Constitutional law professor Sanford Levinson says our Constitution is badly in need of an overhaul. I evaluate the need for more conversation -- or maybe a national convention.
The statement at issue:
"Critics across the spectrum call the American political system dysfunctional, even pathological. What they don't mention, though, is the role of the Constitution itself in generating the pathology ... Most contemporary Americans ... have seemingly lost their capacity for thinking seriously about the extent to which the Constitution serves us well. Instead, the Constitution is enveloped in near religious veneration ... We are long overdue for a serious discussion about [the Constitution's] own role in creating the depressed (and depressing) state of American politics."
-- University of Texas constitutional law professor Sanford Levinson, in an op-ed column May 29 in the New York Times, headlined, "Our Imbecilic Constitution: Why is our government so dysfunctional? Look back to 1787."
We checked the Constitution, and...
A national constitution that has lasted 225 years, with only 27 formal amendments, very likely has done a fairly good job of making and maintaining a functional government. One does not have to hold the American Constitution in religious awe to believe that. The fact that it has survived multiple crises of governance -- some of which no other system of government might have weathered -- probably says a good deal about its workability.
But if one has followed the career of Professor Levinson, a creative but severe critic of the Constitution as presently written, one might be tempted to conclude that the need for reforming the basic document has never been more urgent.
Indeed, his just-published column in the New York Times is a very short version of his insistent call for what he himself calls "radical reform." His arguments are laid out in full in two books: Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It), and, more recently, Framed: America's 51 Constitutions and the Crisis of Governance.
The "crisis of governance," for Levinson, is plain to see in contemporary America's deeply polarized (and frequently gridlocked) political order. Indeed, the introduction to the book Framed is a chronicle of the recent breakdowns in that order.
What is unique about Levinson's scholarship, though, is that he traces most of the nation's political ills to his view that the very structures created by the Constitution -- and by many state constitutions, too -- are the real source of dysfunctional government.
His core aspiration is to further democratize those structures -- for example, by getting rid of the Electoral College and its indirect method of electing presidents, ending equal representation of the states in the Senate, limiting the presidential veto of legislation, and taking away unlimited terms (that is, life tenure) for Supreme Court justices. He also favors transferring some national legislative power back to the people, so that they could enact laws by referendum (as they can in many states).
The professor is under no illusion that any of these reforms will come about through Article V of the present Constitution, governing how the document is to be amended. So, perhaps his most radical idea is to summon a new constitutional convention, to go over the Constitution structure by structure and change what is needed to make government work again.
To critics who have said that such a convention would be a renegade gathering, hell-bent on destroying the current Constitution and particularly taking away civil rights, Levinson basically responds that he has a good deal more faith in the people to be sober self-governors. (In fact, Levinson is a pioneering member of the academic movement to promote a new form of "popular constitutionalism." In much over-simplified terms, that involves a commitment to more democratic control of what the Constitution means, displacing -- at least in part -- judicial review.)
There are many other explanations, competing with Levinson's, for any "crisis of governance" that may now be threatening American's public order. Not least of these is the change in political attitudes away from pragmatic government based on compromise and toward subservience to "pure" forms of ideological commitment.
And that trend has been reinforced by the highly developed capacity to craft political representation schemes so that the system maximizes incumbency, guarantees partisan outcomes, and minimizes ballot competition.
One also should not overlook the way political campaigns are financed these days, and whether that has geared the system toward more control by Big Money interests pursuing their own agendas without regard to their popular support.
Levinson, though, is surely right about one thing: it is time for a serious -- and respectful -- national conversation about the nature of America's political order, and the role -- if any -- that the 225-year-old Constitution might have played in generating or tolerating the system that now exists.
Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.
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Howard Schweber: A Little Electoral Math
The National Popular Vote bill changes the way electoral votes are awarded by states in the Electoral College, instead of the current 48 state-by-state winner-take-all system (not mentioned in the Constitution, but since enacted by states).
Under National Popular Vote, every vote, everywhere, would be politically relevant and equal in every election. Every vote would be included in the state counts and national count. The candidate with the most popular votes in the country would get the 270+ electoral votes from the enacting states. That guarantees the candidate with the most popular votes in all 50 states and DC wins the presidency.
The bill uses the power given to each state in the Constitution to change how they award their electoral votes for President. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have been by state legislative action.
