Welcome Sanford Levinson (Harvard) (UT-Austin) and Host Aziz Huq (Univ Chicago) (The Nation)

Framed: America’s 51 Constitutions and the Crisis of Governance

In 2011, the credit rating agency Standard & Poor downgraded federal debt from an “AAA” to a “AA” status, citing concern about “the effectiveness, stability, and predictability of American policymaking and political institutions.” The rating agency’s view is not eccentric. Gallup’s survey of public confidence in Congress finds only 16% approving of the national legislation—up, to be sure, from 10% in February this year. Nor can the malaise be cabined to the federal government. From California to Wisconsin to New York, there are widespread public perceptions that state governments too are failing to provide effective, stable, and predictable governance.

In Framed: America’s 51 Constitutions and the Crisis of Governance, the constitutional scholar, political theorist, and prolific public intellectual Sanford Levinson makes the case that this is no passing squall caused by momentary economic dislocations, but evidence of deeper flaws in how basic governance institutions are designed. Diverging from those who call for new leadership in the White House, a new political party, or even new policies, Levinson calls for reflection about some basic choices embedded in constitutions that most commentators take for granted.

Think of the following questions: Why do we have a ‘representative’ national democracy, rather than a ‘direct’ democracy, employing more referendums and initiatives in the manner of the Western states? Do we need a Senate? Should we reorganize our system of political choice to limit the incidence of ‘divided government’—or should the institution of “shared” state executives (in which a governor and a lieutenant governor come from different parties?) be instead an inspiration? And would the “crisis” of government be any the less grave if the Constitution was easier to amend than it currently is? As Levinson notes, the last really significant amendment to the text of the Constitution was in 1951, when the twenty-second amendment introduced presidential term limits.

Like the fine law school teacher he is, Levinson’s strategy in Framed is to confront the reader with a series of counterintuitive examples, puzzles, and unexpected questions about what, to many, will appear basic and immoveable aspects of the institutional landscape. Readers expecting a glib program for radical change will be disappointed at the absence of direction. To understand Levinson’s rewiring of what law students call the Socratic method of teaching to the printed page, it is helpful to recall Professor Kingsfield’s famous dictum from The Paper Chase: “You come in here with a skull full of mush; you leave thinking like a lawyer.” That is, it’s not always the “right” answers that matters, it’s the asking of the right questions.

Levinson, to be sure, has opinions on what works and what doesn’t. It seems fair to construe him as uncomfortable, and even at times hostile, to many aspects of that landscape. The title of his previous book—Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It)—is proof enough of that. His chapters on the Senate (which is labeled as a chapter on “bicameralism”) and the Electoral College make it clear that he, like that other radical questioner of standing political institutions James Madison, thinks those institutions by and large indefensible on anything but historical grounds.

Still, if Framed is a polemic, albeit a peculiar one. The object of obloquy this time is less the U.S. Constitution itself (which remains center-stage for most of the book, notwithstanding the equal billing awarded to state constitutions)—it is an unblinking and unreasoned reverence for the Constitution, and a failure to cast a gimlet eye on what might be perceived as a gimcrack 1787 invention, that is the object of attack here. I suspect that some FDL readers will blink when they run across Levinson’s periodic praise of the Tea Party for its proposed repeal of the Seventeenth Amendment (which formally installed the popular election of Senators); his point, though, is that the proponents of this proposal are at least thinking in terms of serious, even radical, institutional change.

The bottom line of the book, a concrete proposal offered in its closing pages but echoing an argument made in Our Undemocratic Constitution, is for a new constitutional convention, with delegates from each state, proportional to population, selected on the basis of a lottery system and resourced with staff and time to enable both meaningful investigation and deliberation.


[As a courtesy to our guests, please keep comments to the book and be respectful of dissenting opinions.  Please take other conversations to a previous thread. - bev]

83 Responses to “FDL Book Salon Welcomes Sanford Levinson, Framed: America’s 51 Constitutions and the Crisis of Governance”

BevW July 29th, 2012 at 1:49 pm

Sandy, Welcome back to the Lake.

Aziz, Welcome to the Lake and Thank You for Hosting today’s Book Salon.

