Monday, January 15, 2007

Just How Democratic Is The Constitution?

Even after we quibble over whether the United States Constitution creates a democracy or republic, most Americans revere the United States as a bastion of democratic hope. Democracy, republican democracy, seems to have won the day. This veneration often blinds us to the democratic defects the Constitution creates. These are not defects that are cured by insisting that the Founders intended a republic, not a democracy. Arguably, they are defects that no reasonable republican democrat could embrace without giving up the hope of self-government. Among the more prominent democratic defects are: equal representation in the Senate, bicameralism, the imperial presidency, life tenure for federal judges, and the mother of all democratic defects: Article V.

Never before have these defects been examined with the lucidity found in Sanford Levinson's new book, Our Undemocratic Constitution: Where the Constitution Went Wrong (And How We the People Can Begin Correcting It). I've recently published a review of this book in the Law & Politics Book Review ably edited by Wayne McIntosh.

Levinson is convinced that these defects are serious enough to warrant a second constitutional convention. As difficult as it is to imagine conducting such a convention through the auspices of Article V, Levinson goes for broke and dispenses with the need for adhering to Article V requirements at all. Since Article V is one of the chief democratic defects of the American Constitution insisting on adhering to its requirements will damn the movement for change before it even gets going. Levinson believes that once the convention is up and running, it can declare that a national referendum is all the legitimacy we need for ushering in a new constitutional age. There's precedent for Levinson's unorthodox proposals. Sticking to the rules laid down, as Bruce Ackerman has argued, was dispensed with in moving from the Articles of Confederation to the Constitution and then again in ratifying the Fourteenth Amendment. We can then follow Akhil Amar's contention that Article V applies to governmental initiated constitutional change and does not prevent the sovereign authority of the people from adopting a more majoritarian process.

However, these examples of innovative, unorthodox change occurred during critical periods in our republic's life. How can we ever hope to persuade a majority of American citizens to dispense with the niceties of following the rule of law in less critical circumstances? (Of course, this raises the question of whether such unorthodoxy is necessarily dispensing with the rule of law.) In all likelihood, only some pervasive constitutional crisis would prompt a call for a constitutional convention, one that might then play fast and loose with explicit constitutional requirements making the result frighteningly unpredictable. That's a shame because, while there are always risks to change, if the Constitution were changed in relative serene circumstances--whether or not through Article V--we might prevent just such a pervasive constitutional crisis, which necessitates destructive constitutional alterations. In any event, the critical importance of Levinson’s Our Undemocratic Constitution makes it a must read for judges, scholars, attorneys, statesmen, but especially for citizens concerned with the future of our republican democracy.


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