Debate: Is the US Constitution Broken?

Source: The New Yorker, Dec 9^th 2013

Introduction

If there is a single point of consensus in this heated political moment, it’s that everyone loves the Constitution. “Conservative or liberal, we are all constitutionalists,” Barack Obama wrote, in “The Audacity of Hope.” Ted Cruz, the junior senator from Texas, who emerged as a principal antagonist of the President’s during the government shutdown, has often said much the same thing. The Founding Fathers, Cruz said, “fought and bled for freedom and then crafted the most miraculous political document ever conceived, our Constitution.”

These homages are more than rhetorical tropes. Most politicians consider the validity of the Constitution off limits as a subject for debate. The Constitution, and the structure of government that it established, provides the backdrop, but never the subject, for every controversy. Obama, who taught constitutional law for more than a decade at the University of Chicago Law School, wrote,

“The outlines of Madison’s constitutional architecture are so familiar that even schoolchildren can recite them: not only rule of law and representative government, not just a bill of rights, but also the separation of the national government into three coequal branches, a bicameral Congress, and a concept of federalism that preserved authority in state governments, all of it designed to diffuse power, check factions, balance interests, and prevent tyranny by either the few or the many.”

It’s often noted that the United States is governed by the world’s oldest written constitution that is still in use. Thomas Jefferson believed that any constitution should expire after nineteen years: “If it be enforced longer, it is an act of force and not of right.”

Outside Washington, discontent with the founding document is bipartisan and widespread. In many ways, the contemporary debate reflects the framers’ arguments, more than two centuries ago. How insulated should elected officials be from the demands of the people? How should power be divided among the federal and the state governments? What rights of the individual must be protected against the claims of the government? The Constitution offers only contingent answers to these questions. Indeed, in recent years particularly, it’s become clear that politicians and voters, as well as judges, can play crucial roles in defining the contemporary meaning of the Constitution. The critics have the advantage of having seen the Constitution in action. On the left and the right, they are asking whether the pervasive dysfunction in Washington is in spite of the Constitution or because of it.

The Case for a Broken Constitution

1987, Philadelphia hosted the national celebration of the two-hundredth anniversary of the signing of the Constitution. There were parades and an exhibit called “Miracle at Philadelphia.” To foster viewer participation, the exhibit culminated with two scrolls, each bearing a question: first, “Will you sign this Constitution?” And, second, “If you had been in Independence Hall on September 17, 1787, would you have endorsed this Constitution?” Sanford Levinson, a professor of law at the University of Texas at Austin, made his way through the exhibit and struggled with the decision of whether to add his name to the scrolls.

“I thought long and hard,” he said. “If you look at the Constitution, you see that it was drafted by people who were not little-‘d’ democrats.” This was most evident in what Levinson has called “the brooding omnipresence of American history—race and, more precisely, slavery.” Implicitly but unmistakably, the 1787 Constitution allowed for the continuation of slavery. Women could not vote; in many places, only property owners could. The Bill of Rights, with its explicit defense of individual rights, did not become part of the Constitution until 1791.

Still, Levinson signed. He recalled that Frederick Douglass, the great abolitionist, ultimately supported the Constitution, with all its flaws, because he saw in it the “potential to mount a critique of slavery, and much else, from within.” Levinson remembered, too, the words of Representative Barbara Jordan, the African-American from Texas, who served on the House Judiciary Committee during its impeachment investigation of Richard Nixon, in 1974. “My faith in the Constitution is whole; it is complete; it is total,” Jordan said. Levinson concluded, “If it was good enough for them, it was good enough for me.

In 2003, Levinson returned to Philadelphia for the opening of the National Constitution Center.

This time, Levinson didn’t sign. “Between 1987 and 2003, I became less concerned about inputs and more concerned about the outputs,” he told me. “In 1987, I thought a lot about the procedures that were used to set up the Constitution—whether they were democratic or not. At that time, I used to think, Well, what’s the difference if it works? But I came to see that the system just does not work anymore. The outputs fail. It’s not a government that can solve problems.” Levinson elaborated on his misgivings in a 2006 book, “Our Undemocratic Constitution,” which laid out a comprehensive critique.

Levinson wrote:

“The constitution places almost insurmountable barriers in the way of any acceptable notion of democracy. The constitution is both insufficiently democratic, in a country that professes to believe in democracy, and significantly dysfunctional, in terms of the quality of government that we receive.” Sanford Levinson

In the past decade, Levinson has become the unofficial spokesman for progressive critics of the Constitution.