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Aziz Huq July 29th, 2012 at 2:00 pm

Hi Sandy and FDL readers,

Welcome to today’s salon. Why don’t I kick things off by asking a question that builds on Coach Bill’s question (over on comments section to the preview), about how constitutional amendment works today (which is one of the topics addressed in Framed). Basically, Article V of the Constitution makes the text of the Constitution very difficult to amend, and gives a functional veto to quite small and geographically concentrated minorities. Say we’re unhappy with one or other aspect of the Constitution. Are we stuck with Article V?

dakine01 July 29th, 2012 at 2:01 pm

Good afternoon Sanford and Aziz and welcome to Firedoglake this afternoon.

Sandy, I have not read your book so forgive me if you address this, but what was the most surprising Constitutional provision you have found?

Sanford Levinson July 29th, 2012 at 2:02 pm

Hi. I’m very grateful for this opportunity to chat with Aziz and anyone else who might be on line.

eCAHNomics July 29th, 2012 at 2:04 pm

a concrete proposal offered in its closing pages but echoing an argument made in Our Undemocratic Constitution, is for a new constitutional convention, with delegates from each state, proportional to population, selected on the basis of a lottery system and resourced with staff and time to enable both meaningful investigation and deliberation.

How in the world can that happen when the U.S. can’t even find 2 reasonable people to run for POTUS.

Sanford Levinson July 29th, 2012 at 2:05 pm
In response to Aziz Huq @ 2

Although there are those, like Yale’s Akhik Reed Amar, who have imaginative ideas for circumventing Article V, it’s hard to argue that we’re not stuck with it. The only way of becoming “unstuck” would be the development of close to a national consensus that the difficulty of formal amendment does indeed constitute a “clear and present danger” to our national survival in at least some circumstances.

CTuttle July 29th, 2012 at 2:05 pm
In response to Aziz Huq @ 2

Aloha, Aziz and Prof. Levinson, mahalo for being here at the Lake…!

What about the Con-Con aspect of Article V…?

Sanford Levinson July 29th, 2012 at 2:07 pm
In response to eCAHNomics @ 5

What I suggest in the book is that delegates to a national convention be picked basically in the same manner we select juries, i.e., at random subject to minimal “culling” mechanisms (such as, say, age). This would eliminate the predictable problems of conducting elections for delegates, which would serve as a magnet for single-issue groups.

Aziz Huq July 29th, 2012 at 2:07 pm

I’m afraid I don’t know what the “con-con” aspect of Article V is…

But, Sandy, let’s say we’re stuck with Article V. Can you imagine conditions in which the difficulty of formal amendment has been a “clear and present danger”? Are there historical examples?

Sanford Levinson July 29th, 2012 at 2:09 pm
In response to dakine01 @ 3

I’m not sure that I was “surprised,” but in the course of writing both this book and my previous book, Our Undemocratic Constitution, I was surprised by the extent that I have ended up extremely dubious about the wisdom of allowing the president to veto legislation on policy (rather than constitutional) grounds. This effectively turns us into a “tricameral” system, which I do not think has served us well.

CTuttle July 29th, 2012 at 2:11 pm
In response to Aziz Huq @ 9

Here’s a great article about a recent CRS report… Research arm of Congress sheds light on failure to perform constitutional duty

“The Article V Convention for Proposing Constitutional Amendments: Historical Perspectives for Congress (July 10, 2012) and Contemporary Issues for Congress (July 9, 2012)

Sanford Levinson July 29th, 2012 at 2:12 pm
In response to Aziz Huq @ 9

Bruce Ackerman has certainly argued that the formal difficulty of constitutional amendment has generated several “constitutional moments” in which significant constitutional change–he refers especially to Reconstruction and the New Deal–took place outside the boundaries of Article V. Consider what our response might be were we in the middle of another World War and the 22nd Amendment made it unconstitutional for an unusually able Commander-in-Chier, Diplomat-in-Chief to run for re-election. That would strike me as close to a “clear and present danger.” Thus I would prefer that Congress be able to suspend the 22nd Amendment rather than feel compelled to observe it even if takes us over a cliff.

Sanford Levinson July 29th, 2012 at 2:14 pm
In response to CTuttle @ 11

One reason to support a national convention is that it is clearly unrealistic to expect Congress–even if one had more confidence in members of Congress than currently seems to be the case for most people–to take the time necessary to think seriously about significant constitutional change. They have too much to do otherwise, even if one ignores the obscene amount of time they spend raising money.

Sanford Levinson July 29th, 2012 at 2:16 pm
In response to Aziz Huq @ 2

Let me add that one of the worst features of Article V is that it stifles any serious discussion of constitutional change, especially involving structures, which are inaccurately thought to be boring parts of the Constitution as distinguished from the rights provisions that we, especially law professors, tend to obsess about.

