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Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It)

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For better or worse (I think, worse), our educational system tends to paint a semi-religious portrait of the Founding Fathers and their most hallowed offspring-- the Constitution. Questioning the wisdom or perfection of either, I'm afraid, strikes too many Americans as unpatriotic, at best, and treasonous, at worst. For proof, take a look at reviewer Horton's thoroughly ignorant version of this mind-set. It's ironic that those who would honor the nation's ideals by turning our Constitution into Holy Writ, at the same time, do the most to dishonor its democratic spirit.

Levinson's brief text (180 pages, excluding the helpful appendicies), goes beyond the popular depiction to point up those provisions among the six Articles and twenty-seven Amendments whose democratic pedigree are in serious doubt. The Electoral College is probably the best known and most egregious of these. Others, perhaps less glaring, but no less questionable, include distribution of the Senate, life tenure for Supreme Court justices, excessive presidential power, and a half-dozen other dubious provisions. You may agree with some, disagree with others, but all merit second thoughts in light of decades of practical experience.

It's important to point out that Levinson does not take up the hornet's nest topic of Constitutional interpretation. There is no discussion of whether Constitutional provisions establish a Right of Privacy or a Right to Equal Access, or other questions of interpretation that tend to rile partisan emotion. Instead, the focus remains exclusively on those structural aspects requiring no judicial review, as, for example, the clear provision limiting Senatorial representation to two per-state. So readers looking for ammunition for-or-against abortion or in behalf of affirmative action, for example, should look elsewhere. In fact, Levinson's concern goes beyond interpretation to elements of the bedrock itself. (He does, however, flirt with aspects of interpretation concerning the matter of presidential powers.)

The book's tone remains soberly analytical throughout, adopting a middle course between dry detachment, on one hand, and partisan emotion, on the other. And while I think that's the proper course for making his case, it's hardly the type of rhetoric geared to arouse the public into the remedial action that remains a secondary aim of the work-- and may also account for the rather skimpy response on this particular website. Nonetheless, the work serves to remind those who will listen, that, despite much well-meaning veneration, the Constitution remains forever an unfinished document.

If you are looking for an unvarnished, unbiased critique of the U.S. Constitution along with some recommended changes and recommendations on how to amend, I highly recommend this book. However, this book has a couple of major flaws that cause me to not support the author's promotion of our holding a constitutional convention in the near future.

What I liked about the book is the conversational tone, the lack of rhetoric and legalese, and while the author Sanford Levinson is a proud liberal, he's extremely fair, unbiased, and respectful to Americans who may not share his political ideology. In fact, the author stays away from reviewing or promoting any amendments that are hot-button social issues like abortion, gay marriage, or current special interest attempts to establish religion.

Instead the author mostly focuses on what he believes are structural weaknesses, like the unequal representation of voters regarding how representation is structured in the Senate or when voting for President or his belief that judges should be term-limited rather than having lifetime appointments. This isn't to say the book is boring by sticking to structural issues, in fact quite the opposite, the book is filled with anecdotes like how senators from smaller states wield enormous power over senators from large states or how campaign strategies could improve if we scrapped the electoral college when voting for President and went to a popular election.

The highest compliment I can pay the author beyond a well-written book is that he changed my position on a number of issues. I embrace republican values and the fact our founders created a constitutional republic rather than a democracy; in fact I was and remain extremely suspicious of pure democracy just like the framing architects (i.e., Madison, Hamilton, et al.). However, the author makes a strong case that more democracy in regards to each voter having equal power would improve the will of the people to influence their government in a manner that doesn't risk our liberties.

I do believe Dr. Levinson's editorial decisions leaves the book flawed in two areas.

Most Americans and the media are woefully ignorant regarding what democracy is relative to what we established in 1787, which was a constitutional republic especially in terms of how liberty is impacted by each form of government. These differences were a primary concern of James Madison's when he evaluated different forms of government and created and successfully introduced the framework of a constitutional republic at the Philadelphia Convention (see Wikipedia page for "constitutional republic" for a pretty good definition and comparison). Indeed, Madison focused strictly on past republics to construct the framework of our government and often dismissed democracies as little better than monarchies.

