Levinson, Sanford. Our Undemocratic Constitution: Where the Constitution Goes Wrong

International Social Science Review, Spring-Summer, 2008 by W. Richard Merriman, Jr.

Levinson, Sanford. Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). New York: Oxford University Press, 2006. 471 pages. Cloth, $28.

The fictional conceit that organizes Levinson's book is that "... Americans in 2008 will have the opportunity to vote on the following proposal: 'Shall Congress call a constitutional convention empowered to consider the adequacy of the Constitution and, if thought necessary, to draft a new constitution that, upon completion, will be submitted to the electorate for its approval or disapproval by a majority vote?'" (p. 11). Levinson's vote on the ballot question would be "yes" and his text presents evidence and arguments that "... a substantial responsibility for the defects of our polity lies in the Constitution itself" (p. 9). He then examines the structure of what we might call the Madisonian Constitution--the articles that specify the powers, responsibilities, terms of office, and modes of selection and eligibility for service of officers of the three branches of the national government-and the political maladies rooted in these arrangements.

Levinson's review of the pervasively "undemocratic" provisions of the Constitution begins with the legislative process, notably the proliferation of "veto points"--opportunities for deadlock--inherent in a bicameral legislature in which both houses have roughly equal power. He laments, too, the outsized clout that the Senate's scheme of representation confers on states with small populations. This complaint will be familiar to most political scientists and other students of politics and the Constitution.

Levinson introduces something new with his argument that the Constitution should be amended to allow speedy wholesale replacement of deceased members of Congress, a post-9/11 proposal embodied in a hoped-for Twenty-Eight Amendment. Levinson's exposition of the arcana of how new representatives are currently appointed gives an effective illustration of the unwieldy nature of key pieces of constitutional machinery that were designed over two centuries ago. One can almost hear ominous clanking noises coming from that machinery.

Levinson's discussion of the executive branch focuses on widely discussed problems: the Electoral College method of presidential selection, excessive presidential power used in unilateral ways, and the nation's inability, due to fixed terms of office, to rid itself of a president who, though not guilty of criminality, is either incompetent or simply bereft of support. Levinson offers familiar criticisms of life tenure for Supreme Court justices. He also gives attention to the Constitution's creation of "second-class citizens" who, by virtue of age, duration of citizenship, or other-than-native birth (for the presidency), are ineligible for election to national political offices. The lame-duck period between national elections and the swearing in of a new president and a new Congress is cited as a further example of the way the Constitution's provisions facilitate actions at odds with the popular will. Though for this book Levinson conducts a thought experiment that allows him to step out of what he labels the "iron cage of Article V," the inertia-producing article of the Constitution that addresses how the Constitution may be amended, it is difficult to imagine how his proposed changes could be actually accomplished. Article V's requirements that amendments originate only through the approval of two-thirds of both the House and Senate or at the initiative of two-thirds of state legislatures, and the companion requirement that approved proposed amendments must be ratified by three-fourths of the states, virtually guarantee inaction. Levinson acknowledges this difficulty, but offers his brief and accessible book as a means to help Americans to "envision together how to begin a serious political movement" aimed at changing the Constitution and its resulting political system (p. 172).

For beginning students of the Constitution and politics, this will be a valuable introductory book. Its value is limited, though, by two problems, one of which might have been avoided, and the other of which is inherent in the book's scope. The avoidable problem is the "laundry list" nature of Levinson's presentation of the Constitution's defects and resulting political problems. In his exposition, Levinson tumbles together profound problems and seemingly minor annoyances. The result feels at times like a hodgepodge. For example, the two-term limit on presidential service is clearly a check on the choices voters can make. But is this issue as important as the risk posed to popular election by the Electoral College? A clear presentation of the hierarchy of problems is needed.

The larger problem, reflecting Levinson's choice about the scope of his work, is that the book offers very little background on the "republican" design of Madison's Constitution. It is quite true, of course, that the original Constitution has many undemocratic features. It is sensible and correct to conclude that the Framers of the Constitution were not great friends of democracy. But that conclusion fails to illuminate the fact that they imagined themselves to be great friends of something better than democracy: republicanism and its commitment to a politics committed to res publica, discovering and seeking the public good. Describing the Constitution in negative terms of what it is not, democratic, without explaining what it was positively meant to be, republican, leaves unasked many of the most interesting questions about why the Framers did what they did.