Aziz Huq July 29th, 2012 at 2:17 pm

Although, aren’t the 2 national political parties effectively gatekeepers that can ‘veto’ such proposals? And doesn’t Framed suggest that they both have much to lose from changes to the status quo. (Which might lead one to think it’s best to aim for more modest kinds of reforms).

CTuttle July 29th, 2012 at 2:23 pm

Mahalo, for that response, I agree wholeheartedly that we do need a Con-Con, but, the fundamental problem lies in identifying the ‘delegates’…! Any thoughts…?

Sanford Levinson July 29th, 2012 at 2:25 pm
In response to Aziz Huq @ 15

The best way to understand the original Constitution, for better or worse, is as an attempt to limit the influence that “factions” can have in national decisionmaking. The original vision–which lasted no later than 1800, was that we’d be led by virtuous elites committed to serving the national interest. Although there is much to be said in favor of political parties, it’s obvious that they can also become pathological, inasmuch as the essence of “party loyalty” is to prefer the interest of the party to what one might believe, at least in private, would serve the nation well. Thus, for example, the Republican Party is currently well (perhaps “best”) explained as devoted to depriving President Obama of anything that could be described as an accomplishment, lest it promote his prospects for re-election, even if, perchance, some of his proposals would in fact help the country at large.

So one question that should be on the table is the extent to which we’re well served by the present party structure and whether we might create institutions that, for example, would encourage a more multi-party system.

Sanford Levinson July 29th, 2012 at 2:27 pm
In response to CTuttle @ 16

As noted above, I would “identify the delegates” by picking them basically at random, creating a national “citizen jury.” I discuss the work of Stanford political theorist Jim Fishkin at some length in my book; he has held what he calls “deliberative polls” around the world, and they could, I think, serve as an extremely useful model for a convention.

Starbuck July 29th, 2012 at 2:27 pm

Good afternoon.

What is a con con?

Sounds like a dance!

Starbuck July 29th, 2012 at 2:28 pm
In response to Starbuck @ 19

I figured it out.

Never mind!

dakine01 July 29th, 2012 at 2:28 pm
In response to Starbuck @ 19

con con = Constitutional Convention

Aziz Huq July 29th, 2012 at 2:30 pm

This relates both the CTuttle’s question and to Sandy’s last comment about parties:

Chris Hayes has recently drawn attention to a theory associated with Robert Michaels, a turn of the century German sociologist Robert Michaels, termed “the iron law of oligarchy.” This is the idea that “political parties, trade unions, and other mass organizations are inevitably ruled by largely self-serving and self-perpetuating oligarchies, which defy attempts at democratic control or participation.”

One might worry that Michaels’ diagnosis is right for the US. That is, what matters is deeply entrenched patterns of political culture, not the details of specific constitutions. Just as China and Russia can change from feudal to communist and yet retain basically parallels modes of governing (think, e.g., of Putin as a new kind of ‘tsar’), so we might change the constitution, but we’d still have the same powerful forces afflicting policy outcomes.

Starbuck July 29th, 2012 at 2:30 pm

It is my understanding that the Senate exists to re balance, if only approximately, the weight those most populous states have on lawmaking. If the Senate were to disappear, what would take it’s place in this balancing act?

Aziz Huq July 29th, 2012 at 2:31 pm

And — I should make that a question! — if you buy Michaels, or Chris Hayes reworking thereof, does this suggest that the structures, or the ‘boring bits,’ really are not that all important?

Sanford Levinson July 29th, 2012 at 2:31 pm
In response to Aziz Huq @ 15

One other point about a “more modest” model of reform. The fact is that Congress has proved incapable of any kind of consideration at all of structural changes. I have a discussion in my book of a proposed constitutional amendment, drafted by a joint commission organized by Brookings and the American Enterprise Institute, on creating “continuity in government” should a terrorist attack, for example, kill hundreds of representatives or disable dozens of senators. (Dead senators can easily be replace, which is not the case with dead representatives or disabled senators.) Although Sen. John Cornyn actually introduced the amendment in 2004, it has gone absolutely nowhere, because it’s not viewed as a sexy issue that plays to “the base.” Instead, we get idiotic proposals for amendments on flag burning or same-sex marriage, which not only are not going to go anywhere, practically speaking, but are also entirely irrelevant to the basic problem of contemporary national government, which is the inability of Congress effectively to respond to almost any of the basic challenges facing the country. This is the “crisis of governance” I allude to in my title.