The core challenge of the Constitutional Convention was to persuade the representatives of the states to surrender some of the power they possessed under the Articles of Confederation, which had produced a weak and ineffectual national government. The delegates devoted most of their attention to the rights of states, not of individuals. This led to a debate about just how democratic the new government would be. “The framers were motivated by both democracy and élitism,” Akhil Reed Amar, a professor at Yale Law School and the author of “America’s Constitution: A Biography” (2005), told me. “The framers didn’t trust ordinary people to make every decision. So you had Congress made up of a very small number of people. And their terms were longer than their counterparts in the state legislatures under the Articles, so they had some freedom to act outside of public pressure.”

Both struggles—state vs. federal power, democracy vs. élitism—came together in the fight over the creation of the Senate. Federalists like Virginia’s James Madison and New York’s Alexander Hamilton, who were from larger states, insisted that the government existed to serve people, not the artificial entities known as states. Hamilton went so far as to consider the abolition of states altogether, with all power to be vested in the national government. Less radically, Madison pressed for a legislature based solely on proportional representation; the number of legislators would reflect the number of people in the state, not the state itself. As Hamilton wrote later, in Federalist No. 22:

“Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail”. Federalist No. 22

Several times during the summer of 1787, the Convention nearly collapsed as the small states refused to yield the powers they enjoyed under the Articles. Prodded by Benjamin Franklin, the éminence grise of the Convention, Connecticut’s delegates, led by Roger Sherman, came up with the compromise that saved the young Republic. There would be two bodies in Congress—one based on proportional representation (the House of Representatives) and the other based on states (the Senate). “As an additional sop to the states, the Constitution said that senators would be chosen by state legislators, not voters,” Amar said. “That was designed to make sure that the federal government would be responsive to the needs of the states.”

In creating the national legislature, the delegates had to address the issue of slavery. Although slaves weren’t citizens and couldn’t vote, the Southern states wanted them to be included in the calculation of the over-all population, in order to boost the region’s representation in the House. The North thought that the slaves should not count at all. In a way, the negotiated solution reflected the shameful reality that slaves in the United States were judged less than fully human. The standoff led to a notorious compromise: for purposes of apportioning seats in the House, each slave would count as three-fifths of a person. As the University of Pennsylvania historian Richard Beeman noted, in “Plain, Honest Men,” his 2009 account of the Convention, the debate over the three-fifths rule took place with “a near-total absence of anything resembling a moral dimension.”

Progressive critics of the Constitution object to the compromises that favored the states’ rights and the élitist side of the debate. “The process that produced the Senate is understandable,” Levinson told me, “but the end result is indefensible.” The distortion created by small states having an equal number of senators has dramatically worsened over the centuries. In 1787, when the Constitution was drafted, the largest state, Virginia, had about eleven times as many people as the smallest, Delaware. Today, California has roughly seventy times more people than Wyoming. To Levinson, the creation of the Senate was the original sin of the Constitution. The most obvious offense was that the power reserved to the slave states insured the survival of slavery. It took the Civil War to end it, and the Thirteenth, Fourteenth, and Fifteenth Amendments to overrule the three-fifths compromise.

The Senate continued to reflect its anti-democratic structure long after the Civil War. Through most of its history, it has been a graveyard for legislation, even after the Seventeenth Amendment, ratified in 1913, established the direct election of senators. Its primary function has been to stop bills, which are often supported by a popularly elected President and House members, from becoming law. In theory, the senatorial veto is available to both political parties, but a Senate in which less populated states wield disproportionate influence is fundamentally conservative in nature. In simple terms, in a world where progressives want government to change things and conservatives favor the status quo, a legislative body that makes legislating difficult will be a conservative force. The Senate blocked ratification of the League of Nations treaty after the First World War, civil-rights laws after the Second World War, and the Clinton health-care reform in the nineteen-nineties. “You’ve basically always had two parties in the country where one wants change and the other is more supportive of the status quo,” Noah Feldman, a professor at Harvard Law School, said. “The Senate is an institution that stops change. That’s how it’s designed, and that is always going to hurt that party that wants change, the activist party. Today, that’s the Democrats.”

