The Word and the World: An Introduction to Levinson’s Our Undemocratic Constitution

Students of constitutions believe that there is a significant connection between the words of constitutional texts and the world that these documents are meant to bring into being. This indeed is the working assumption of Sanford Levinson’s most recent book, Our Undemocratic Constitution, and it is a reasonable starting part: there must be some relation between the two, and in the case of the United States—Levinson’s subject—there is good reason to presume that the relationship is more than a trivial one. The words matter for the shape of our political world.

Levinson’s principal concern in the book is with those parts of the text of the Constitution that make it more difficult to realize fully a democratic political order in the United States. This is a crucial first step in developing a powerful constitutional theory since the underlying questions for the study of the text should be—even if much constitutional discussion avoids them—what kind of political order the Constitution is meant to bring into being and whether its various provisions are well-designed to facilitate this undertaking. While Levinson doesn’t spend much time developing what he means by a democratic political order, we may assume from the evidence of the text that its essential feature is that it should be strongly majoritarian. Thus, the votes of citizens of small states should not count for more than those in large ones, as is now the case in the Senate; and the president should be directly elected by the people without the device of the Electoral College intervening, which, again, effectively weights more heavily some citizen’s votes than others.

The various commentators assembled for the symposium that follows here display a variety of different kinds of assessments of Levinson’s argument. Carol Nackenoff is not so sure that we need to change significantly the constitutional text in order to realize a more democratic political order. She suggests that it is not the institutions as they are defined in the text that are important for a full realization of democracy but how they actually work, and that improving their workings can be done without changing the text. Mark Graber makes a parallel point when he argues that fixing the constitution—that is, rewording it—may not produce the results intended, and that we should be prudent indeed in embarking on the equivalent of buying a new car when, with some care, the old one still gets us to work. Leslie Goldstein for her part is not sure that the Constitution needs changing at all: it works pretty well in her view. Finally, Melissa Schwartzberg squarely faces the vexing question of just what process we should use to give us this new improved constitution: for example, what decision rules should be at work if the amended constitution is to be given to the people to ratify?

In their various ways, each of the commentators raises what I believe to be a central concern of constitutional theory. For, each of them, Schwartzberg for the moment aside, worry about the relation between text and world, and thereby raise the question of by what means attractive political orders can be constituted—that is created and maintained—and what role a text plays and can play in that on-going process. Schwartzberg also points to this question of process by raising the question of whether some forms of constitutional ratification and amendment are likely to be more successful in creating and maintaining the desired political order. Here we have then what I think should be the twin concerns of a comprehensive and compelling constitutional theory: what sort of political order are we trying to constitute, and what are likely to be the successful means—Machiavelli called them “modes”—in bringing it into being, maintaining it in the face of inevitable corruption and deterioration, and improving what has been badly done in the preceding and continuous efforts to properly constitute ourselves?

Thus, the first question is what sort of people, what sort of political regime, should we aim for in our constitutive efforts? Levinson...