Levinson’s Fix for Our Broken Constitution
Last Friday evening, Bill Moyers interviewed Sanford Levinson, one of the
most creative, provocative, and influential constitutional scholars of his generation. The topic of the interview was Professor Levinson’s 2006 book entitled Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Begin Correcting It) [hereinafter cited as "OUC"] which ECA discussed earlier this year. The book is an irreverent tour de force depicting how the Constitution prevents American government from consistently expressing the voice of the people. Levinson draws his bow and takes aim at the Senate, the Electoral College, the presidential veto, life tenure for federal judges, and a host of other undesirables hitting the bull’s-eye in every case. Unlike most other critics of the Constitution, however, Levinson is not content in merely presenting a litany of democratic complaints and leaving the matter there. Instead, Levinson calls on We the People to petition Congress to permit Americans to vote on the following proposal:
Shall Congress call a constitutional convention empowered to consider the adequacy of the Constitution, and, if thought necessary, to draft a new constitution that, upon completions, will be submitted to the electorate for its approval or disapproval by majority vote? Unless and until a new constitution gains popular approval, the current Constitution will continue in place. OUC, p. 11.
In the Moyers’ interview, Levinson amplifies on how the participants of this second constitutional convention will be selected.
Well, since this is the most often asked question, especially by friends and members of my family, I have an answer to it. And I’m not so fearful, for a number of different reasons. First of all, how would I choose members of the convention? My answer is to go back to ancient Greece, or to look at the way we choose juries. And I would have 700 or so of our fellow citizens chosen at random. Meet for two years, pay them the salary for those two years of a Justice of Supreme Court, United States Senator, because they would be fulfilling the highest possible function of citizenship. Give them time to reflect and learn about these issues.
Levinson wants to highlight the Constitution’s Preamble which says: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, [sic] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The Preamble, for Levinson, is the core sustaining value and end toward which the other Articles of “the single most important part of the Constitution” (OUC, p. 13) because:
It announces the point of the entire enterprise. The 4,500 or so words that followed the Preamble in the original, unamended Constitution were all in effect merely means that were thought to be useful in achieving the great aims set out above. It is intended the ends articulated in the Preamble that justify the meaning of our political institutions. And to the extent that the means turn out to be counterproductive, then we should revise them. Id.
The Preamble represents, in the words of the ordinary language philosopher J. L. Austin, a performative utterance. The Preamble doesn’t merely convey information. Rather, it brings 
into existence the very document for which it is an integral part. Alternatively stated, the Constitution is born with the collective speech act which is the Preamble. In Levinson’s view, the Preamble is “magnificent. And [he thinks] we ought to think about it almost literally every day, and then ask, ‘Well, to what extent is government organized to realize the noble visions of the preamble?’ That the preamble begins, ‘We the people.’ It’s a notion of a people that can engage in self-determination.” Levinson’s commitment to the Preamble reveals that any attempt to paint him as some naive, wide-eyed utopian willing to scrap the 200 plus year document without any idea of what to replace it with is decidedly erroneous. Levinson’s faith in the underlying normative core of the Constitution–the Preamble–is deep and pervasive.[1]
In defense of Levinson’s important project, one might say that the 1787 document together with the 27 amendments constitute a first draft of how Americans have chosen to express the Preamble’s ideals. Understood in this manner, Levinson’s proposal is far less of an intemperate and irresponsible rejection of the Constitution than a call for the redeployment of the Preamble’s ideals in contemporary America. Levinson’s proposal, then, is to initiate a conversation to consider whether to replace the 1787 document which may have been satisfactory for the founding generation with one which is more suitable to our current democratic needs.
It’s terribly important not to scrap this project by insisting upon a distinction between a democracy and a republic. While it may be true that some of the founders saw democracy as the enemy of republicanism, today these political ideals are far less distinguishable. The idea of a representative democracy, constrained by various filters designed to create a government capable of expressing the reflective will of the people, is a good bridge between narrower and ancient conceptions of democracy and republicanism. Few Americans embrace direct democracy whatever that would look like in contemporary America.[1] And even fewer democrats embrace unconstrained majority rule. Moreover, America’s constitutional culture looks askance at a republicanism which merely pays lip service to the reflective will of the people. Accordingly, the notion that the democratic defects of the Constitution can be papered over simply by insisting that the Founders sought a republic not a democracy is not
especially illuminating; indeed, it’s downright misleading. Whatever we call the political philosophy underlying the Constitution, consent must be an ineliminable feature. And objections to the Constitution in contemporary society, along the lines of Levinson’s critique, are replete with obstacles for realizing systematically and consistently the consent of the governed. Of course, one can force a distinction between democracy and republicanism by transmogrifying one or the other conception into a distorted replica of itself–for example by defining democracy as simply majority rule–but other than scoring a polemical point such a transformation isn’t conceptually or practically significant.
No one need agree with Levinson regarding all, or even any, of his arguments. But everyone–constitutional scholars, and more important, reflective American citizens–should confront the arguments in his book. We are all indebted to Sandy Levinson, not only for his wonderful book on fixing American constitutionalism, but also for his extraordinary career as a public intellectual and as a patriot who always gives his best to America.
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[1] It’s not clear whether Levinson believes the Preamble to be an entrenched feature of the Constitution, one that the second constitutional convention cannot amend. If so, the entrenched Preamble seems to have its own democratic deficits. If not, then Levinson must be willing to endure the new constitutional convention jettisoning the Preamble entirely, or amending it to say, “We the States” or some other reactionary change in its text, for example, adding “Under God” or “life begins at conception,” or “‘marriage is a union of one man and one woman.” Indeed, it is virtually guaranteed that some anti-democratic provisions will be included in the new constitution. Upon realizing this, one can reject Levinson’s entire project or acknowledge ruefully that a republican democrat must be prepared to lose some important battles even over the basic structure of the society.
[2] An exception might be Mike Gravel’s Philadelphia II project.
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