Our Imbecilic Constitution, a rebuttal

Sanford Levinson, JD, PhD, is a recognized expert on Constitutional law. He received his Juris Doctor degree from Stanford Law School and received a PhD from Harvard University. His Bachelor of Arts degree came from Duke. He is also a law professor on the faculty at the University of Texas at Austin School of Law and has made numerous contributions to the literature on Constitutional law. But he is arguably most notable for calling for a new Constitution for the United States.

On May 28, 2012, he penned an article for the New York Times blog “Campaign Stops” called “Our Imbecilic Constitution“, in which he also reflects these views.

Arguably the largest fallacy regarding the Constitution is the idea that the Federal government is merely a large state government: a government like a State government, but merely at a “national” level. While this is arguably true in practice, it was not the kind of government the Constitution initially established. Because the point of view with regard to the Constitution and the Federal government has changed so much, basically a complete flip from what the Drafters intended, it is no surprise that people think of the Federal government as just one large State government.

The Constitution established a federated republic of independent sovereign States. A republic means that the will of the majority is tempered by the rights of everyone. Federated means simply an alliance wherein part of the sovereignty of its members is surrendered to the federation in exchange for certain benefits (see Article I, Section 10 of the Constitution). This is clearly not what we have today, which is why many States are once again attempting to reassert their sovereignty, and because the Federal government has grown so large and overbearingly powerful, those States are being met with resistance at every turn, including from the people within their borders.

The Federal government was to be considered subordinate to the States, because it was to be a government of the States. This can be clearly seen by looking at the First Article of the Constitution which defines Congress. That is the longest article in the Constitution, but it defines the smallest branch of the Federal government. We have two houses of Congress, initially chosen in different means, due to the Connecticut Compromise, which was a compromise to prevent the largest States from attaining a significant amount of power in the new national government. Indeed the Senate was comprised of members chosen and appointed by the State legislatures (changed with the Seventeenth Amendment), and in the Senate was vested the most power, arguably the most important is veto power over the President’s nominations. But with equal representation of all States in the Senate, it also neutralized any overbearing influence the larger States might have at the Federal level by keeping it contained in the House of Representatives and checked by the Senate.

The Constitution was, as I’ve argued here before, to separate the Federal government from the People. The only involvement the People were to have in the Federal government was through the House of Representatives. The States were to retain the control of the Federal government. The People were to instead have control over their own State and local governments, so by proxy of the States the People do control the Federal government, but not directly, and this was intended. The People were never supposed to have any more influence over the Federal government than just the House of Representatives.

Obviously in practice we have deviated so far from the initial foundations of the Constitution that it is no surprise that prominent law professors argue from a fallacious platform:

Begin with the Senate and its assignment of equal voting power to California and Wyoming; Vermont and Texas; New York and North Dakota.

Again this was intended to neutralize the influence of the larger States in what is intended to be a government of all States.

Consider that, although a majority of Americans since World War II have registered opposition to the Electoral College, we will participate this year in yet another election that “battleground states” will dominate while the three largest states will be largely ignored.

I agree that the Electoral College is problematic. But direct election of the President would be even more so. Having everyone at the Federal level directly elected (some have even called for direct election of Supreme Court justices) would break down the separation of powers intended by the Constitution. Tyranny would be the most likely result as it would turn our republic into a democracy: “five wolves and one sheep vote on what they want to have for supper” to borrow the words of Larry Flynt.

The fact that Presidential elections focus on “battleground states” is not a problem with the Electoral College, and going to direct election of the President won’t change that situation. Remember that in most elections, the Electoral College result mirrors the popular vote result. Instead the focus on “battleground states” reflects the problem with the People. I observed such in a previous article (see “Advice and Consent“):

The People do not have nearly as much ability [to keep the Federal government in check], especially given how easily we can be reduced into pesky, pestilent, squandering, argumentative and belligerent mobs, often at the mention of only a few words. In other words the People tend to act in a democratic fashion, as history has shown, and that is the fastest way to erode a republic.

The focus on “battleground states” is because of how political factions and political parties have dominated government. Everyone thinks of politicians only in terms of D or R, and sometimes I. People focus on whether a particular party will have a majority in a particular house in Congress rather than on what the members of those houses will do. And so because we are so focused on to which political party a person belongs, and we’ve devolved into bickering, belligerent mobs, is it no surprise that Presidential candidates focus more heavily on which States that don’t seem to be controlled by one of those mobs? It’s almost like gangs in inner cities duking it out over which neighborhoods and blocks they’ll control.

But if one must choose the worst single part of the Constitution, it is surely Article V, which has made our Constitution among the most difficult to amend of any in the world… The near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.

This “near impossibility” should be seen as a good thing, as the intent of the Fifth Article was to keep the size and power of the Federal government limited. This again goes to the plight of the smaller States: you make the Constitution easy to amend and you can easily end up with a “tyranny of the majority”. Make the Constitution easy to amend and you could end up with all kinds of tyranny.

But then again, we do have a Federal government that has been operating outside the Constitution for a long, long time, so it seems that having an amendment process at all is rather unnecessary. It seems Congress is just making up powers as it goes along.

But this difficult amendment process doesn’t make discussion seem futile. Instead its intention is to keep discussion at the appropriate level. Instead of having a Federal government that attempts to handle everything, why can these questions not instead be answered by the States? Is it necessary for the Federal government to tackle… well… everything? Of course not. And the Constitution stipulates in Article I, Section 8, that only certain questions should be answered at the Federal level, and specifically denies the ability to address certain questions in Article I, Section 9.

Our focus needs to shift such that we look to our State governments to address problems instead of the Federal government.

[Obama and Romney], like 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. (Indeed, Mormon theology treats it as God-given.)

