Wednesday, February 17, 2010

Levinson's "Our Undemocratic Constitution": a book whose time has come?

This Swampland roundup of disaffection with the Beltway reminds me why this weekend I was moved to check out of the nearest college library Sanford Levinson's Our Undemocratic Constitution (2006), a book whose moment, I would think, has arrived. From Swampland:
--D.C. dysfunction seems to be the theme of the day. Bayh says it's why he's retiring. Former Clinton chief of staff and Center for American Progress president John Podesta, citing GOP obstructionism, says the political environment "sucks." Tea Party angst over big government run amok lands on the front page of the New York Times. A Wall Street Journal headline trumpets: "Senate Woes Flag Wider Disease." The efficacy of Washington today can certainly be debated -- Norman Ornstein recently argued the 111th Congress has been the most productive in decades -- but there is at least a widespread perception that something is broken inside the beltway.
In Our Undemocratic Constitution, Levinson argues that we need a Constitutional Convention to adapt the document to our current needs. He portrays the Constitution as a blueprint for legislative sclerosis and misrepresentation of the will of the people. He indicts the "triple veto" on legislation: the Senate can kill a House bill, the House a Senate bill, and the President a House-Senate bill. He details the distortions and indeed dangers imposed by long lame-duck tenures for Congress and for the President.  He laments the power that life tenure confers on unelected judges, and exposes dangerous ambiguity in the delineation of the powers of the President..  Overarching all is the Constitutionally imposed difficulty of amending the Constitution; Levinson points out that "no other country -- nor, for that matter, any of the fifty American states -- makes it so difficult to amend its Constitution." But the centerpiece of democratic dysfunction is, natch, the Senate.

Among the facts that Levinson marshals about the Senate: the most populous state, California, has nearly seventy times the population of the least populous, Wyoming -- and both of course have the same representation. As a result, the Senate redistributes wealth from the most populous states to the least: as of the time of writing, for example, Wyoming had received seven times as much in homeland security largess per capita as New York. Prior to the 2006 election, the Senate's 44 Democrats had received more votes than its 55 Republicans.  I can't wait to deploy my sixth grade math skills and abacus to determine what percentage of the overall population is represented by the 60 Senators who voted for the health care reform bill last December.

Levinson's book flipped a switch in my mind. I have always regarded the Constitution as mildly archaic but also responsible for the country's long-term stability, the preservation of liberty, and our historic ability to self-correct when policies go awry or injustices become manifest to a majority. I still do believe those things, to a degree. The Constitution enabled U.S. development; it was the most enlightened scheme of government of its day, and the rights it enshrines are precious and for the ages. But its deepest flaw is the built-in difficulty of amendment, and that is killing us now.  The Electoral College alone has wrought catastrophic damage in the person of George W. Bush.

Recognizing the structural fetters in the Constitution also highlights to me the absurdity of treating it as holy writ in an interpretative sense. The most egregious fallacy of the doctrine of "original intent" is the assumption that we can divine that intent -- as in any product of human language, the intent is in multiple instances forever elusive, infinitely arguable. But a near-equal fallacy is the notion that we should always be bound by "original intent" even if we can divine it.  We must maintain freedom to interpret, as to amend. No other free society binds itself so rigidly to a short written document. Our freedoms do not depend on our doing so. Our assumption that they do is a national neurosis. We suffer from obsessive-Constitutional disorder.

1 comment:

  1. The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

    Every vote, everywhere, would be politically relevant and equal in presidential elections. Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states.

    The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes--that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

    The Constitution gives every state the power to allocate its electoral votes for president, as well as to change state law on how those votes are awarded.

    The bill is currently endorsed by over 1,707 state legislators (in 48 states) who have sponsored and/or cast recorded votes in favor of the bill.

    In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). The recent Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. This national result is similar to recent polls in closely divided battleground states: Colorado-- 68%, Iowa --75%, Michigan-- 73%, Missouri-- 70%, New Hampshire-- 69%, Nevada-- 72%, New Mexico-- 76%, North Carolina-- 74%, Ohio-- 70%, Pennsylvania -- 78%, Virginia -- 74%, and Wisconsin -- 71%; in smaller states (3 to 5 electoral votes): Alaska – 70%, DC – 76%, Delaware --75%, Maine -- 77%, Nebraska -- 74%, New Hampshire --69%, Nevada -- 72%, New Mexico -- 76%, Rhode Island -- 74%, and Vermont -- 75%; in Southern and border states: Arkansas --80%, Kentucky -- 80%, Mississippi --77%, Missouri -- 70%, North Carolina -- 74%, and Virginia -- 74%; and in other states polled: California -- 70%, Connecticut -- 74% , Massachusetts -- 73%, Minnesota – 75%, New York -- 79%, Washington -- 77%, and West Virginia- 81%. Support is strong in every partisan and demographic group surveyed.

    The National Popular Vote bill has passed 29 state legislative chambers, in 19 small, medium-small, medium, and large states, including one house in Arkansas, Connecticut, Delaware, Maine, Michigan, Nevada, New Mexico, North Carolina, and Oregon, and both houses in California, Colorado, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, Vermont, and Washington. The bill has been enacted by Hawaii, Illinois, New Jersey, Maryland, and Washington. These five states possess 61 electoral votes -- 23% of the 270 necessary to bring the law into effect.