By Sanford Levinson
April 14, 2023
*This is the second article in our series The Promise of an Amendable Constitution in an Uncertain Era. You can view the rest of the pieces in the series here.*
I strongly support a new constitutional convention and bewail the fact that most of those who style themselves “liberal” or “progressive” (including, say, Common Cause), are devoting their considerable energies and resources to delegitimizing the prospect. Part of their argument is that there is a significant right-wing movement supporting a new convention. The response has been a monumental failure of imagination—indeed, I would call it intellectual and political bankruptcy—that denounces the very idea of such a convention rather than countering bad right-wing ideas with far better ideas of our own. So let me summarize my premises:
1) The American political system is in desperate shape, and, incidentally, that was true before Donald Trump became President, even if he exacerbated it (and helped to illustrate the problems). Norman Ornstein and Thomas Mann published in 2012 a much-discussed book, It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism. Today 2012 looks almost halcyon compared to the present mood and reality, when serious books contemplate the possibility of civil war.
2) Though certainly not the only cause of our present discontent, the U.S. Constitution plays an important role in making it hard, if not impossible, to envision the American national government’s playing an active role in confronting and alleviating the challenges facing us as a country. Polling indicates a stunning lack of approval—or “confidence”—in our basic institutions. Even the Supreme Court, which usually scores highest in such polls, is now below 50%, largely because of its remarkable recent decisions regarding abortion, guns, and the environment (with most people anticipating the coming demise of affirmative action). Most Americans (correctly) believe that we are headed in “the wrong direction.” Significant numbers of Americans favorably contemplate the possibility of their state’s or region’s seceding from the U.S.
3) The Constitution needs significant, even drastic, revision if the American system of government is to function in the 21st century as anything close to what we would like to think of as a liberal democracy. Too much of our political discourse takes the form of demonizing those we disagree with and looking for political heroes who promise to cure our ills, as if the problem is simply a “failure of leadership” that could be rectified by firing the old manager and hiring a new one.
What this fails to do is to recognize that it is the Constitution itself that in some cases gives individuals or political parties excessive undeserved political power. The most obvious illustration is the United States Senate, with its equal apportionment of voting power that means, by definition, that California, with roughly 40 million people, has the same two senators as the 550,000 people of Wyoming. As it happens, I much prefer Vermont’s two senators to Texas’s, but it is indefensible that Vermont’s 650,000 people are able to counterbalance Texas’s 28 million residents. James Madison was correct in 1788 when he referred to this feature of the Senate as an “evil.”1The Federalist No. 61 (James Madison). He ultimately argued that it was a “lesser evil” to having no Constitution at all, had Delaware and other small states carried out their threat to leave the Convention. This was, of course, the same rationale for accommodating slaveowners and slave states.
4) The correct perception of a gridlocked Congress, in large part because of decisions made in 1787, leads both to presidential and judicial overreach. All presidential candidates, or both parties, promise the enactment of certain policies that they should realize have no chance of passage under the present system. As best illustrated, alas, by Bernie Sanders, they spend literally no time explaining that structural reform of the Constitution may be necessary (and proper) should one wish the significant policy changes envisioned by the candidate (and his supporters) to take place. Of course, presidents, when elected, can push the envelope of executive power, which has its own obvious problems.
5) My favorite presidential election occurred in 1912, because three candidates—Woodrow Wilson, Teddy Roosevelt, and Eugene Debs—were serious constitutional reformers, running against an unusually able defender of the old constitutional order, William Howard Taft. Wilson, of course won, and the ensuing eight years featured four important amendments to the Constitution. As much to the point, the decade generally encouraged people to think of constitutional reform. It was not unthinkable, as it is, basically, today. Consider only that Barack Obama, the former president of the Harvard Law Review, has never offered any interesting reflections on the Constitution, other than to note, while illustrating the necessity of compromise in politics, that accommodation with slavery was a price of getting the Constitution adopted in 1787.
