Our Imbecilic Constitution?

I woke up a few days ago and on the front page of the NY Times was a link to Sanford Levinson’s op-ed, entitled “Our Imbecilic Constitution.”

Granted I have to allow for the fact that I’m American, and proud of it, and so am liable to be a bit touchy with regards to the foundation of my country’s government, but even after some consideration, I think Levinson makes some bonehead moves in his piece. At least one of his examples works against his argument, he contradicts statements that he’s made elsewhere, he makes some elementary mistakes in his wording that make me doubt his background in political science, and he alienates a big part of his audience by insulting a group about which many people feel quite strongly.[1]

Levinson’s blanket suggestion is to make it easier to change the US Constitution. You’d think that he’d buttress his argument with examples of large, heterogeneous states that have relatively easily changed constitutions and which function well. His first example? California, which he admits is “the only state with a constitution more dysfunctional than that of the United States.”[2] How does he expect to get away with using an example that goes against his argument?

More serious, to me anyway, is his tendency to contradict ideas that he’s promulgated elsewhere. In the present article he suggests breaking political deadlock in Washingtonby allowing the incoming President to appoint members of Congress to four year terms that would run concurrent with his own. And yet it doesn’t take too long to find quotes and examples that find him criticizing excessive Presidential power, particularly as wielded by George W. Bush. And so how does he reconcile his distaste for an overpowered Executive with a suggestion that would give the President vastly more power? He doesn’t.

As for historical background, Levinson brings up the case of Woodrow Wilson, who “basically supported a parliamentary system and, as president, tried to act more as a prime minister than as an agent of Congress.” He’s trying to draw a subtle distinction and ends up sounding ignorant. An agent of something works on behalf of that something, as in “my agent bought the property for me” or “James Bond stole the microfilm for the British Secret Service.” Given that a Prime Minister serves at the leisure of a Parliamentary majority, he is an agent of that majority. Levinson should say, “WW acted as an agent of Congress, much as the Prime Minister executes the will of the Parliamentary majority.” That I can correct Levinson after one year of high school government should give anyone else reading him some thought.

It’s possible that Levinson’s going too far in hopes of making Constitutional reform seem more moderate and rational, but he should remember two things: A) the Framers did, you know, actually put a mechanism for Amending the Constitution in the Article V of same and B) moderation is not an exact synonym for caution, but it is pretty close, and caution leans away from making Constitutional changes too easy to effect. Whether Levinson is moderate or cautious or reasonable is much less debatable for the fact that he calls the Constitution imbecilic in his title; it makes him sound like a revolutionary, and revolutionaries usually don’t hold the kind of even-tempered view that you’d hope a politician or voter would embrace.

That’s a shame, because there are one or two suggestions in his paper that pique the interest. One of these is that only supermajorities in the courts could overturn legislation (how would it change the game if you needed seven supreme court votes to overturn a law rather than five?—if nothing else it would change the delicate dance that Supreme Court nominees have to learn).

Yes, the Constitution can be changed, but that doesn’t mean you should be able to change it easily. It has been one of the most enduring bases of government for the past 225 years, and while he’s welcome to complain about ours, Mr Levinson is also welcome to point out other national constitutions that are both more changeable and quite so long lived.


[1] He also can’t resist bringing up famous historical figures who kinda sounded like they’d agree with him in the present, among them Teddy Roosevelt. This isn’t a valid logical move (why are the Framers so far removed from our time that we can’t trust them, but TR and Woodrow Wilson aren’t?), and it isn’t so hot rhetorically either b/c it lets the counterarguer point out that TR also felt strongly about “helping” lesser races become more white.

[2] He also citesMaine, whose constitution has a provision whereby the population can repeal unpopular legislation. But which state resembles theUS as a whole more closely, large, heterogeneousCalifornia, or small, nigh uniformly unpopulatedMaine?

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2 Responses to Our Imbecilic Constitution?

  1. Thom Locke says:

    Well reasoned response to what appears to be an “Imbecilic” article. I would caution however that perhaps the “Imbecilic” title may have been the editor’s choice. Neither here nor there, it appears as if this article was poorly framed.

    • absitnomen says:

      I have to grant that editor may have chosen the title over Levinson’s objections–but s/he is already on the hook for having allowed such a flawed argument get through. As it happens the term came from the Framers’ indictment of the Articles of Confederation, Levinson’s conceit being that we should hold the Constitution no more sacrosanct than the Framers held the Articles of Confederation to be (the difference being the Articles lead to political chaos and economic meltdown, which are different from political gridlock and economic downturn). Perhaps I should go easier on Levinson–“imbecilic” worked for the Framers when they wanted their Constitution passed.

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