The Constitution is not supposed to serve “us”. This is the lost focus I have been addressing herein. We have lost focus on the true nature of the Constitution and have, in our minds, morphed the Constitution into what we think it is instead of what it actually is. Indeed, most people are ignorant of the Constitution. That is a problem. And it needs to be solved.

And I cannot tell you into how many debates I’ve found myself with people arguing that the Constitution is either God-given or based on God’s laws.

But the “near religious veneration” Dr Levinson is observing I think is merely his own clouded judgment. The Constitution lays out the powers and scope of the Federal government. The Federal government has been operating outside the boundaries of the Constitution for so long that in recent years the People are, slowly, starting to recognize this and are demanding a change of course. If that is “near religious veneration”, then so is demanding your landlord abide by the terms of the lease.

But like many people who appear to not understand the true scope and nature of the Constitution, Dr Levinson has some ideas in mind in how to “reform” the Constitution, short of scrapping it in favor of a new one.

There have been more than 230 state constitutional conventions; each state has had an average of almost three constitutions.

Okay, perhaps he is calling for scrapping it and creating a new Constitution. And this is a clear demonstration of the loss of focus. The Constitution, again, established a federated republic of independent, sovereign States. If a State wants to scrap its Constitution and start anew, that is their business, and it doesn’t affect anyone but the State that so chooses. Scrapping the Constitution of the United States, however, affects everyone.

We could permit each newly elected president to appoint 50 members of the House and 10 members of the Senate, all to serve four-year terms until the next presidential election. Presidents would be judged on actual programs, instead of hollow rhetoric.

Oh this is dangerous beyond recognition. And this undermines the separation of powers that the Constitution puts into place. The President is to be subordinate to Congress, to enact into action and enforcement (while examining the Constitution himself) the laws passed by Congress.

If enhanced presidential power seems too scary, then the solution might lie in reducing, if not eliminating, the president’s power to veto legislation and to return to true bicameralism, instead of the tricameralism we effectively operate under. We might allow deadlocks between the two branches of Congress to be broken by, say, a supermajority of the House or of Congress voting as a whole.

What Dr Levinson seems to have forgotten, however, is that Presidents hardly ever veto legislation. According to Wikipedia, as of the time of this writing, President Obama has vetoed only two (2) bills. Yes, just two, out of how many that have come to his desk for signature?

And most Presidents vetoed so few bills as to not even register 1%. Andrew Johnson, who ascended to office after Lincoln’s assassination, vetoed just 21 bills while in office, but that amounted to 71% of the bills that came to his desk, and he was also overridden half the time. And typically the more vetoes a President has, the more that are overridden, and that requires a supermajority of both houses to accomplish.

So where exactly is the “tricameralism”? It sounds to me like most Presidents just rubber-stamp legislation.

However his idea of allowing deadlocks in Congress to be broken by a “supermajority of the House or of Congress voting as a whole” seems like a reasonable idea. I’ll have to see if he’s ever elaborated or explored the idea further. If anyone can, please point me to any resources in which he discusses the idea.

One might also be inspired by the states to allow at least some aspects of direct democracy. California — the only state with a constitution more dysfunctional than that of the United States — allows constitutional amendment at the ballot box. Maine, more sensibly, allows its citizenry to override legislation they deem objectionable. Might we not be far better off to have a national referendum on “Obamacare” instead of letting nine politically unaccountable judges decide?

I would certainly love to have a national referendum on “Obamacare”. And many people have called for national referendums on Federal legislation. The idea is problematic, and also emblematic of the lost scope of the Constitution. We should not be needing to have national referendums on any Federal legislation, as the Federal government should only be writing and enacting legislation within the scope of its enumerated powers.

But in denigrating the Fifth Article of the Constitution, it seems that Dr Levinson has forgotten that the Article stipulates two methods of amending the Constitution (emphasis added):

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress

The convention process gives the People a more direct ability of proposing and enacting Amendments to the Constitution instead of waiting for Congress to do so. Sure it’s not voting by ballot box, but it’s pretty close. And we’re talking about the Constitution of the United States as well, not a State constitution. To treat them as one-in-the-same is fallacious at best, yet that is what a lot of people, Dr Levinson included, seem to be doing.

As such the ability for a national vote on amending the Constitution also bypasses the protection the Constitution provides to the smaller States. A national vote means that the 15 largest States could work together to enact their will on the other 35. Voting along State lines through a convention process or by ratification through State legislatures neutralizes that kind of influence before it can occur.

Instead to ratify an Amendment to the Constitution currently requires the “yea” vote of 38 State legislatures or conventions. To elect a President, however, requires winning the electoral votes of just the 12 largest States.

Or consider the fact that almost all states have rejected the model of judges nominated by the president and then confirmed by the Senate. Most state judges are electorally accountable in some way, and almost all must retire at a given age. Many states have adopted commissions to limit the politicization of the appointment process.

Look to Iowa and the 2010 voting to see why this is a bad idea. This becomes very problematic when you talk about the Supreme Court of the United States. Judicial decisions that are influenced by the will of the people will lead to a very hefty patchwork of jurisprudence that would be difficult, if not impossible, for Courts to use as advice in future cases.

The problem we have today are judges and justices that are influenced by politics instead of adhering to the law and the Constitution. It is laughable to say we have a truly impartial judiciary.

What was truly admirable about the framers was their willingness to critique, indeed junk, the Articles of Confederation. One need not believe that the Constitution of 1787 should be discarded in quite the same way to accept that we are long overdue for a serious discussion about its own role in creating the depressed (and depressing) state of American politics.

The Constitution didn’t create the depressed and depressing state of American politics. The People did.