6) The basic problems of the Constitution involve structures, not inadequate protection of rights. Most of the proposed amendments, including the ones discussed at the Brennan Center gathering, involve the latter. There is nothing wrong with added protection for certain rights, but that has almost no relevance to the ability of Congress, in particular, to confront the problems facing us. Even strengthening the right to vote and taming the indecent power of money in the election process, however desirable, elides any recognition of the possibility that we should reconsider the Framer’s decision to repress any possibility of direct democracy in favor of an exclusive reliance on representative democracy. This makes the U.S Constitution something of an outlier not only when compared with many other liberal democratic countries around the world, but also, and perhaps even more significantly, with most of the American states. California, of course, is the best known state that allows citizens’ initiatives and referenda. But that is true of Maine as well, whose people have over the past fifteen years, intervened quite dramatically with regard to decisions made (or not made, as with joining the federal Medicaid program) by the state legislature and governor. In any event, we should not believe that singular amendments are likely to be very helpful, nor, even more to the point, should we believe that we necessarily have decades available to us to fix the Constitution on an amendment-by-amendment basis, especially if one believes that Congress would have to propose such amendments.
7) Only a new convention can expend the time and energy to discuss the Constitution as a whole and to try to imagine what kind of system would make the most sense for 21st century realities that could not possibly have been envisioned by people in 1787. To expect Congress to do this is simply fanciful, given all of the other demands of their scarce time and energy (even if they weren’t spending indecent amounts of time raising campaign funds). Serious thinking about constitutional reform requires extensive expenditures of time and effort. The Philadelphia Convention basically took three full months of full-time discussion—and that Convention was carried out wholly in secret, without any oversight or participation by “the people” in whose name it was being drafted. For better or worse, any modern convention would surely be livestreamed and provoke vigorous national conversations that delegates would need to take into account.
8) Some of the needed changes in the Constitution require constitutional amendment. There are no clever “workarounds,” for example, that can eliminate the long hiatus between a presidential election and inauguration of a new president. The Twentieth Amendment, itself an improvement inasmuch as it moved Inauguration Day up from March 4 to January 20, turns out to be an insufficient remedy for this problem, given the ever-more-dynamic nature of the political system and the challenges facing the country. We are effectively without a working government between election and inauguration should, as in 1932, 1980, or 2020, an incumbent be defeated by someone with strikingly different views and policy aspirations. To overcome this problem, of course, would require eliminating our bizarre system of choosing presidents through the electoral college, a change ably presented by Jesse Wegman. But that is relatively low-hanging fruit, even though our sclerotic system has made it impossible even to pick such fruit. Of course, perhaps the most serious single problem is encompassed in Article V itself, which makes it inordinately difficult—at present even impossible—to contemplate serious amendatory changes.
9) Some structural problems do not, as a technical matter, require constitutional amendment. The greatest problem with the House of Representatives, for example, beyond the fact that no new representatives have been “hired” since the present number of 435 was established about a century ago, is that all of its members are elected in single-member districts usually in “first-past-the-post” elections. At the very least, we should all commend Maine for adopting ranked-choice voting for such elections. But it would be even better if the 1842 law requiring single-member districts were repealed in favor of multi-member districts in any state with more than six representatives, elected on the basis of proportional representation. Nothing in the Constitution prevents that, but it is obviously inconceivable that members of the present House would vote for a proposal that was so destabilizing to their own political interests. Were we California or some other state with initiative-and-referendum, applying even to constitutional amendment, we could avoid a convention and instead seek out signatures for a proposed amendment. But we’re not California, and we should realize that a convention is necessary.
10) Much more could be said, and I’ve said some of it in several books, including Our Undemocratic Constitution (2006); Framed: America’s 51 Constitutions and the Crisis of Governance (2012); and (with Cynthia Levinson) Fault Lines in the Constitution (2d ed. 2019). My final takeaway, though, is this: We should emulate what is truly best about the Founding Generation, which was their willingness to look unflinchingly at what they viewed as the problems posed by an “imbecilic”2The Federalist No. 15 (Alexander Hamilton). political structure and to appeal to their fellow Americans to engage in “reflection and choice”3The Federalist No. 1 (Alexander Hamilton). about how they wished to be governed. But today we seem to lack such confidence in our fellow Americans and to feel stuck within an iron cage of an ever more dysfunctional and ineffective, whether or not “imbecilic,” structure of government imposed in 1787 and left all-too-unchanged since then. We are indeed like the fabled frog, placed in what seems to be only tepid water that is, however, slowly but surely moving to the boiling point. It is past time to jump out before it truly becomes too late.
Sanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School, and Professor of Government at the University of Texas at Austin.
Suggested Citation: Sanford Levinson, Bring On a New Constitutional Convention!, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2023).
- 1The Federalist No. 61 (James Madison).
- 2The Federalist No. 15 (Alexander Hamilton).
- 3The Federalist No. 1 (Alexander Hamilton).