Starbuck July 29th, 2012 at 2:31 pm
In response to dakine01 @ 21

I got that the moment I hit the send key!

CTuttle July 29th, 2012 at 2:33 pm

Could you expand a little on ‘deliberative polls’…?

Sanford Levinson July 29th, 2012 at 2:36 pm
In response to Aziz Huq @ 24

Aziz asks the crucial question: How important are constitutional structures anyway. Are they really “superstructural,” built on top of what’s “really important,” whether it’s political culture, social homogeneity, or the state of the economy? I don’t want to overestimate the importance of constitutions. It may well be the case that, at the end of the day, they explain less about a given society than these other factors. But “less” is not the equivalent of “nothing,” and I think it is a major mistake to ignore the extent that the United States Constitution, and certain state constitutions like California’s, make their own contributions to our current malaise. I compare this to drug interactions. One might be able to take a number of drugs, separately, and some, of course, might be more important than others. But even aspirin can, under some circumstances, interact with other drugs in highly deleterious ways. So that is really the heart of my argument about the Constitution. Unless one thinks it’s of NO importance, then we should be far more attentive than we are as to how it is ineracting with other features of American society in order to create a potentially disastrous situation.

Kevin Gosztola July 29th, 2012 at 2:38 pm

Much of the theorizing and intellectual explanations in the book appear to get at a key tension in the 51 constitutions – specifically, how much representation should be given to the people and how much decision-making power should be kept in the hands of those at the top who are writing and are able to directly control the final language of any constitution.

What part of these constitutions do you see creating tension in current governance or politics today? Do any parts bear direct responsibility for any of the tension in society between those who think the people should have more representation in government and those who do not?

sadlyyes July 29th, 2012 at 2:40 pm
In response to eCAHNomics @ 5

i loves ya,always right to the point

Sanford Levinson July 29th, 2012 at 2:40 pm
In response to CTuttle @ 27

I strongly urge you to track down Fishkin’s most recent book, published a couple of years ago by Oxford (and whose title I am obviously not now remembering). Basically, what he does is to select a random sample of people–and, as I said, he’s done this all over the world, including China, Australia, Bulgaria, as well as within the US–and bring them together to a given locality for a weekend. During that time they attend “briefings” on given issues from people carefully selected to protect various points of view. At the end of the time together, they are polled (as they have been when they arrive). What is interesting is to see to what degree they change their views after they’ve become considerably better informed about the complexities of given issues. Jim’s objection to most polling is that they are simply snapshots at a given instant of people who in fact may never have though more than a moment about the issue they’re being polled on. That’s not the case with the people who participate in his “deliberative polls.” And the mechanism of their selection assures that they are a good cross-section of the population.

Peterr July 29th, 2012 at 2:42 pm

Sandy, I’ve only just begun to read the book, in part because I’ll read a section that will pose such delightfully interesting questions that I’ll set it down for a bit to chew on them. Right now, the question you pose about the Preamble is the one on my mind: “What is the Point of Preambles (as opposed to the rest of the Constitution)?”

I am a pastor, not a lawyer, but as regulars at FDL know, I chew on legal texts with the same rigor that I use in looking at religious ones, and the preamble has been a touchstone for me about what this whole experiment in government is all about. You mention Justice Wilson and the “purposeful reading” approach to preambles — “The Constitution has a point, which is to achieve the purposes set down in the Preamble” [Your words, not Wilsons] — which I suppose best fits my approach as well.

What I was surprised NOT to find in your discussion of Preambles was any reference to the Articles of Confederation. If the Declaration of Independence contained a strong contrast between the monarchy of Great Britain and “the representatives of the United States of America in General Congress assembled”, it strikes me that the Constitution presents a similar contrast between itself and the governmental form presented in the Articles of Confederation.

In the preceding chapter, you called the Articles of Confederation “thoroughly inadequate”, with which I have no dispute. I can’t help but notice that the Articles of Confederation have no preamble to speak of. They begin very pedestrianly:

To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.

Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

Any thoughts on how the absence of a preamble here might be evidence of a lack of clarity on the form and role of the government of the new nation?

