of the various and sundry steps involved, to get us out of Iraq by the end of next year - then fund the exit plan.

Posted by RT | January 29, 2007 10:10 AM

I have to say that my expectations for the book weren't all that high until I realized Chait suggested that Presidential Term limits are a bad idea, not Levinson.

Term limits are a very good thing.

You should have picked another topic to with which to symbolically repair your relationship with Chait.

Posted by a | January 29, 2007 10:10 AM

Of course the constitution stops the majority from doing what it wants. If you just want majority rule, you should not have a constitution. We have a constitution precisely to stop the majority from over-reaching. People have been writing about this for a long time.

Posted by richard | January 29, 2007 10:27 AM

There's a lot to be said for taking a long hard look at the constitution, and parliamentary systems have advantages which are worth considering (disadvantages too). All the same, I suspect that the present mess is not due to structural features of our constitutional system. If the opposition party had been willing to do what it's supposed to, namely offer some opposition when it's desperately necessary; if the press had been more concerned to tell the truth than to curry favor with the Bush administration and the Republican party, then our admittedly creaky democratic system might have prevented some of what's happened. Even now, it might be made to work. A better constitutional system--and I bet there is such a thing--wouldn't do us any good without a widespread attachment to democratic values and the will to make it work.

Posted by J | January 29, 2007 10:28 AM

A better constitutional system--and I bet there is such a thing--wouldn't do us any good without a widespread attachment to democratic values and the will to make it work.

And my gym membership won't do me any good until I actually start going. But you have to start somewhere.

Posted by mattsteinglass | January 29, 2007 10:39 AM

Blair's survival for years after the war doesn't seem to support the notion that parliamentary govt automatically cleans up its messes.

That's a nasty injection (or infection) of American politics into the British system, and it's likely to end soon. Blair is the first lame duck PM in living memory, and everyone can see how harmful it is. In short, it's seen as the exception it is, rather than the rule that bad PMs get defeated or dumped.

Ultimately, the holy holy US Constitution, may its Caslon-fonted letters be worshipped to the heavens, does fuck-all to deal with a) the post-1900 presidency's powers; b) the potential for executive dictatorship.

It's mostly historical sensibility combined with a bit of luck, that a truly awful or malevolent president hasn't taken advantage of this. Where you find other countries adopting the strong-president model, you're also likely to find very fragile polities, which suggests that there's nothing inherent in the framework to disempower a chief executive on a mission. (It's ironic that Chavez receives the ire of many for seeking powers comparable, in some respects, to the US president.)

The obvious constitutional course is for Congress to rescind the AUMF and issue a new one. And if Bush dares ignore it, then be rid of him.

Posted by pseudonymous in nc | January 29, 2007 11:15 AM

I think it's a bit incongruous to argue that we need a constitutional convention to write a new constitution "based on the lessons about history and institutional design that have been learned over the past 200 or so years", and then use as an example of how bad the constitution is an amendment that was ratified in 1951.

Posted by Homer | January 29, 2007 11:34 AM

I second rd's point that Tony Blair totally messes up any anti-22 or pro-parliament theory. Indeed, as Chait cites Bill Bradley, Howard Dean, and John Edwards as the "Anti-Clintons", it's worth noting that none of those guys would have gotten off the ground if Clinton were still running--and this would not be simply because Democrats like Clinton better than all of those guys, but because they wouldn't resent Clinton enough to vote against their own party's incumbent. Term-limits actually gave the voters more chance to express themselves, not less. I wonder if Chait resents 22 not because he wants to vote against Bush, but because he wants the rest of us to hold our nose and vote Clinton again.

It's also worth noting that even a minority in the Senate could stop war by simply filibustering new funding. I think there's a fundamental misunderstanding here, equating "symbolic" with "meaningless". As anyone who's looked at game theory knows, signaling is a huge part of any game. What makes us a civilization is that we solve problems by sending each other signals rather than by shooting bullets at each other. The connection between words and signals issued by politicians and bullets shots by soldiers is, I suspect, intentionally ambiguous. Where there is a gray area in the Constitution as to which set of politicians the soldiers is authorized to obey (the president is their Commander-in-Chief, but they are sworn to uphold the Constitution), prudent people will side against the politician who seems to provocative and escalating, the one forcing us into unexplored regions of Constitutional interpretation. Legitimacy and power are subjective, fuzzy things--and that is probably for the best.

