Is It Time for a Constitutional Convention? University of Texas Law Professor Thinks So

198px-ConstitutionoftheUnitedStatesage1.jpg
Time to Scrap It?
University of Texas law professor Sandy Levinson (he's also a visiting professor at Harvard) is one of the most respected constitutional law scholars in the country, and, increasingly, one of the most iconoclastic. Levinson's scholarly crusade been calling attention to the Constitution's "hard-wired" features (e.g., the Senate, life tenure for Supreme Court justices, the difficulty of removing presidents) that he believes makes America fundamentally undemocratic. Levinson has come to the .conclusion that "the system just does not work anymore. The output fails. It's not a government that can solve problems."

To Levinson's credit, he been pointing out the flaws in our Constitution for nearly 15 years -- he is not simply a disgruntled "lefty" professor who is mad about the Tea Party's intransigence holding up Obama's agenda.

But is he right? Is Levinson a modern-day Cassandra we will wish we would have listened to or is it the people -- the politicians, the voters -- rather than the document that bear the blame?

One of the hard-wired features that most rankles Levinson is the Senate. As he points out, the Senate may have made some sense in 1789, when the populations differences between state weren't as large, but today, Wyoming has 1/70th the population of California and equal voting rights in the Senate. (Nevermind the fact that the Senate ensured equal voting rights for the slave states thus precipitating the Civil War).

To take one example of how the Senate distorts democracy, after the Newtown shooting there was 90 percent support for the background checks gun legislation, but the bill died in the Senate because rural, less populous states' senators killed it (among others). Put another way, using the filibuster, senators, until Harry Reid invoked nuclear option, representing just 11 percent of the population could kill any piece of legislation.

What is more, Levinson notes, is that the Constitution is devilishly hard to amend. Critics point out that there have been 27 amendments to the document over the years, but the obvious retort is that the first ten, a/k/a the Bill of Rights, were largely contemporaneous with ratification and three more (13th-15th) were pushed on a defeated South after the Civil War, and let's not talk about the disaster that was the 18th Amendment (Prohibition).

Moreover, the last real push at a "big" or substantive amendment, the Equal Rights Amendment, lost steam and failed to gain ratification. The 27th Amendment -- which prevents laws affecting Congressional salary from taking effect until after the next election of the representatives -- seems like thin gruel comparatively.

Whether we think a constitutional convention is necessary we should give Levinson's scholarship serious thought. Perhaps we are simply in a passing era of high partisanship and fever will lift. Perhaps not.

The real issue underlying Levinson's scholarship is what kind of democracy we want. Do we want a more Western European parliamentary style of government or are we content with a Constitution that makes changes/legislation difficult? Do we have faith that the Constitution is up to challenge of solving our problems? As the days of dysfunction grow longer in the tooth, I'm increasingly worried that it's not.


Advertisement

My Voice Nation Help
4 comments
teebonicus
teebonicus

I don't see my post, so here is the gist of it again.

Levinson's complaint about the Senate is ridiculous. The 17th Amendment kicked out one of the legs from the stool that supported checks and balances. The Senate is, de facto, merely another populist chamber of the legislature, mirroring the House, but with fewer members and slightly different parliamentary rules.

Repeal the 17th Amendment, and we will get that check back into place, and it was a CRITICAL ingredient in diluting rampant populism (read, DEMOCRACY), and was structured that way for the purpose of thwarting majoritarian power. The country should be grateful, not angry, that the Senate (by mistake, I'm sure) smothered that demonic baby in the crib, namely, universal background checks. First, the 90% poll is suspect due to the ideologically slanted form of the questionnaire. Second, fundamental rights are not subject to a plebiscite, actual or by proxy.

Summary: Levinson is all wet, and not only on that point.

teebonicus
teebonicus

The targets of Levinson's complaints are critical design features (though bastardized by the 17th Amendment) that exist specifically to thwart the crushing of the minority's rights by the majority.


Since that purpose is a core component of ensuring and protecting true individual liberty, the most that should be done is a repeal of the 17th Amendment. The so-called 'controversial' background check bill in the Senate was a phony plebiscite-by-proxy being imposed on the people, and they should be GRATEFUL for its defeat, not bitching about it. It's amazing enough that the Senate stumbled into the proper result considering that the 17th Amendment has for the most part destroyed its intended purpose - to represent the states' interests in juxtaposition to the populist House of Representatives, instead of duplicating it.

robscottwilk
robscottwilk

The Founding Fathers did not want a "democracy".  They feared "democracy" as a tyranny of the majority.

So they worked very hard to create a Constitutional Republic with MANY, MANY, checks and balances.

I for one am not interested in living in a "democracy".  As the author points out, if we had proportional representation now in the Senate the Right to Keep and Bear Arms might already have been lost.  That's what happened in Britain where the Parliament is not bound by a Constitution or Bill of Rights.  And I would point out that Britain is now a more violent country (exclusive of murders - but if you take out black on black violence in the US our rate is comparable to Europe) than the US.

We fought a civil war (mis-named the "Them American Revolutionary War") to get out from under Tyranny.

I'm willing to fight to keep the Constitutional Republic and the Bill of Rights, most specifically the Right to Keep and Bear Arms.

teebonicus
teebonicus

@robscottwilk- So am I, pardner. But we really need to dump a couple of constitutional amendments to restore the republic to its original ingenious design.

Revise the 14th Amendment to remove the preemption of state citizenship, and get rid of the 16th and 17th Amendments entirely.

There is more to the 14th Amendment problem than I want to explore just now, but its structure deliberately undermined state sovereignty in more ways than the issue of fundamental civil rights. Mandating universal recognition of the Bill of Rights isn't the problem of which I speak; that isn't a problem at all, and was the ostensible reason for the amendment in the first place. It is the usurpation of state citizenship in the order of the national hierarchy that tosses the monkey wrench into the gears

But that's a subject for another day.

Now Trending

Houston Concert Tickets

From the Vault

 

Loading...