CTuttle July 29th, 2012 at 2:45 pm

*heh* That almost sounds like Frank Luntz’s polling techniques…! ;-)

Sanford Levinson July 29th, 2012 at 2:45 pm
In response to Kevin Gosztola @ 29

One of the most important lessons produced by looking at the “other 50 constitutions” within the United States is to realize that only Delaware among them joins the US Constitution in rejecting any and all “direct democracy” in favor of an exclusive reliance on “representative democracy.” 49 of the fifty states, for example, require popular ratification of proposed constitutional amendments. More important, I suspect, is the ability of voters in, say, Maine or Ohio to put legislatioon passed by a legislature and signed by the governor on the ballot for popular review, as has recently happened in both states. California, like many other western states especially, makes vigorous use of the “initiative and referendum.”

One of the major themes of my book is that i’s simply fallacious to view “the American constitutional tradition” as captured exclusively in the US Constitution. What’s interesting about the state constitutions is how much of the national model they have in effect rejected. Yet we never ask ourselves which provide better models of government in the 21st century. One possible answer, of course, is that a given state constitution is perfect for that state, and the US constitution is perfect for the nation as a whole. That’s a possible answer, but I’d like to hear the arguments as to why that’s the case. And that’s the argument we’re simply not having in this country.

DWBartoo July 29th, 2012 at 2:46 pm

Thank you for joining us at FDL this evening, Sanford.

I quite agree with the premise that the US Constitution is held in such reverence that some of its most glaring failures, those you have mentioned, and another one, in particular, prevent the level and quality of discussion now necessary.

Although some of its “authors”, Adams, Franklin, and Jefferson, come to mind, obviously realized the “problem” of money, of corporate power, and the concentration of irresistible power which money afforded, they were, apparently, not able to envision any means by which society could protect itself from what we, today, would call the sociopaths … those whose “distance” from “ordinary life” permits them a basic lack of empathy for others and no concern greater than protecting their own avarice … and perverting the “law” zand the Rule of Law to those “ends” … however “natural” this elite might regard the rise of its members, to prominence and dominance.

Until society, and not merely our society, but all of human society may confront this problem of protecting itself from destruction, from within as well as without, societies will collapse at the whim of prevailing social pathologies.

Also, it seems that there are many who would have us develop a “plan” to attack what exists, the prevailing, undeniably crushing pathology … without any clear idea of “where” society would actually benefit from “going”.

Too often, the obvious, cannot be realistically examined because it is so obvious that no one can “see” it … and I truly appreciate your ability both to see what is obvious and your willingness to provide suggestions for how the obvious might be become more broadly understood. Until “we”, together, the individuals who comprise society, understand all of the problems, in as much as we may, and have a notion of what, rather specifically, we would like society to become, then many simply will not be able to grasp possibility or have the imagination to envision something different.

Until we may provide narratives which allow others to envision and actually begin to “feel” what a better, more rational, sane, and humane society would BE like, then we cannot expect many of our fellow citizens to not fall victim to demagogic “solutions” … especially of the “final” sort.

As well, the pathology, has also little imagination and will resort to violence both readily and in the extreme, in the meantime, and we are at the threshold of a very mean … time.

That said, and despite the environmental crisis, the one thing which the many have IS time … this is our world, all of us together, but it will be our time only if we may make the most of it.

Again, I thank you for your time and your very thoughtful notions and perspectives.


Sanford Levinson July 29th, 2012 at 2:48 pm
In response to Peterr @ 32

You ask an interesting question about the preamble (or close to lack of same) in the Articles. What is absolutely key, though, is that there’s no mistaking in it that we’re a “confederation” of basically separate states. The preamble to the US Constitution elides that by referring only to the “United States of America.” The original draft that went to the Committee on Detail in August 1787 named each of the states, but that was, of course, omitted in the final version. The basic question ever since is whether we’re really and truly one country or, instead, a collection of states who are only uncertainly connected with one another in a truly common enterprise.

Sanford Levinson July 29th, 2012 at 2:50 pm
In response to CTuttle @ 33

Lutz works with focus groups, and he is, to put it mildly, a “motivated” pollster who wants to figure out only how best to sell his pre-existing point of view. He has no interest as such in making us a more truly democratic political system, which is Fishkin’s concern.

Kevin Gosztola July 29th, 2012 at 2:52 pm

Follow-up – Ignoring whether it would be realistic or not for such a development to occur, theoretically what would be the key dilemmas posed by having a national initiative or referendum process?

