An Imperfect Union? Interview with Author of “The Undemocratic Constitution”

Editor’s note: This article was initially published in The Daily Gazette, Swarthmore’s online, daily newspaper founded in Fall 1996. As of Fall 2018, the DG has merged with The Phoenix. See the about page to read more about the DG.

by the University of Texas

Dr. Sanford Levinson, the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas, is the author of over 250 articles in law journals and popular publications, and is considered among America’s foremost constitutional scholars. The lecture was sponsored by the Political Science Department and The President’s Office.

Gazette: Today you’re going to give a lecture about your latest book, The Undemocratic Constitution. The book discusses where the Constitution goes wrong and how the problems with the document can be corrected.

SL: Right.

Gazette: So what arguments in the book will you be discussing tonight?

SL: Well, I’ll try not to repeat what is in the book. But in the book I lay out the particulars in regard to the problems with representation in the Senate, and how the principal of equality of the states means vast inequalities in terms of representation; I attacked the electoral college for what most people find for obvious reason; I’m not a big fan of life tenure for Supreme Court judges, though that’s sort of a minor issue; I think the President’s veto is surprisingly vulnerable if we’re committed to some notion of majority rule; I think that the amendment clause- article 5- makes the United States Constitution the hardest to amend in the entire world, which has all sorts of terrible consequences.

Gazette: What are some of these terrible consequences?

SL: It means ultimately that people almost literally don’t want to think about Constitutional change because it seems impossible. This infantilizes us and leads us to want to change the subject. And I think it distorts our politics in some sense. Depending on whether you’re on the left or the right you might have different sorts of issues, but if you’re frustrated with the liberal system’s ability to respond adequately to, say, the medical care mess, the temptation is to talk about failures in leadership, or partisan acrimony, stuff like that. There may be some basis to some of that, especially to partisan acrimony. But the basic explanation for our failures is the structure of the system, which is quite independent of the skills or lack of skills of whoever is President, or the degree of partisan acrimony. The Senate really has served historically, with some exceptions, as the graveyard for reform.

Gazette: I think most people would be surprised to hear the Senate referred to as “the graveyard of reform.” How has the Senate served as a “graveyard,” and why is that the fault of the Constitution?

SL: If you want to understand why we have a terrible agricultural policy and why it is almost unthinkable that we’ll be able to do anything about it, it’s because the agricultural states in the upper-Midwest have a relatively small percentage of the population, but have a significant percentage of the votes in the Senate. Small state Senators can be single issue or double-issue more than large state Senators. It may be that someone like Rick Santorum could be particularly zealous over the issue of abortion, but even Santorum can’t have that as his only issue, whereas if you’re from the upper-Midwest, your main issue is going to be subsidies for farmers.

Gazette: And this is what your discussion will focus on this evening?

SL: My discussion this evening will be a little more general. One of the things I want to do, for example, is to revive, or encourage us to take more seriously, the preamble. The preamble serves as a basic assessment of the rest of the Constitution; the point of the rest of the Constitution is to carry out the preamble, If you come to the conclusion that the Constitution works against the statute of justice, against assuring domestic tranquility, against the ability to secure a common defense, etc. I think you have to ask yourself then, why would you have voted for what comes after the preamble? The only point of everything that comes after is to achieve the goals of the preamble. So I’m going to be talking a lot about the preamble and what really happens if you do give the preamble pride of place, and the paradox involved when lawyers and judges do not end up taking the preamble very seriously. The other thing I’ll explore is whether we should be celebrating the constitution that came out of Philadelphia that day.

Gazette: Talking about paradoxes- the Constitution Day speaker doesn’t think we should necessarily celebrate the Constitution.

SL: Well, we shouldn’t celebrate, obviously, slavery. But perhaps we can celebrate a certain disposition of the framers to do what they thought was necessary in order to achieve a more perfect union? However, kind of like with the preamble, there is a double-edge in praising the founders for this, because on the one hand I would like to praise them for having the courage of their convictions, but on the other, in fulfilling their convictions they behaved with ruthless infidelity to the Articles of Confederation and arguably towards Congress. And if you believe that fidelity to law and fidelity to the Constitution is the most important value then the Framers are a very mixed sort of illustration. The question is, “Do we honor them or do we condemn them?”, or, as is most often the case, “Do we ignore that aspect of Constitution Day altogether?”

Gazette: And if we decide not to ignore that aspect of Constitution Day, but seek to understand the context of the Constitution within history, and with the full understanding that the Framers were violating the Articles when they convened, then what do we get?

SL: By and large, I don’t engage in founder bashing. I’m willing to defend, for sake of argument, everything the Framers did, including their allowance of slavery. Because the alternative would have been no Constitution. Now I think there’s a reasonable argument to be made that we would have been better off with no Constitution. But still, if you believe that the Constitution is important because otherwise we would have been vulnerable to military attack, then you can claim that the Founders did what was necessary. The same way in the 1940’s we allied with Stalin to defeat Hitler. It’s not that we praise Stalin, but we say, “sometimes you got to do what you got to do.” So I’m very willing to say that everything the Founders did in 1787 they did because they thought we had to. It is not my view that compromise is always dreadful. The real question is why we should remain today feeling committed to revere the compromises that were made on ruthless political grounds in 1787. What I’m really concerned about is thinking about the Constitution in 2009.

Gazette: And that is a question worth asking on Constitution Day.

SL: Exactly.

Gazette: Thanks so much for speaking with us.

SL: You’re very welcome.

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