ACSBlog: The Blog of the American Constitution Society

The online edition of the Harvard Law and Policy Review, the official journal of ACS, has published a five part symposium Professor Sanford Levinson's book Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It). In Levinson's contribution to the symposium, he lays out a "bill of particulars" against the Constitution:

1. Even if you support having a Senate in addition to a House of Representatives, do you support giving Wyoming the same number of votes as California, which has roughly seventy times the population? Can a country ostensibly committed to "one person one vote" justify such a system of political representation in the 21st century?

2. Are you comfortable with an Electoral College that, among other things, has regularly placed in the White House candidates who did not receive a majority of the popular vote? Since World War II alone, that list includes Harry Truman, John F. Kennedy, Richard Nixon, Bill Clinton (twice), and George W. Bush. Whether one admires or disdains these presidents, one can scarcely describe them as "the people's choice" if that term suggests majority support. Moreover, almost all of these elections were close enough that the shifts of relatively few votes in certain states would have created deadlocks in the Electoral College, requiring, under the Twelfth Amendment, the ultimate decision to be made by the House of Representatives. Assuming the existence of the Electoral College in the first place, one might find this reasonably sensible. But can you possibly believe that the crucial votes in the House should be taken a "one state one-vote" basis? There is no defense for Vermont's Peter Welch, good Democrat that he is, for having an equal say in such a momentous decision as the entire thirty-two person (and majority Republican) delegation from Texas, or for Alaska's Don Young being able to offset the fifty-three (and majority Democratic) delegation of representatives from California.

3. Is it appropriate that a president can frustrate the will of a majority of both houses of Congress by vetoing legislation with which he disagrees on purely political grounds? American law professors endlessly obsess about the "countermajoritarian" difficulty allegedly posed by the fact that the Supreme Court has, over our 220-year history, invalidated approximately 165 federal laws.11 Presidents, on the other hand, have vetoed 2,501 laws, many of them of great import.12 Of course, the threat of impending veto directly shapes more ongoing legislative battles than does the possibility that a court will overturn legislation at some indefinite point in the future. In any event, anyone who expects great things from the now-Democratic Congress should be aware that a fire-breathing dragon can emerge at any moment from the White House and negate any legislation that the Democrats can pass.

4. Is it a desirable feature of the Constitution that the impeachment clause enables us to rid ourselves of a criminal president, but leaves us at the tender mercies of an incompetent one until the conclusion of his or her fixed term of office? Might we not have something valuable to learn from the great majority of countries that have some mechanism by which sufficient loss of confidence in the nation's primary political leader can lead to the termination of his or her tenure in office?

5. Does it make sense that an incumbent defeated in a national election maintains the presidency for a full ten weeks beyond election day, fully capable of making policy decisions that may drastically effect the future of the United States? We the People recognized that the original March 4 inauguration day disserved the nation, and we added the Twentieth Amendment to the Constitution. But January 20, both literally and metaphorically, is far closer to March 4 than it is to the first Tuesday in November. One might contrast our approach with Great Britain's, where a new prime minister literally replaces a defeated incumbent the very next day. One might, incidentally, ask similar questions about "lame-duck" Congresses, including the discredited Republican Congress that will meet one last time in November-December 2006.

6. Do you really want justices on the Supreme Court to serve up to four decades and, among other things, to be able to time their resignations to mesh with their own political preferences? Almost no other country has genuine life tenure. Most have mandated retirement ages, and many countries have specific terms of service.13

7. Do you support the ability of thirteen legislative houses in as many states to block constitutional amendments desired by the overwhelming majority of Americans and, potentially, by eighty-six out of the ninety-nine legislative houses in the American states?

These questions are largely rhetorical. If and only if you answer affirmatively to all of them are you an unequivocally proud supporter of our Constitution; in that event, you should without hesitation cast a vote in a national referendum to retain it. If, however, you share my own negative response to all, or even some, of the issues I highlight, you recognize that ours is a distinctly imperfect Constitution and that we should, as Washington and other luminaries suggested, spend less time celebrating our Constitution and more time asking if it is indeed serving us well.

Law Professors Frank Michelman, Mark Tushnet, Adrian Vermeule and Robin West each provide responses.