Posted by Consumatopia | January 29, 2007 11:34 AM

we wouldn't be in this mess if we had parliamentary government like every other country. Either there would have been an election sometime in the recent past that Bush would have lost, laying the groundwork for a dramatic shift in policies, or else like Margaret Thatcher in 1990 Bush would have been dumped by his own party which was worried that his failed policies were dragging them into the ground and we'd have seen at least a medium-sized course-correction

Of course the flip side of this is that the Democrats may very well have dumped Clinton after the 1994 midterm (remember the discussion of whether the President was "relevant") - or in the midst of the 1998 Impeachment just to please the crazies and end the whole thing.

Considering the way the media and the right wing wurlitzer are set up to magnify and distort each baboon screech from the right, could any progressive in a parliamentary system last once the right gets all wound up and vocal and they know that if they just keep up the pressure they might actually drive someone from office? The only reason why Clinton lasted was because he had a fixed term - we shouldn't be so cavalier as to throw that away.

Posted by Ethel-to-Tilly | January 29, 2007 11:46 AM

yeah, let's dump an incredibly durable, stable political system for an unknown, just because you may not like the party currently in power, in favor of (e.g.) a parliamentary system, because we know there are absolutely no issues with stability/durability in parliamentary systems. and while we're at it, let's go with some monster EU-type consitution that purports to address everything under the sun. oh, and let's also move from the common law to a civil law system, because we don't want judges to be able to make law. and let's get rid of our federal system too, because we all know that the states are pretty much fictions these days, it's really all about the US as a whole. etc.

point being, if you're going to mess with one part of the system, you're really going to be messing with the whole thing. and this is really a pointless discussion anyway, because it's never going to happen (people being far too smart generally to give up on a pretty good thing in favor of hypothetically superior alternative that's likely not to deliver in practice).

Posted by dj superflat | January 29, 2007 11:47 AM

MY: "22nd Amendment aside, it's worth pointing out that we wouldn't be in this mess if we had parliamentary government like every other country"

So the problem is the unwieldy nature of US government that fails to adapt to changing circumstances. Oh, so you now agree with Mallaby's point you just trashed in the previous post. Matt, with all due respect, try to hold on to the same opinion at least ten minutes next time...

Posted by Otto Bruun | January 29, 2007 12:05 PM

Either there would have been an election sometime in the recent past that Bush would have lost, laying the groundwork for a dramatic shift in policies, or else like Margaret Thatcher in 1990 Bush would have been dumped by his own party which was worried that his failed policies were dragging them into the ground and we'd have seen at least a medium-sized course-correction.

You're assuming this would have occurred by now. I'm not clear it would have, unless you want to pitch the D victory in 2006 as such a change... but then, in such a situation, the prime minister doesn't have to call an election. (5 years, remember?) Bush would've called an election in say, May 2003, and 5 years would be May 2008.

Blair has been called Bush's poodle since 2003 and he's still in office. I think the real issue is:

It's this unwritten constitution that has saddled us with the modern metastatic Presidency, not the written version. Congress is king in the written version.

... as Glen Tompkins says there. I've been thinking about that exact subject since LB's post over on Unfogged, so lemme try a review:

Most of the time, histories tend to emphasize the Roman influences on the writing on the Constitution; however, if you actually compare and contrast, the system pretty closely resembles the English system of the 18th century. That is, you have a monarch (with real power) and his ministers, then you have a Parliament from which power flows to the monarch. (That it is that way and not the other way around was an issue that was settled in the English Civil War.) The PM system only started in the early 18th century when the King stopped attending cabinant meetings, so someone had to report to the King what was going on. In turn the PM hired and fired ministers.