I believe Dr. Levinson should have included a chapter early in the book that discussed the differences between our republican form of government upon ratification and how its evolved towards a more democratic form of government, and the benefits but also the costs and risks of continued democratization in terms of individual liberty which are much better protected in a republic than a demoracy.

This leads to the second weakness of the book. While writing the book, Dr. Levinson obviously had a lot of concern thrown at him by liberals (pg. 174) regarding the frightening prospect of a constitutional convention in which the results of such a convention severely limited or eradicated many of our rights so unpopular with social conservatives (i.e., equal protection, judicial power to protect our rights from unconstitutional legislation, the 9th amendment, establishment clause, and full incorporation of the 14th amendment).

Dr. Levinson calls for a constitutional convention in hopes his concerns are addressed, while failing to address the fact that some interest groups will certainly leverage this opportunity to meet their political agenda as well that directly contradict the founding ideals of liberty by the framers. In fact he correctly terms this liberal concern "Madisonian" for reasons provided above.

His response to what I believe is a valid concern by liberals is a mere one paragraph that is unsupported by any empirical evidence, it's merely a vague notion held by Dr. Levinson's faith in the democratic process in spite of our continued inability to currently hold meaningful debates free of rhetorical fallacies on other hot-button subjects (e.g., gay marriage, where conservatives refuse to even discuss equal protection rights, instead the Media allows them to get away with opposing gay marriage due to their personal religious beliefs without challenging them on equal protection grounds).

These two flaws are not enough to stop me from recommending this book. The book really helped me to more critically analyze many features of our Constitution that do prevent a more optimal form of government, features I took for granted can not be changed where Levinson effectively challenges our inertia. The book also opened the door to my evaluating the Constitution in a more critical manner, which I greatly appreciate Levinson doing for me.

According to Levinson "The Constitution is both insufficiently democratic, [...] and significantly dysfunctional" and therefore "we should not longer express our blind devotion to it". Levinson wants the reader to join him in a call for a new constitutional convention, and "Our Undemocratic Constitution" is the argument for that cause. Each reader must decide if Levinson succeeds.

Levinson takes the reader through the many shortcomings, pitfalls, and inadequacies of our federal Constitution. Regardless of opinion "Our Undemocratic Constitution is wanting, the first of which is a First Chapter.

Levinson presents the United States as "a country that professes to believe in democracy." Unfortunately, Levinson never presents the reader with his clear idea of democracy let along explain why it is better than what the United States is - a Constitution Republic, or a "constraint" democracy (professions notwithstanding). It has been over 150 years since the use of the phrase, "The United states ARE..." and even more years since a person called himself or herself a "Virginian" or "Carolinian". Presidential power and federalism has grown dramatically, but can we so easily say that we are now one big country and no longer a collection of "states"? Perhaps we can, but not without explanation. Unfortunately, Levison provides no explanation of his democracy and why it is superior and begins his book with the assumed premise that Federalism and a more direct democracy (?) is implicitly better.

The Journey takes the reader through unequal representation, bicameralism, the Electoral College, the tenure of federal judges, and the process required to amend the Constitution. During that journey the reader will meet some Straw men. The potential of a "Constitutional dictatorship" as a result of a "lame duck presidency" WAS an issue before 1933, before the 20th amendment to the Constitution. The inability to remove "disabled president" is noteworthy before 1967 and before the ratification of the 25th amendment, but not today. Levison freely admits this to be the case, yet still presents these as argument to throw out the baby because the bathwater WAS dirty 40 years ago.

The journey is filled with many, perhaps too many, assumed premise, "I suspect that most person are unconvinced..." pg 65, "one could easily read..." pg 71 "If one reads...which is certainly the most plausible reading, then it could well be..."pg 72 "It should be obvious that..." pg 87. "Easily read", "most plausible", "obvious that? Perhaps...but not without more.

Our Undemocratic Constitution does a fine job of shining the light on many aspects of our Constitution that are wanting. Levinson writes for the layman. It is because of this that Levinson should be more cautious and provide the reader with a first Chapter and more than the 180pg that are presented.

