Readers who think they know a lot about the Constitution will find out how much more they have to learn from this book. Law Professor Sanford Levinson examines parts of the document few people pay attention to, and he compares the Constitution to state constitutions and to the constitutions in other countries.
In our era of political polarization, one thing that unites Americans across the spectrum is the perception that the federal government is profoundly dysfunctional. Only about one in ten Americans approve of the job Congress is doing, and trust in government is at historic lows. Levinson has a simple thesis, namely that government failure is caused in part by the constitutional structure of government, at both the federal and state levels, and that as much attention should be paid to the 50 state documents that also make up American constitutionalism.
Americans hold the Constitution in high regard, so criticizing it is considered akin to radicalism if not disloyalty. Most would-be reformers of the political system shy away from trying to change the structure. Levinson recognizes the towering achievement the Constitution represented in the 18th century, but he also believes it needs to be updated to meet current conditions, which are quite different from those of 1787.
Levinson agrees that the political culture of a society matters in how well government functions. Yet political behavior happens within the formal institutional structures as defined by the Constitution. Political scientist Robert Dahl describes it well: “The biggest obstacles to energetic, coherent action are systemic. Our ungainly eighteenth-century legislative mechanism, drowning in twenty-first century campaign cash, is shot through with veto points…That basic structure has its pluses as well as its minuses, of course. Anyway, we’re stuck with it.”
Levinson agrees with all by the last sentence in the Dahl quote, asking Americans of 2015 “whether we continue to share the assumptions that underlay the Constitution in 1787? If not, why do we remain so devoted to a Constitution based on them?” While not criticizing the Framers, Levinson does wonder why Americans today refuse to ask the probing questions the Framers were willing to ask about the adequacy of their own institutions.
Levinson’s secondary thesis is that attention should be paid to the other 50 constitutions found in the states. Those constitutions have been amended far more frequently than the U.S. Constitution, and many have been replaced over the years with new documents to meet the challenges of a new time. There is “something to learn from the willingness of the states to reflect on the adequacy of their existing constitutions and to do something about perceived deficiencies, in contrast to the all too rarely reflected-upon U.S. Constitution.”
A look at how state constitutions differ from the US Constitution informs about what changes would be made to the latter if and when the opportunity to update it ever arises:
• All of the states have constitutions providing for more democracy than the Constitution. “The US Constitution is, by a far measure, the most undemocratic constitution among the fifty-one constitutions that exemplify constitutionalism in America.” The Framers were deeply suspicious of direct democracy, but this attitude “has become a distinctly minority opinion not only in the contemporary Unites States but also in the world at large…Is is fair to describe the Constitution as hopelessly anachronistic in its disregard of any role for direct decision making by whoever constitutes ‘We the People?’”
• No state has a long a transition period between an election and inauguration. The President is sworn in on Jan. 20, but states all require swearing in the winners closer to election day.
• No state bans naturalized citizens from becoming governor, unlike the Constitution that bans naturalized citizens from serving as president.
• Forty-eight states have judicial terms for a fixed number of years, or retirement at a set age, as opposed to lifetime tenure among federal judges.
• Unlike the Preamble to the Constitution, all of the preambles to state constitutions invoke the deity.
• All but three States have lower minimum age requirements for legislators than the Constitution. In Illinois, 21 is the minimum age. Two states set the age at 18 (Ohio and Wisconsin).
• No State requires natural-born citizenship for its highest offices, nor does any state distinguish between citizens on the basis of duration of their citizenship (re eligibility to serve) the way the Constitution does.
• Every State except Delaware either allows or requires popular ratification of constitutional amendments, while most states have some opportunity for popular initiative and referendum.
• Thirty-two State constitutions require balanced budgets, unlike the U.S. Constitution.
• All states choose their chief executives by direct popular election.
• Fourteen states permit voters to decide whether to call a new state Con-Con.
• Most governors have some form of line-item veto, particularly in spending bills.
• Many states require their governors to share the pardoning power with other officials, while six states place the power entirely in a pardoning board where the governor plays no role, and 37 States prohibit pre-conviction pardons.
• In 48 states, governors do not appoint Attorneys General and cannot fire them.
In sum, “the states have dramatically rejected the design preferences reflected in the 1787 Constitution.”
The Constitution was the result of compromises. James Madison argued that to get to agreement at the Constitutional Convention, some lesser evils must be accepted, such as the equal representation of all states in the Senate. Yet evils they remain, writes Levinson. At the time of the Great Compromise on Senate representation, the population ratio of the most populous to the least populous state was 11.5 to 1. Today that ratio is 70 to 1. Regardless of whether a particular compromise was defensible at the time it was made, Levinson contends it is a mistake in “feeling ourselves indelibly wedded to such institutional structures long after their rationales have ceased to make any sense.”
Levinson discusses a variety of other Constitutional provisions that made more sense in 1787 than they do in 2015. He favors a Constitutional Convention to modernize the document. He would select the delegates using the Athenian model. An important feature of Athenian democracy was the selection of public decision-makers by lottery. There were no elections, no campaigns, no mudslinging, and no campaign donations; selection was by chance. Levinson realizes the odds are steep against another Convention, but there are calls for a Convention from voices on the political right and left. The odds were also steep against the Founding Fathers who recognized the Articles of Confederation were inadequate.
This book is full of fascinating insights. Those who like to study the Constitution will enjoy it. ###
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