- A Constitution for Our Generation?
Thomas Jefferson wrote to James Madison from Paris on September 6, 1789 that “no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct.”1 Jefferson expressed the view that, not only should each generation be able to choose the laws under which it is governed, but that the power of repeal is in no way equal to the power to choose anew:
It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents; and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.2
Jefferson understood the difficulty of overcoming entrenched interests. And his remark foreshadowed the difficulty of change through the processes outlined in the Article V amendment clauses—clauses which also prohibit one of the very changes critics such as Robert Dahl and Sanford Levinson have been advocating, namely, that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”3 Though Jefferson was concerned with the conditions necessary to maintain the kind of citizens who were capable of self-government, he was not afraid of considered political change.4
Sanford Levinson strikes a distinctly Jeffersonian posture in Our Undemocratic Constitution. Realizing the massive difficulties standing in the way of some of the reforms he urges readers to consider, he nevertheless provokes a wide audience to ask themselves whether the arrangements endorsed in 1787 serve Americans well today. I assigned this text to undergraduates at Swarthmore this past fall, and it did, indeed, provoke them to think new thoughts and to examine constitutional arrangements anew. Two decades ago, in Constitutional Faith, Levinson asked, “Is there anything built into the definition of law (or, more crucially, of the Constitution) that guarantees that it will necessarily be worthy of respect?”5 Blind veneration is not, Levinson argues, the proper basis for respect by citizens in a democracy; examination, critical reflection, and an assessment of performance in light of current conditions and needs is what is necessary. For Levinson, law achieves moral force when it stems from willful desire.6 Levinson would likely second John Stuart Mill’s insistence that failure to subject beliefs to examination and vigorous defense was unsuitable and even dangerous for enlightened, self-governing people.7 And indeed, Levinson, like Mill and his enlightenment forefathers that included Jefferson, believes in and desires progress in politics. Civilization follows upon the heels of barbarism, and societies should re-examine and cast off old institutions when the old no longer serve.8 If we live in a democratic age and the Constitution we inherited is insufficiently democratic, then we owe it to ourselves, and presumably to future generations, to remove constitutional ‘imperfections’ and ‘stupidities.’
In this highly accessible reflection, Our Undemocratic Constitution challenges Americans to propose a constitutional convention in order to make America more democratic and egalitarian. Levinson possesses a real faith that a new constitutional convention, if convened, would alter the Constitution in ways he would consider more democratic. As a Political Scientist, I need to introduce a few cautions. Those who care the most deeply about, and have perhaps already mobilized intensively around, particular constitutional reforms are the ones most likely to invest time and attention in this process. They...