The US system is close to that, except that the King is elected and appoints his own ministers (Secretaries), but Congress is (or was, or was supposed to be) the source of all power, with an elected Senate filling in for the House of Lords. Only after that point in time, did the British PM become the effective sole power in the English system, whereas in the American system, sole power has been migrating slowly towards the President (that is, the elected monarch). In both cases, over time, one man has tend to accumulate power. Blair has passed all kinds of anti-terrorism legislation that wouldn't fly here (torture being the exception). So I don't really see how a Parliamentary system necessarily would result in more democracy, excepting where it would be similar to what it is now, where we have an elected tyrant (using the original Greek sense of the word). I don't see how it would neccesarily result in less war either: the British Empire was built with the happy acquience of an elected Parliament.

We DO have less 'social democracy'. But we are also a larger country with no history of aristocracy. (And I note that the EU is not exactly democracy in a can either; it looks to be less democratic than the system we have here, if you take democracy as meaning the people have influence.)

All that said, I would be perfectly happy to see the Treasury migrated to the Speaker of the House, in effect giving the party controlling the house at least partial control over economic policy (taxing and spending, certainly). I'd also like to see the Veep elected separately and give them control over the domestic agencies, specifically including the functions of the DOJ. Then the Veep could investigate the King President, and vice versa, and they could both investigate the Speaker. Which might help with say, corruption, without introducing extra veto points (since the three offices would be supervising different spheres), and it would also help with the situation of the President turning the influence of the entire government towards getting himself re-elected.

The impact is the same in either case, but such disagreements will be the stuff of many an intra-Democratic feud for two years. In a proper country, the fact that the whole party agrees on the underlying question -- to surge or not to surge? -- would be carrying the weight here.

I don't think that's true. Arguing over the two forms is a way of telling the party you're against the surge, while continuing to allow it to go on. That's not a procedural fault, that's a lack of spine. Yes, if the D's had won the election, maybe there wouldn't be a surge, but that assumes there would've been an election to win, and also assumes the hawks would be outnumbered when push came to shove; I don't think that is true, yet.

If anything, the real procedural problem is that this is a large country and power tends to migrate to capital districts in any country. (Thus, it didn't matter what was happening in the Roman provinces, what mattered is whose side the Praetorians (and the mobs) were on.) In our lovely capital district the debate is over the surge, or how we continue fighting, while in the rest of the country the debate is mostly about when to leave. I assert that such situations become more common the more that power is concentrated in the hands of one man (or woman), and I think switching to a parliamentary system would get us to a dictatorship even quicker than our current situation will.

m, exhale

Posted by max | January 29, 2007 12:14 PM

Like rd or Consumatopia, you could assume that Blair's survival in the teeth of Iraq means that parliamentary government in the UK has broken down. Or you could make the more reasonable assumption that parliamentary government in the UK is working just as it's supposed to, and ask what Blair's continuance in office means. I think it means that, for all the bitching among the commentariat (UK and US and everywhere else) about Iraq, it's NOT enough of a negative to force Blair from power - meaning that Iraq must not be the enormity that said commentariat insists.

Looks like that's true on this side of the Atlantic too. The Senate may be noodling over nonbinding resolutions, but when it comes to votes that mean something, they confirmed Petraeus, General Surge himself, as Iraq commander by a unanimous vote. Did you notice? Unanimous? Where's your man Feingold? Obama? Looks like the Senate will take symbolic votes to assuage the average Yglesias commenter, but politicians must believe the sentiments of the actual average voter are pretty different.

Posted by Richard Riley | January 29, 2007 12:50 PM

I agree with some of the commenters above. But there is also no doubt that the constitution is outdated and trying to figure out what it means in today's world has become rather like bible exegesis.

It is true that the constitution has brought stability over a very long time. It has changed though and not only through amendments: Supreme Court Decisions changed the way it is applied over the years, think slavery, segregation, abortion.

In an ideal world it would be nice to come up with an updated version where the amendments would be incorporated into the main text and issues like right to vote, privacy equality spelled out in more detail and in a manner relevant to modern life.

Personally I think the term limit for Presidents is probably on the whole a good idea (not necessarily for other officials, though a mandatory retirement age for Senators and Supreme Court justices would probably do more good than harm in the long run). Just the wish to see Bush lose an election is not a very strong reason for change.

The institutions probably don't need that much update. Parliamentary systems aren't a panacea either (look at Israel; the UK is not a typical example).