This, in a way, is the story of the Obama Administration. Obama was elected twice, both times by comfortable margins in the popular vote and by landslides in the electoral college. Though he will spend eight years in office, his tenure as the actual leader of the national government lasted about a year and a half. On July 7, 2009, Al Franken was seated, after a recount, as the sixtieth Democratic senator. (Sixty votes are needed to overcome a filibuster.) Between that time and the end of 2010, Obama pushed through Congress health-care reform (the Affordable Care Act), financial reform (the Dodd-Frank legislation), a bailout of the automobile industry, a repeal of “don’t ask, don’t tell” in the military, and the ratification of an arms-control treaty with Russia. The President also won the confirmation of two Justices to the Supreme Court. In the midterm elections of 2010, Obama’s party lost control of the House and fell below the filibuster threshold in the Senate.

Since then, Obama has failed to accomplish almost anything in Congress. Following his second Inauguration, the President embraced a gun-control bill that had universal background checks as its centerpiece. Even though polls showed that roughly ninety per cent of the public supported the idea, the legislation died in the Senate. (The less populated, more rural states are the ones most fiercely opposed to gun control.) A similarly large percentage of the public supports comprehensive immigration reform. That bill passed in the Senate but appears doomed in the House. Obama even failed to persuade Congress to fulfill its basic obligation to pay the bills and keep the government open. The shutdown, which lasted sixteen days, ended in a ceasefire, but the threat of closure and default will return early next year.

Levinson and his allies believe that the Constitution mandated a kind of institutional paralysis that allowed Obama to do too little. Another leading revisionist, arguably more influential than Levinson or any other law professor, draws the opposite conclusion: the Constitution allowed Obama to get away with too much.

The Argument Against

Levin’s prominence is bound up with the Tea Party movement. When Republicans took control of the House in 2011, their first act was to stage a public reading of the Constitution (except the parts about slavery). Tea Party Republicans speak obsessively about how contemporary politicians, especially President Obama, violate the strictures of the Constitution. Levin assails the Affordable Care Act as the epitome of all that is wrong with modern American government. When a lower court struck down the law, in 2011, Levin said, “It is a great day for the rule of law and the citizenry.” (The law was later upheld by the Supreme Court.)

Levin’s constitutionalism has a distinctly populist edge. For him and the Tea Party as a whole, the meaning of the Constitution can be understood by any ordinary citizen, not just a small priesthood of lawyers and judges. As Theda Skocpol and Vanessa Williamson wrote, in “The Tea Party and the Remaking of Republican Conservatism” (2012), “A persistent refrain in Tea Party circles is the scorn for politicians who fail to show suitable reverence for, and detailed mastery of, America’s founding documents”—documents that “are immediately accessible and obviously clear [and] can be understood by each person without the aid of expertise of intermediaries.”

Levin has proposed a series of Liberty Amendments, most of which reflect well-known aspects of the Tea Party agenda.

He wants to set term limits on members of Congress, limit federal spending and taxes, and allow three-fifths of the states to overrule any federal legislation. He also wants to repeal the Seventeenth Amendment and return the election of senators to state legislators, rather than to voters. “The original purpose of the Senate was to give state legislators a say in the national government, and that’s gone,” Levin told me. “State legislators are closer to the people, and they should have more of a voice in how the federal government runs.” In any case, “The Senate is not supposed to be democratic. The framers did not want the popular vote to control everything. I do not understand a mind-set with some of these professors who, on the one hand, seem to argue for the greatest expansion of democracy possible and, on the other, rely on the smallest majority possible—five Justices on the Supreme Court. Do you trust the plebiscite mentality or the judicial-supremacy mentality?”

Levin has a pre-Civil War conception of federal power, roughly akin to that of the great states’ rights advocate of the era, John C. Calhoun. Above all, Levin would like to curb the power of the federal government. The Supreme Court would exist mostly to police the federal government, keeping it from overstepping its authority. (Liberals generally embrace a vigorous role for the Supreme Court as a defender of individual rights against the intrusions of the state.) Levin’s ideas are shared well beyond the realm of talk radio. Steven Calabresi, a professor of law at Northwestern University and a co-founder of the Federalist Society, a conservative lawyers’ group, proposed to me that half the Justices on the Supreme Court be selected by the current method of Presidential appointment and Senate confirmation, and the other half by a vote of the fifty state governors. “I would also allow Congress, by a two-thirds vote of both houses, to override Supreme Court decisions in the same way in which it can override Presidential vetoes,” Calabresi said.

Source: The New Yorker Dec 9^th 2013