Constitution Check: Has America’s basic document made American politics much worse?

Constitution Check: Fact-checking the news

Constitutional law professor Sanford Levinson says our Constitution is badly in need of an overhaul. Lyle Denniston evaluates 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.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

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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