Our Undemocratic Constitution—How Bad Really Is It?

Sanford Levinson, as is his wonderful habit, has written a thoughtful and provocative book in Our Undemocratic Constitution. He takes to task several of the foundational features of our more than 200-year-old Constitution, including even equality of representation for each state—so basic that it is the one remaining feature of our Constitution that Article V forbids amending. Additional recipients of his tightly reasoned attacks are the veto power of the president, life tenure for the Supreme Court, the Electoral College, the fixed length of time for each presidential term no matter how unpopular the president, the prohibition on a third term for the president, the relatively lengthy time gap for both Congress and the president between being elected and taking office—early November until January—and the absence of what might be called a disaster provision to allow for replacement of Congress if huge numbers of its members were incapacitated or destroyed all at once.¹ He allows that some of these problems might arguably be dealt with by statute rather than constitutional amendment, for instance a statute saying that “good behavior” tenure still applied to federal judges but that the length of Supreme Court justices’ term of office would be eighteen years, with each president being allowed to appoint two justices per four-year presidential term. (By the way, it is not difficult to imagine what the current Supreme Court would say if a challenge to such a statute were brought before them.) Most of the difficult provisions, he acknowledges, could be altered only by constitutional amendment at a minimum, and one of his favorite reforms, changing representation in the Senate, would require an altogether new constitution. Thus, he openly calls for a constitutional convention to draft a new American constitution for our new age, the twenty-first century. This is a brave book; some may argue, a reckless one.

It happens that while I was reading the book, I was simultaneously having discussions with several friends over my own decision—was it brave, was it reckless?—to get surgery on one of my toes. The toe had a dislocated joint; to me it looked seriously deformed. My friends said it was not such a big deal. It did occasionally cause me some slight but definitely noticeable pain. Still, the pain alone was not enough to motivate me to surgery. It was much more the idea that the toe was deformed, or at least appeared deformed compared to my mental image of how it should look and indeed had looked for most of my life. To my friends’ universal dismay, I went ahead and had the surgery, in their view risking serious long term harm for the sake of correcting a genuinely minor problem.

I kept getting the nagging feeling as I thought about Levinson’s arguments that something parallel was going on in this book. Levinson calls our Constitution undemocratic because it contains many deformations from his mental image of what a truly democratic republic should look like. Our current condition is not terribly painful—yes, the Electoral College has imposed on us, over the centuries, a handful of presidents whose opponents did slightly better in popular votes, and, yes, the fact of giving each state an equal number of votes in the Senate appears to produce a certain redistribution of resources from large state to small. Are these small bits of pain, and the potential for worse pain from the other structural problems he identifies, worth the risks entailed in the kind of major surgery of a constitutional convention—one where everything would be up for grabs and one which Levinson argues should be adoptable in a single national yes-no plebiscite?²

For the authors of the Federalist Papers, the Constitution would establish adequately “popular government”—a republic, properly speaking—if it were derivable from, and accountable in the end to, the “great body of the people.” Since the people periodically would elect the state legislators who would elect the Senate, and the people would elect the electors who chose the president, and the Supreme Court justices would then be chosen...