TANIA GARCIA-SOLIS—Professor Sanford Levinson of the University of Texas at Austin School of Law began writing about a then-new Constitutional Convention forty years ago. Originally, the idea was a bit of a lark, a fun intellectual exercise imagining what a modern Convention might look like. But over the years, Levinson has come to seriously advocate for a Convention to revise the U.S. Constitution.
Why Is a New Convention Needed?
The Constitution is central to our modern political crisis. The problem isn’t just people ignoring the Constitution or pushing the envelope in interpretation. Electoral problems are a perfect example. Campaign finance corrupts the American political process but is perfectly legal. Overturning Citizens United or even limiting its holding entirely depends on the Supreme Court. Similarly, electing the House of Representatives through single-member districts facilitates purposeful gerrymandering and inadvertent voter suppression for minorities. Republicans in New York City and Democrats in rural Texas are largely unheard. The single-member district system isn’t even the product of the Constitution or related case law, but essentially controls how the Constitution’s electoral mandate is carried out. Either of these problems could theoretically be addressed through the “normal” amendment process, where three-fourths of state legislatures vote on an amendment and two-thirds of each house in Congress ratify it. But fixing problems with the democratic process this way is virtually impossible because members of Congress are not incentivized to ratify amendments that damage their financiers and change games they already won. Levinson argues a National Convention is necessary to effect reform for our electoral process.
While many state constitutions have some procedure for direct democracy, even to alter their constitutions, that is not an option at the federal level. This was by design. In Federalist No. 63, James Madison proudly extolled the United States Constitution’s lack of direct democracy. Popular rule was viewed as antiquated and dangerous, best left back in Athens. The constitution is named for “We the people,” but “we” have no role in making any decisions whatsoever. The Supreme Court has not provided any meaningful guidance for running the American political system in decades. Their precedent of “one person, one vote” rings hollow. In reality, people without votes are represented by our elected officials, and those with the right to vote can be easily disenfranchised by gerrymandering. The Court has not expounded any theory on how to think about representative democracy in response.
The American Legal Academy’s Role
Drawing on his recently published law review article, “Comments by a Cantankerous Crank on “Constitutional Theory,” the Supreme Court, and the Legal Academy,” Levinson discusses the American legal academy’s problematic definition of constitutional law as a subject: Supreme Court opinions and dicta. While true on some level, this perspective turns the subject into a game of “Simon Says.” Lawyers ape these key words in Supreme Court opinions as if they offer perfect guidance on constitutional issues. But majority opinions are often confusing because they are borne out of compromises.
Constitutional law as a subject ignores that we live in a country with fifty-one constitutions, not just one. Every state’s constitution is interestingly different from our national one. Florida, for example, does not have a unitary executive, so state executives, like the Attorney General, are elected instead of appointed by the governor. Forty-five states entirely reject the unitary executive. While the U.S. Constitution is the most important, academia fails to educate students on the remaining fifty—which show there are other ways to approach American democracy. What might be the most important parts of the U.S. Constitution are never taught at all.
The “Constitution of conversation” consists of the clauses that are frequent subjects of litigation. Adversary parties and the judiciary spill much ink on these hot topics: guns, abortions, First Amendment rights, and the like. The “Constitution of settlement” is just as important. It consists of the structural portions of the Constitution that dictate how we govern democracy. Americans largely don’t approve of their elected officials, who are put into power by the Constitution’s electoral processes. These representatives then follow the Constitution’s structure to legislate on key issues—healthcare, climate change, immigration, and spending—that keep many Americans up at night. Constitutional law as a subject is reluctant to look at how the democratic sausage is made. To illustrate, a federal anti-lynching law wasn’t passed until 2022, despite being proposed back in 1918 because the then-Senate was controlled by Southern Senators and white supremacists could prevent the bill from even coming to a vote. The Senatorial voting rules that allowed this are largely unexamined in constitutional academia.
Another harsh reality: the presidential veto effectively creates a tricameral system. Is it not enough for a law to pass both houses by a majority? Is it necessarily fair that the president can act like a third arm of Congress? Many state constitutions contain anti-authoritarian measures to limit the gubernatorial veto, suggesting the veto isn’t necessarily a perfect democratic tool. Because the presidential veto is black-letter text in the Constitution, it is not subject to litigation and thus goes largely unexamined by academic constitutional law.
Why We Have Complex Feelings on the U.S. Constitution
The double bind is a useful construct to examine how Levinson, other legal scholars and practitioners, and everyday citizens feel about the Constitution. The term refers to a phenomenon where an individual feels conflicting emotions about people or institutions important to them. It was originally coined by psychologists seventy years ago to describe both the strong love and hate a child can feel towards parents, which often stemmed from conflicting demands from the parents creating psychological confusion. Levinson himself often feels the same mix of love and hate towards the Constitution. He loves the Preamble for eloquently setting out the lofty goals of American democracy. The First Amendment makes him proud. But other features can be dangerous for our future. Congress won’t do anything about climate change, healthcare, and those other issues that most Americans worry about. Why? The Constitution is designed to make it difficult for Congress to act.
In Federalist Paper No. 49, James Madison said it is important to venerate the Constitution. This was a counter to Thomas Jefferson’s proposal for regular reevaluation of the Constitution to ensure the government was for the living and not ruled by the dead. Madison, and the majority of the Framers, it seems, felt that it would lead to instability and chose to create a more fixed document. Levinson is clear that he isn’t bashing the Founder’s choices, they were brilliant politicians making difficult compromises necessary to ensure there was a Constitution at all. They engaged in “reflection and choice,” as Alexander Hamilton put it in Federalist Paper No. 1, to meet the needs of the people. Today, constitutional academia spends too much time venerating the Constitution and fails to engage in serious debate, “reflection and choice,” to meet the needs of citizens today. We can no longer ignore the structural problems of the Constitution. The future depends on it.
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