Levinson fails to address the many counter arguments to his position that exist both today and in 1787. He also fails to sufficiently differentiate between dirty bathwater and a dirty baby. Our Undemocratic Constitution addresses the dysfunctional of our current constitution without discussing what a future constitution and the process of getting there might look like. This is a deliberate choice by Levinson, but by doing so Levinson avoids the hardest task of all, addressing the arduous task of getting 300,000,000 people from 50 states to agree. Perhaps the words of Benjamin Franklin, following the singing of the "current" Constitution, provides a critical question for a reader:

"I doubt too whether any other Convention we can obtain, may be able to make a better Constitution: For when you assemble a Number of men to have the Advantage of their joint Wisdom, you inevitably assemble with those men all their Prejudices, their Passions, their Errors of Opinion, their local Interests, and their selfish Views..." September, 17th, 1787

Great book! I just devoured it in a few hours. Levinson reminds us that at the age of 73, Thomas Jefferson noted that "some men look at constitutions with sanctimonious reverence and treat them like the Ark of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment." Jefferson also suggested that we should "think about" revising the constitution about every 19 years to coincide with the arrival of a new generation.

After reading this book I had a palpable sense that our Founding Fathers would be disappointed in our stewardship of their remarkable work. Instead of worshipping the Constitution, we're responsible for maintaining it - during their lifetimes they actively amended the Constitution but they can't do that anymore.

Today, as we ask Supreme Court justices to extract 21st century meaning from 18th century passages, it helps to have courageous visionaries like Sanford Levinson remind us that "We" are still "the People."

September 17, 2007 is the 220th anniversary of the birth (signing) of the U.S. Constitution. Constitution Day should be touted more by the media and our schools. As noted by Paul Finkelman, "the answer to constitutional ignorance is more discussion of the constitution."

The value of Sanford Levinson's book is that most Americans either over-revere or know little or nothing about our founding compact. In fact, it is overdue for a tuneup and some tweaking to enhance the democracy of the United States in the 21st century.

Levinson's book provides a good critique of the most undemocratic aspects of the U.S. Constitution (e.g., the electoral college, presidential veto, life-tenure Supreme Court justices, and the almost insurmountable barriers in the amendment process). But most of this thesis/case has been made better previously. I urge interested readers to get Robert A. Dahl's book, "How Democratic Is the American Constitution?"

University of Texas law school professor Sanford Levinson has penned an intriguing if uneven argument for constitional revision. Although he is a distinguished law professor, this book is focused more on the workings of government than legal principles and is aimed at the layman rather than the legal audience. As a result, the book in engaging for anyone interested in how government should function.

Professor Levinson starts with the premise that American be asked whether to call a convention to revise the constitition. He then proceeds to offer arguments for why an informed citizen would vote for such a referendum. He persuasively argues that since many of the founding fathers (James Madison notwithstanding) did not treat the constitution as fixed and immutable, neither should we the people.

Some of Professor Levinson's arguments are stronger and more cogent than others. His chapter on the legislative branch offers telling examples of why representation by state in the senate gives disproportionate power to thinly populated states without any corresponding interest being served. Professor Levinson also offers interesting arguments for appointing Supreme Court justices to fixed eighteen year terms. Specifically, he points out that the development of the Supreme Court as a political body and the increasing longevity of justices creates perverse incentives for administrations to appoint young justices who will wield power long after the administration which appointed them is gone and perhaps well after they are capable of serving.

On the other hand, his chapter on the presidency, which is subtitled, "Too Powerful Presidents Chosen by an Indefensible Process, Who Cannot Be Displaced Even When They are Manifestly Incompetent," promises more than it can deliver. While problems with the electoral college have been widely aired (so that this book delivers nothing new), his other critiques are more likely to provoke a yawn than outrage. While the president may be tempted to abuse his powers or the voters may choose an unqualifed president, the constitition already contains an adequate remedy for these problems in the form of periodic elections. Giving Congress the power to remove the president through a vote of no-confidence is more likely to provoke endless battles between the executive and legislative branch than good government.