Here is my wishlist for a change:
1. proportional representation in the House (not in the Senate), i.e. voting by party rather than person. Advantages: no more gerrymandering because one districts will decide several seats; more than two parties; better representation of minorities and minority views such as environmentalists. Also I think it would tend to make it more independent of the President and less likely to rubberstamp a la 2000 - 2006.
2. Get rid of the electoral college and elect the president by simple majority vote.

Posted by albrecht | January 29, 2007 12:59 PM

"for all the bitching among the commentariat (UK and US and everywhere else) about Iraq, it's NOT enough of a negative to force Blair from power - meaning that Iraq must not be the enormity that said commentariat insists."

Actually it's more to do with blair having said before the election that he would leave soon after.

Frankly blair's no longer important enough to justify the upheaval involved in getting shot of him. It also suits brown to leave blair twisting in the wind until after the disaster for labour that the local elections this year will be(which is why brown agreed to leave blair in place till after may)

After all Brown is now running the government whilst blair runs around trying to persuade people he's still relevant.

If blair had any self-respect he'd quit but that would probably just speed up the police investigations into his role in the funding scandal.It would also reduce his opportunities to sponge free holidays off people.....

Posted by kb | January 29, 2007 1:12 PM

Re-writing the Constitution is a bad idea of Biblical proportions. Ridiculous. Simple question: Who is going to write it?! If Otto von Bismarck is to be believed I don't want to know how laws and sausages are made. My knees get wobbly imagining what would go into writing a new Constitution.

Seriously, who would we entrust with this sacred task? I can't think of a single living soul. Given the choices available to us I'll stick with Madison and Monroe, thank you very much.

There is nothing wrong with the Constitution. We simply don't follow it. The president and his legal lapdog Alberto Gonzalez openly dismiss it. Congress doesn't enforce it. To wit: the president does not have the authority to declare war. Bush himself calls it the War on Terror. Simply put, the president has broken the law. Now he wants to break it again to the tune of 20,000 soldiers.

The Constitution gives virtually no power to the president. The Founding Fathers considered the position mostly a ceremonial post. Real power belonged to the Congress.

The president has claimed powers given to the Congress and the Congress has simply stood by and watched it happen. That's not the document's fault

Posted by Jeff | January 29, 2007 1:26 PM

But if you give "democratic" a more sophisticated, thicker meaning, then arguments about whether or not something is democratic get very airy and confusing.

Not confusing at all. Whatever I agree with is democratic. Whatever I disagree with is undemocratic. There isn't much more to the arguments than that.

Posted by digamma | January 29, 2007 1:49 PM

Remember the opening sentences of the Federalist Papers?

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

Hamilton and the other founders answered in favor of "reflection and choice". I'd almost say that disagreeing with him, like DJ Superflat and P O'Neill here, is in a strict sense un-American.

Posted by lemuel pitkin | January 29, 2007 1:50 PM

I don't see the need for a new Constitutional Convention, at least not to rewrite the Constitution. I would support a limited one to add a few more amendments, perhaps even one allowing for recall of the president (and possibly other representatives), but I'm fine with the Constitution as is aside from small corrections.

Other essential amendments I'd consider would be for the Freedom of Information (for transparency and accountability), the Right to Privacy, and the mandating of Instant Runoff voting to replace First Past The Post. I think there's one or two others I would support to, though I can't remember what they are at the moment, but one of them probably is in regard to political campaign financing.

Posted by Jimm | January 29, 2007 2:36 PM

Doesn't the lesson Chait draws from Levinson's book suggest that the "Impeach Bush" movement has things exactly backward? We shouldn't try to impeach him - we should support giving him another chance to run for President, so he can convince the nation he has the best plan for fixing the Iraq mess. He'd have to run, right? Would he even win the Repub nomination? Surely not the general, right? (Uh, right?) Either way, it would be an extraordinary repudiation of the man politically and personally, and would almost certainly usher in a wave of Democratic politicians and progressive politics. Good for the country in every imaginable way. So, don't impeach the guy -- give him another chance!