The bill has passed 31 state legislative chambers in 21 states, and been enacted by 9 jurisdictions with 132 electoral votes - 49% of the 270 necessary to go into effect.
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Per Bill Bishop's book "The Big Sort" we have been happily dividing into like minded communities, districts, states and regions for the last 30 years. This coincides directly with the rise of the internet and 24/7 mass communication. We no longer have to listen to, read or watch anything with which we don't agree.
You don't get safe congressional districts unless you have a constituency which is equally safe. You might get a reliably R or D district, but the representative must compromise with voters of the other party to get elected. That is no longer true in many districts. More and more legislators are being elected by landslide margins. Compromise of any kind is no longer either necessary or even desirable if the politician wants to keep his/her seat.
This does not augur well for the results of a Constitutional Convention, unless what you anticipate coming out of it is the division of the US into highly autonomous regions with the responsibility for everything but defense, foreign relations and some treasury functions.
My favorite is Article I, and Article IX mostly ignored.
A national constitution that has lasted 225 years, with only 27 formal amendments..
there have been 17 amendments to the constitution and two of them deal with alcohol...
the first ten amendments also known as the bill of rights is a part of the constitution..it is also a stand alone legal document that for all intents and purposes is beyond the reach of a convention...
no one knows how long the political wrangling would take to figure this out or to know if you can limit the convention to just one item or if once an article 5 is passed is the entire constitution invalid and open for repeal...is that something you would really want...
in todays political climate under what circumstances would you be able to call an article 5 anyway...
Better to take it a step at a time, as we have for 227 years. We would have far less gridlock if, for instance, our Senate took up-or-down, majority rule votes on bills, just as the framers envisioned. Any so-called "Senate rule" that actually amends the Constitution by shortcut, such as requiring super-majorities for passage of a bill, should be unconstitutional on its face. The SCOTUS should be repaired by limiting each justice to a set term (8? 12? 15? years), with the appointments staggered so that each president appoints a justice every 2 years (during off-election years), with nominees only rejected for cause. A situation in which Nixon appointed 5 justices in 5 years, while Carter appointed zero in 4 years only makes the SCOTUS lop-sided, insulated from national priorities, and subject to strategic retirements that insure a political advantage of one party over the good of the USA. In any event, there's good reforms that could be made step-by-step without risking tossing out the baby with the bath.
People should pay more attention to their Representatives on both the State and Federal level and less so on Senators and Presidents as neither really represent 'the people' as part of their job description.
who could move the discussion forward. Our society is becoming "beholden" to special interest groups
whether ideological, theological or monied. The civics education programs, which used to stress our debt to our society,and the rule of law, have been gutted. The classical example of the general population's lack of Constitutional knowledge is when the special interest parties push for an amendment to punish people who desecrate our flag. Oh, and the fact that a basic tenant behind a republic is to elect people who can represent their constituents; not sign pledges to one person outside the realm of responsibility.
Except for some glaring errors in judgement, like allowing slavery and restricting the right to vote to certain white male individuals, the general enlightened message of the document holds. If the society
is willing to study the document and what it means it terms of the history of civilizations as well as governments let's get it on.
There is no way that anything positive can be accomplished with our present Citizens in improving our Constitution.
Having written this; I wonder that these men were able to do as well as they did.
I also wonder how many grasp the trouble we were in after the Revolution and with the Articles of Confederation. One should remember that this was 12 years of trying to create a government for all states. We came very close to failure.
How in the world were some men that believed in civil rights and individual freedoms as understood at that time able to compromise with some hard headed business men? How were these men able to convince the States Righters of the need for a strong Central Government? One reason is that what we had was a complete failure.
I see no way for any meaningful changes in our Constitution with the present political makeup of the US unless we have another Great Depression; and I am not sure I want to see the result.
which makes my point. How many of the HuffPost readers understand that the Articles of Confederation were more of a hindrance than help because they created an atmosphere
of conflict between the various States. Our Congress is repeating the pattern.
It's not that people can't understand the Constitution it's that the document is quite like a religious text that needs to be taught by qualified teachers. It did not spring full blown from the head of Zeus. As you said it took a long time for the scholars that were gathered in Philadelphia to realize a plan for a Republic. Scholars well read in philosophy,languages and the history of governments. Liberal arts.
We can hope that there are enough thoughtful voters abroad in the land, who are willing to
study the Constitution at local community colleges the way they study religious texts.