Another flaw in the book is that the author assumes that more democracy is inherently a good thing but, due to the limited scope of the book, doesn't adequately discuss the point. As a result, Professor Levinson is critical of some of the checks and balances which retard or prevent governmental action. The requirement that a bill pass the House and Senate and then be signed by the President is considered undemocratic compared to what could be accomplished by a unicameral legislature unfettered by a presidential veto. However, this position equates more legislation with more democracy. Since the government may have incentives to increase its powers at the expense of the people who elected it, a system requiring legislation to gain greater consensus could be more democratic. However, this slender book does not delve deeply into these underlying concepts.

Having noted these drawbacks, this review intends to praise through faint criticism. Professor Levinson has served up a useful conversation starter which is accessible to a wide segment of Americans. While readers may disagree with some of his suggestions, the conversation itself is worth having.

Haven't read it yet, but i've heard from other people that it's a great read. I'll find out sooner or later when i get to reading it. :) Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It)

I bought this product as "used-good" but what i did not expect was the dented sides and writing throughout the book. I understood i was buying a used product and expected some wear and tear but this item definitely should not have been classified as good due to the extensive pencil markings on every single page.

Sanford Levinson attempts to define and explain the creation of, what he terms, an "insufficiently democratic" and "significantly dysfunctional" constitution (9). The theme of the book seems deceptively simple. Yet Americans' familiarity with the events and political ideas surrounding the creation of the American Republic often blinds us to the nuance of the political debate as well as the uncertainty faced by those engaging in the debates. The most compelling argument by Levinson is that the founders never fully agreed on the finality of the constitution, leaving the debate open for future generations (17). Their indecision, Levinson argues, is an opportunity to heavily amend the constitution through constitutional conventions (174-175).

Our Undemocratic Constitution is a walkthrough of five constitutional objections. Two objections confront the unequal representation of smaller states, one is delegated to the expansion of presidential powers, one to the difficulty in constitutional amendments, and one to the Supreme Court's term of office. Although the majority of Our Undemocratic Constitution is given to showing various other benefits of voting for constitutional conventions, this review will largely examine Levinson's critique as it pertains to the tenure of the Supreme Court.

The assertion that life tenure is inappropriate for Supreme Court Justices is an argument older than the constitution itself. It was the anti-federalist Brutus, who in 1778, first openly criticized the tenure of the court. Brutus argued that the "good behavior" clause would be overly difficult to enforce, and would cause judges to "feel themselves independent of heaven itself." (Anti-Fed 78-79) Furthermore, the independent nature of the Court, Brutus argued, would bring about a Court with no restraints but those that judges would place upon themselves. That is a stark contrast to the branch Hamilton presented as the "least dangerous to the political rights of the constitution." (Fed Papers #78)

There is, however, an element to the ongoing tenure debate that the founders had no way of forecasting; namely, the highly partisan politics that continue to mold the Supreme Court. Here, Levinson strongly supports his thesis against life tenure. Justices have made it a habitual habit of resigning during the presidential term of their political leanings. The result is a political gerrymandering of the court, according to party and policy leanings (137). The theoretically independent Court presented by Hamilton "no longer makes sense" in a nation where the Justice is appointed by a particular party (134). Life tenure has thus given way to an even greater fear than Brutus' independent minded judiciary run amuck; it has given way to decades of imposed "political preferences on the country." (128)

Furthering the deconstruction of life tenure apologia, Levinson appeals to the independent judiciary of state governance. There is no state in the Union that grants life tenure to its inhabitants of office (134). The discrepancy of American willingness to accept a limited state tenure while maintaining the necessity of an unlimited federal tenure can be traced to the civic faith of American constitutionalism (chapter 1). American civic religion "venerates" and "ordains" the constitution in its originality, not allowing logical debate and hindsight to take place regarding its implementation (12, 17). If the federal government were to adopt the judiciary tenure of the state, assuming American's would be willing to amend the provision to a fixed term, the result would still be political, but not as ostentatiously rigged by both the executive and judiciary branches.