Posted by Jon | January 29, 2007 4:20 PM

ummmmm, i'm not sure why you think i disagree with what you seem to be suggesting is the federalist's point. that is, i'm all in favor of reflection and choice, and think that knee-jerk desires to "fix" the constitution based on current political climate are not the product of sound reflection. (i also don't think that the federalists really thought we might revisit our constitution very often, or have frequent revolutions or somesuch, even though there's support for both points in various parts of the papers, and the issue's obviously highly debatable.)

Posted by dj superflat | January 29, 2007 4:25 PM

The thing that interests me is the timing aspect of the Twenty Second Amendment. FDR was a hugely popular president, yet is body was hardly cold before we were amending the Constitution to make sure that what he did could never happen again.

Posted by Josiah | January 29, 2007 4:33 PM

Focusing on the 22nd amendment and the political failings of our system over the last decade or so miss the point. The reason a new Convention is so imperative is the undemocratic, misapportioned Senate. Currently, less than 5% of the US population elects a quarter of all Senators, and this undemocratic trend will only get worse. Article V virtually prohibits correcting this problem through amendment, and therefore a Constitutional Convention (Levinson envisions one being called by national, popular referendum) is the only solution.

Posted by phensley | January 29, 2007 5:34 PM

I think many of Levinson's arguments are compelling but I share the skepticism of many other posters regarding a new constitutional convention. I will add that, barring a monumental collapse of the U.S. political system or a third world war, a call for a new constitutional convention is going to be received awfully poorly.

I agree with Matt (and Chait) about the stupidity of the 22nd Amendment. I know people argue that it reduces the likelihood of a dictatorship, but this argument falls flat on several grounds. Firstly, with or without the 22nd, a dictatorship would require openly flouting the constitution; the brake effect of this amendment seems rather slim. Secondly, the political history of long-serving elected leaders both in the United States and abroad illustrates that long-serving presidents and prime ministers become LESS popular with time. FDR's winning margin decreased in both his 3rd and 4th elections and in both elections he faced an actual fight. Margaret Thatcher grew progressively more unpopular until she was unceremoniously booted out of office. The same is occurring to Tony Blair.

I ask this of supporters of term limits for Presidents - should FDR have not served a 3rd term? Would the country have been better off with different leadership? Are we to preclude any potential future FDR from having a third term?

In truth, I think the only president of the last 50 years who would have been in a solid position to seek a 3rd term was Bill Clinton. Both Reagan and Eisenhower were too old and suffering health problems. And I doubt that Clinton would have been able to continue for a 4th term. At some point, Al Gore and other leading Democrats would have made clear their impatience for office.

Getting back to the larger subject of constitutional change, what would I propose? I would suggest (1) direct election of the president, (2) a mixed-member system of proportional representation in the House, and (3) a 4-year House term, perhaps co-terminous with the presidency. I'm less certain of the last; one possible variation would be to elect the House each decade to a 2-year term in advance of redistricting and then 2 4-year terms. That would mean that in every other decade, the presidential and House terms would coincide.

Of course, if I were starting from scratch, I'd make the system more parliamentary. Perhaps make Senate representation correspond at least partially to population, elect the president from a House elected by proportional representation for a fixed 4-year term but allow a 60%-no confidence vote after 18 months of a term of office. Allow the House to override the Senate with a 3/5 or 2/3 vote, and permit Senators to serve as cabinet secretaries.

Posted by Andrew | January 29, 2007 6:05 PM

Currently, less than 5% of the US population elects a quarter of all Senators, and this undemocratic trend will only get worse.

I don't consider this to be as big a problem as Dahl and others make it out to be, though I could see some room for improvement in terms of the rules for the House overriding the Senate.

The original idea was that the states were self-coherent political units that joined together to form a limited federal structure that served all state's interests and protection. Now, the trendy thing is to junk this and just accept we are a federal unit first and foremost because it's the most democratic thing to do, but noone is talking about junking the states. So, if we were to do this, would this just mean states become glorified counties, and the littler states get dumped on by the larger states which would be able to commandeer most of the dollars?

I think it's always better to have a system that balances majority rule with protecting the little guy (or gal), and our federalist system seems to accomplish that. I would want to seriously attempt to reform the system as is (which has not been done yet) before scrapping it because little states get sweeter deals than they should get, especially since once you scrap the federalist structure what is certain is that littler states will end up getting even a shorter end of the stick than their size would suggest (the nature of big crowding out little).

