Washington Post essay
SLevinson at MAIL.LAW.UTEXAS.EDU
Sat Dec 16 14:46:28 PST 2000
I'm taking the liberty of sending all of you a piece that will be in
tomorrow's Washington Post:
I Dissent! The Constitution Got Us Into This Mess
By Sanford Levinson
December 17, 2000
We have crossed the constitutional bridge into the 21st century and
discovered that it is rickety, maybe even falling down. An electoral system
that might have made sense when devised in the late 18th and early 19th
centuries has turned out to be shockingly problematic in this new millennium.
This should come as no surprise. So often, we almost literally idolize the
United States Constitution, treating it with the reverence due a sacred
text. But the Constitution is a most-human product, and therefore an
imperfect document, with flaws and weaknesses that can threaten our
stability at any time. The kind of tottering we've witnessed over the past
few weeks was thoroughly predictable. But warnings that we were heading for
a wreck have generally been either dismissed with a round of constitutional
cheerleading, or met with denial. "It happened before, but it can't happen
again," we say, when reminded of earlier crises. (Remember early 1998, when
no one believed we'd see another impeachment?) Or we take refuge in the
delusory belief that God has the United States in his special care.
Both responses are equally foolish, as we have seen in the post-election
crisis. Our task now is to figure out how much repair is necessary to
prevent a future systemic collapse.
In just this past month, several of the Constitution's "stupidities" have
been revealed. Chief among these is the electoral college. Not only does
this feature make it possible to deny the presidency to the candidate who
wins the popular vote, it also gives a significant advantage to small
states, each of which is guaranteed at least three electoral votes. This
means that a candidate gets significantly more benefit from carrying, say,
Wyoming and the two Dakotas, with a total of nine electoral votes, than New
Mexico, which has roughly the same total population as the three states
combined but only five electoral votes.
The electoral college, and the disproportionate power it gives to small sta!
tes, has rightly been put under the microscope. But a number of other
flawed constitutional features also deserve closer scrutiny and discussion:
How the House would pick a president. This is my choice for the most
dubious feature of the Constitution. It provides that deadlocks over the
choice of president in the electoral college be broken by the U.S. House of
Representatives on a one-state, one-vote basis. Although this hasn't
happened since 1824, when the House picked John Quincy Adams as president
over Andrew Jackson, it loomed as a possibility in 1948 and 1968, when
third-party presidential candidates in those years each won more than 20
votes. Even if you believe that the electoral college is a good idea, and
that the advantage held there by small states is defensible, there is no
defense, in 2000, for allowing Vermont's single representative to offset
the entire 30-member congressional delegation of my home state of Texas in
the instance of a House vote for president.
If the House ever has to select the president--provided we retain the
electoral college and accept its risk of deadlocks--then it should do so on
a one-member, one-vote basis, the theory of representation that the Supreme
Court has endorsed now for almost 40 years. As it happens, if this year's
election had come down to the House's choosing, it probably would not have
mattered which rule we had, since the Republicans both hold a majority of
individual seats and control 29 of the state delegations. Consider the
situation, though, if only half a dozen congressional districts had gone
Democrat instead of Republican, giving the Democrats control of the House.
In that case, if the election had come to the House, Gore--the choice of
the people as well of a majority of the people's representatives--could
have been deprived of the presidency due to the happenstance that the
Republicans control most state delegations.
Life tenure on the Supreme Court. The Supreme Court's role in the
just-ended campaign highlighted the questionable wisdom of lifetime
appointments for Supreme Court justices. One unfortunate consequence of
lifetime tenure is revealed in a recent article in the Wall Street Journal,
which suggested that Chief Justice William Rehnquist and Associate Justice
Sandra Day O'Connor have put off resigning from the court so that their
replacements could be named by a Republican president. There is every
reason to believe that former justice Byron White waited, for the same
purpose, until a Democratic president took office before retiring in 1993.
If the United States followed the practice of many other countries--and
many of the states--in imposing term limits on the justices, then the
opportunity for such partisan behavior would be limited. Moreover, as Emory
University professor David Garrow writes in an article in the current
University of Chicago Law Review, over the years, several justices,
including some in the recent past, have remained on the bench far too long,
even after mental debilities made it impossible for them to serve the
nation well. There is no reason to believe this is true of any current
members of the court, but we should not continue to rely on the judges to
have the self-discipline to set their own retirement dates.
Article V. The clause for enacting amendments is one of the Constitution's
most dubious features, because, as a practical matter, it makes formal
constitutional change exceedingly difficult. The problems posed by Article
V are a primary reason why obvious defects in the constitutional structure,
like those discussed above, have not been addressed, and why more train
wrecks like this year's are possible in the future. Article V provides that
two-thirds of each house of Congress must first agree to propose an
amendment, which then must be ratified by three-fourths of the states.
Winning the "amendment game" and changing the status quo thus requires
triumphing first in both Houses of Congress and then in at least 75 state
legislative chambers (for example, bicameral legislatures in 37 states plus
the unicameral legislature in Nebraska). Winning the game on defense--that
is, preventing formal change--requires only one-third plus one of the votes
in either the House of Representatives (146 votes) or the U.S. Senate (34
votes), or prevailing in at least one house of 13 state legislatures.
Having been forewarned by last month's events, responsible political
leaders have a duty to promote a serious analysis of the quality of our
political infrastructure and to suggest necessary changes that will either
prevent, or at least lower the cost of, future problems.
There is an alternative to constitutional amendments. It is drawn from
Article V itself: Two-thirds of the states can petition Congress to call a
constitutional convention, a gathering of elected state delegates to
reflect on the adequacy of our present institutional structure. The current
problems posed by the way we elect our presidents would certainly justify
extended discussion by a cross-section of American leaders empowered to
propose constitutional amendments for consideration by state conventions
(as allowed by Article V) elected by the people of the states.
It would be foolish to deny that an Article V convention would raise many
problems of its own. Like much of the Constitution, Article V is poorly
drafted, and it provides no clue as to how, precisely, a convention would
be organized. For example, would votes be cast on a one-member, one-vote
basis, as in the House, or on the basis of equal votes for each state, as
in the Senate? (Obviously, I favor the former.) Other problems will occur
to readers. But a constitutional convention is, for better or worse, the
best procedure given us, by the Constitution itself, to respond to what are
the decided imperfections of the document we were handed in 1787.
To reject even thinking about the possibility of changing aspects of our
governmental structure is to say, in effect, that we really shouldn't
worry, that the last month has been perfectly all right and that it speaks
only to the strengths, and not at all to the weaknesses, of our
constitutional order. One might be touched by such displays of faith, but
this is no time for constitutional cheerleading. Even the Framers
recognized the possibilities of imperfections, the frailties of humans, and
the importance of learning from experience.
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