Perhaps Levinson's strongest and most convincing argument for a term limit amendment is that "life tenure," as the behavior clause implies, does not necessarily mean "for life" (135). Justices can often find themselves in very poor health as they conduct their affairs. Since the constitution says nothing about judicial health concerns, many justices will only consider health issues problematic to their job if it affects their mental capacities (129). Surely other health issues can be equally debilitating in one's ability to perform necessary functions. Justice William O. Douglas remained on the Court after a stroke that raised ethical questions for the other Justices. Douglas' medical damage was extensive enough that the other justices would not count his vote in any 5-4 opinions (129). Another example includes Chief Justice Rehnquist, who battled through cancer and only issued nine opinions in the 2004/2005 session. Contrasted with the number of other Judges' opinions, ranging from eighteen to thirty-four, Rehnquist's weakened condition is self-evident. Such a determination, to place self-interest (and perhaps "egoistic narcissism") before that of the country, is not beneficial to the public (129).

Levinson also equates a diminished capacity to serve in a healthy manner with one's ability to personally relate to the population in need of service. As Levinson quotes, "Their (Justices) formative adult experiences took place forty years earlier...It is one thing to elect such individuals to govern. It is another to have them govern because elected individuals approved of them twenty or thirty years earlier (130)." I conclude that this particular stance would be extremely difficult to maintain, given the logical counter argument that the Supreme Court's job is not to match public opinion, but uphold the constitution, which I believe an eighty year old can achieve. The only way Levinson's "ability to relate" argument can be upheld is if Levinson's belief in the constitution as a "living" document, that each generation can decide what it means, is taken as an axiom, which it is not. Physical disability and the inability to relate to a given populace may both be handicaps, but while the first raises important ethical dilemmas, the second is mostly ideological.

Levinson's argument that a constitutional convention is necessary for implementing a policy of fixed judicial tenure is not lacking, but it does leave out other possible solutions. Levinson does not address the many ways congress could try to persuade the Court. Both the power of the purse and the legislative powers of congress could produce strong arguments on ways the congress could pressure the Court into fixed terms. Leaving this debate out, Levinson appears to have little faith in the Congress. If nothing else, the Supreme Courts' decision to strike down Congressional legislation concerning the Courts' tenure could possibly create enough public backlash to make a constitutional convention bid plausible.

Levinson's depiction of the Court is somewhat reminiscent of Brutus' early protests. Brutus' greatest fear was that the Court would usurp the judicial powers of the states (Anti-Fed #1) and become unaccountable for their judgments. Perhaps, if alive, even the skeptical Brutus would be surprised by a judiciary that not only has the power to reverse state law, but also challenge Executive actions and overturn Congressional legislation. Perhaps more surprising, as Levinson clearly decries, would be the Courts' ability to declare partisan judgment for an infinite amount of time, and gerrymander the future result of their successor. Not only does Levinson's study raise strong ethical questions, it also raises concerns that the founding fathers may have created exactly what they didn't want: a monarchy, albeit a political one, in the judiciary.

The United States Constitution was drafted in 1787, and was ratified by Rhode Island - the last of the original 13 states to ratify - on May 29, 1789. Since ratification it has functioned as the basic organic law of the United State of America. That it was less than perfect, as originally written is not at issue. It has been amended 27 times. But to argue that it is a dysfunctional charter, unfit to serve as the organic governing charter of a 21st century democracy will, to some seem to be political blasphemy.

Sanford Levinson, a lawyer, constitutional law scholar, and law professor, makes compelling arguments that the United States Constitution is, in fact, dysfunctional and is "radically defective". That in time, because of organic defects in the Constitution a political train wreck will likely happen. He suggests that American people should be given the opportunity to cause a convention to meet and draft a new constitutional.

It is not practical to catalog all of the defects he finds in the Constitution. Suffice it to note, that every four years, we run the risk of a presidential election, being thrown into the House of Representatives, because no candidate gets a majority of the electoral votes. If this happens, each state, regardless of population will have just one vote. It has happened once, and we have come close to having it happen again a number of times. Under the constitution, each state - regardless of population - has two senators. California has 70 times the population of Wyoming. Yet Wyoming has two senators, and California has only two senators. Is this fair? Is it the way the majority of Americans, if they had a choice would write the Constitution, today? The executive power of the government is vested in a president who serves for a fixed four year term. No matter how low a president's approval ratings may fall, he/she continues to control all of the executive powers of the government. In a parliamentary system, when the government falls out of favor, it is changed, without delay, but in our system power languishes in "lame ducks" for months, maybe years. The book is an informative read, and raises questions that cry out for public discussion.