Posted by Jimm | January 29, 2007 6:40 PM

I think the most telling thing about our system is that despite being one of the oldest democracies on earth, I'm unaware of any other countries adopting it.

Posted by digby | January 29, 2007 9:50 PM

Well, one of the biggest problems we have right now is that we have totally ignored the clear provision of the Constitution that the LEGISLATURE should control starting and ending wars, with the executive only acting to manage the forces while the war is being fought. If we hadn't totally gutted the war powers of Congress, then this election would have worked to get us out of Iraq. Perhaps we should be paying more attention to implementing the Constitution we have.

Posted by MQ | January 29, 2007 11:36 PM

I think the most telling thing about our system is that despite being one of the oldest democracies on earth, I'm unaware of any other countries adopting it.

I may be playing a little fast and loose here, but I'm pretty sure that a number of Latin American countries adopted quasi-US constitutions after independence, regarding their northern cousin as a model of emulation. Unlike the US, though, the potential to develop into a strong-president model was quickly exploited for authoritarian purposes.

(There's a decent paper here: "The unintended consequence of Latin American constitutionalism is that it perpetuated the very ills that were sought to be avoided. Elite mistrust of the masses led to the overcentralization of power which in turn facilitated the very dictatorship and unrest which constitutions sought to cure.")

Off the top of my head, the only developed nation that comes close to the US constitutional model is the French Fifth Republic, because De Gaulle demanded a strong-president system. Make of that what you will. Germany and Japan, of course, respectively got weak-president and monarchist parliamentary systems after WW2.

MQ: fair point, though Federalist Society types would make the same argument against all manner of things they regard as clear provisions. At very least, it's fair to say that there's rarely been a time when the United States has implemented the whole of its constitution all of the time.

Posted by pseudonymous in nc | January 30, 2007 12:42 AM

Getting the GOP on the record voting against a bill defunding the surge will be good enough, even though it will get vetoed, way better than a non-binding resolution.

Then the non-paying-attention public will have one vote that will be referenced for the next two years showing exactly who stood up to the President and who stayed with him despite the disaster at hand.

Posted by ohiomeister | January 30, 2007 11:36 AM

Didn't read it, but skimming it and reading his blog regularly, I'd say the book is a mixed bag. See also his recent Nation piece suggesting that somehow only complicated "legalistic" reasons can be offered to impeach Bush.

This underlines one annoyance I have -- a fake powerlessness. As noted above, Congress CAN limit Bush in any number of ways. There is just not the will to do so. And, let's not just blame the supermajority needed to do some things -- there are Democrats who only want to do half-hearted things.

Sandy Levinson himself is out there honestly whining about how we cannot get rid of Bush via a 'no confidence' vote (though he admits to a supermajority requirement being reasonable!) without underlining that a bare majority can do lots of things to limit Bush's power. If the will was there. Oh, and focusing on incompetence, when the problem is much worse than that.

I don't quite like the 22A, but among the questionable parts of the Constitution, is that really the one we should focus upon? A majority might just support it -- term limits tend to be popular. Likewise, there was a shot at beating Bush ... 2004. As to 2006, the Dems won nicely, but surely not resoundingly. They have a majority of about 10 in the House and a bare 1 in the Senate. Is this a sign that the people wanted Bush out?

Or, somewhat defanged, which the Congress can still do. As to others not signing up to our way of gov't, depends on what you mean. For instance, if anything, in recent years more nations are adopting our respect for judicial review -- IOW, "undemocratic" government. And, did you all really want Bush in control of a parliamentary gov't x number of years until the people had the wherewithall to kick him out?

Not moi.

Posted by Joe | January 30, 2007 7:44 PM

Is Jon Chait illiterate or just failing at being funny? Can he think of ANY 20th Century examples of dictators - even dictators who murdered their own citizens - who were ousted after a mere 7 years? Is his hatred of Bush so irrational that he can't be satisfied with the man's departing from office after 8 years, and would abolish the 22d Amendment - thus ending the American Republic - just to give him a punch on the nose?

Posted by Ultima Ratio | January 31, 2007 9:21 AM