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Campos: An outdated Constitution

Published November 6, 2007 at midnight

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Sandy Levinson has fallen out of love. The University of Texas law professor describes the history of a relationship gone bad in his book, Our Undemocratic Constitution.

Levinson, like Americans in general and lawyers in particular, was taught from an early age to revere the U.S. Constitution. As a legal academic, he spent much of his career studying what are considered the sexy issues in constitutional law: matters involving freedom of speech and religion, questions of racial discrimination, and so forth.

But Levinson is also trained as a political scientist, and, over time, this part of his background helped push him toward asking critical questions about what might be called the invisible constitution: the structural features of the document that lawyers and law professors tend to take for granted.

And, the more he did so, the more he began to see things that made him wonder whether his lifelong devotion to the document made sense.

Levinson's argument is historically rich and theoretically sophisticated, but here are a few of his key points in highly simplified form.

First, the structure of the national legislature is wildly undemocratic. What exactly is the justification for, in this the Year of Our Lord 2007, giving a senator from Wyoming approximately 70 times more power per voter represented than one from California?

In an era in which almost all of the most important political decisions are made at the national rather than the state level, the structure of the Senate essentially gives senators from small states a license to steal federal tax dollars for the benefit of their sparsely populated fiefdoms.

And, as Levinson the political scientist demonstrates, they are exceptionally good at doing so. Hence we get $50 million bridges to nowhere, economically and environmentally insane subsidies for various farming and ranching interests, and so forth.

Second, the structure of the Constitution makes it very difficult to undertake any kind of serious legislative reform. Not only do both houses of Congress have to agree to exactly the same statutory provisions for a bill to become law (a requirement that, as Levinson points out, isn't found in many bicameral legislative systems) but in addition the Constitution gives one person - the president - the power to veto legislation for any reason he (soon to be she) likes.

These extremely high barriers to legislative action can be defended on the basis of various ideological preferences (most notably the view that, in general, only rich and powerful people should be able to get laws passed). But Levinson's point is that hardly anyone even bothers, because the structural features of the Constitution are treated as if they were equivalent to the laws of thermodynamics, rather than products of political choices made 220 years ago, and that are ripe for revisiting, given that the world has changed somewhat since the 18th century.

Third, Levinson points out that the Constitution gives us no way to get rid of an incompetent president, prior to the next election. This, under present circumstances, seems like an especially unfortunate oversight. He suggests the president should be subject to removal at any time, on the basis of a two-thirds vote of the legislature (he's careful to point out that such a procedure needs to be structured so as to allow the president's party to retain the office for the rest of the president's term).

Levinson emphasizes that he isn't engaging in Founder-bashing. Yet even if one assumes that the men who wrote and ratified the Constitution were persons of exceptional wisdom and foresight, they were nevertheless men, not gods.

Indeed, it's in the best American political tradition to allow ourselves to ask whether some of our most basic political arrangements need to be overthrown.

Paul Campos is a professor of law at the University of Colorado. He can be reached at .

Comments

  • November 19, 2007

    10:36 a.m.

    Suggest removal

    Roader writes:

    Perhaps looking at the situation a little differently might lead to the conclusion that the Constitution is not outdated. Rather, we've moved away from the concept of a federal government written by the Framers of the Constitution and moved toward the concept of a national government.

    This is not a new problem. Although the Tenth Amendment specifies:

    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

    ...there has always been a power struggle between the states and the federal government. Alexander Hamilton was a proponent of a powerful national government. So was Lincoln. But it wasn't until the Progressive movement at the beginning of last century that national policies really gained power at the expense of state power. The creation of the Interstate Commerce Commission, Federal Trade Commission, and Federal Reserve System by Teddy Roosevelt and Woodrow Wilson expanded national government power exponentially.

    But the real kicker was the New Deal, when Franklin Roosevelt created all kinds of national power grabs with the creation of countless programs that interfered in almost every facet of citizens' lives. Many of these programs were rightly deemed unconstitutional by the Supreme Court. Roosevelt's solution was to threaten to pack the Supreme Court with his cronies. The Supreme Court backed down on that threat.

    So, the question remains. Is the Constitution outdated because we now have, effectively, a national government? Or is the Constitution still perfectly adequate for the Framers’ intent of strong states rights coupled with limited federal power?

    The Framers were neither stupid nor shortsighted. The system they created allowed states to govern themselves as they saw fit. The debate on nationalized health care is a perfect example. Under a federal system, states are free to experiment with collectivized health care financing if they choose. If Massachusetts wants cradle-to-grave collectivized health care, their legislature is free to create such a system and tax their citizens to pay for it. If Wyoming chooses to provide no government financial assistance for health care, instead allowing private companies and charitable institutions to provide health care, they're free to do so. Whichever state is more successful will garner more citizens and, ultimately, become a more desirable place to live. In nationalizing health care, or any service aside from the constitutionally mandated federal powers, we are one step closer to a national government.

    The Constitution isn't outdated. The federal government has grabbed too much power. And both major political parties want to hang on to that power. No wonder Ron Paul has garnered so much support.