Starbuck July 29th, 2012 at 2:55 pm

I still would like to know, Mr Levinson, your perspective to my question (23) about the Senate with respect to Congress and it’s balancing act. It seems to me that having that body to further deliberate the actions of the House has a strong influence on the outcome of many bills.

Am I being to old fashioned here?


Aziz Huq July 29th, 2012 at 2:55 pm

I don’t want to divert attention from Kevin’s second question, but a comment that leaps off from your earlier reply to him.

I wonder whether it’s a mistake to ask for a Constitution that’s “perfect for the nation as a whole.” One way of thinking of the “boring” structural parts of a constitution is as playing 2 roles. First, they are a labor-saving device–they mean we don’t have to re-do basic rules for getting government going ever election. (Stephen Holmes has a great book that addresses this part of what constitutions do). In this role, stability — even if its imperfect – is where the value comes from. Second, a constitution also helps us pick on an ongoing basis new laws and new leaders. Much of Framed is about how the US Constitution does so badly. Fair enough–but perhaps it does so well enough given the potential costs of more flexibility.

That is, perhaps our constitution is “good enough”: It does a great job in stabilizing how government works, and thus saves us a lot of anxiety whenever there’s a big change (think of how anxious folk were in Ghana this last week out of a concern their institutions wouldn’t stick), but the price of that stability is what the economists would call a set of ‘suboptimal’ ongoing decisions rules. And that price is worth paying given the alternative.

bigbrother July 29th, 2012 at 2:58 pm

Every elected official takes an oath to uphold the constitution and the Republic. As well as the Pledge of Allegiance that is repeated before elected bodies convene to do the public’s business. So many have different interpretation of the intentions of the laws according to their own best interest.
Any thought?

Sanford Levinson July 29th, 2012 at 2:59 pm

The basic problem with a national initiative and referendum process is that, as demonstrated in California, it is not at all clear that it genuinely promotes democratic discussion. It takes about $3 million to get any proposition on the California ballot, and that’s obviously before all the advertising, etc. A convention, on the other hand, which would obviously be covered intensively by C-Span would offer an opportunity observe “ordinary Americans” (if chosen at random) engaging in serious discussion with one another, asking pointed questions of “experts” who would come speak, etc., and it would have a quite different valence from the modern process in California. Now, it’s possible that California ia an extreme example, and that we’d be better off looking at the experiences in, say, Oregon or Washington.

I would, incidentally, welcome a national referendum following the proposal of amendments by a national convention, just as I would have preferred a national referendum on “Obamacare” over the spectacle of the Supreme Court’s opining about its constitutionality.

tjbs July 29th, 2012 at 3:00 pm

Just got home from work so excuse me if this has been addressed. What enforcement mechanism would be in the new constitution that we are lacking in our present one ?

Concrete example impeachment was mentioned many times in our constitution but they are very rare. Do you think our present use of impeachment powers is what the framers had in mind. Because of judicial overreach the five traitors in 2000 should have been impeached and removed from our Supreme court.

CTuttle July 29th, 2012 at 3:01 pm

I fully concur with your analysis of Luntz…! ;-)

In your response to Peterr, you wrote:The basic question ever since is whether we’re really and truly one country or, instead, a collection of states who are only uncertainly connected with one another in a truly common enterprise.

Doesn’t the fact that Federal Law trumps State Law, and subsequently, State Law trumps Local law, make us a single Country, and, in effect, precludes us from real tangible bottom-up change…?

Starbuck July 29th, 2012 at 3:02 pm

The referendum process here in Oregon is taking some interesting turns as the process has become “professionalized” and seems to be moving away from it’s roots.

cmaukonen July 29th, 2012 at 3:03 pm
In response to CTuttle @ 44

Late coming in but…GOOD QUESTION !

Sanford Levinson July 29th, 2012 at 3:04 pm
In response to Starbuck @ 39

I despise the Senate because of the patent malapportionment that gives Wyoming the same voting power as California, which has approximately 70 times the population (or, if you’re a Republican who likes that offset, then consider that Pat Leahy and Bernie Sanders from Vermont offset Texas’s two senators). But that isn’t the same thing as criticizing bicameralism per se. There may be a good reason to have a “second house,” especially if it is truly interestingly different from the “first house” with regard to how its members are chosen. The current Senate is different with regard to having longer terms, but it basically shares with the House a deep parochialism inasmuch as every single senators has no incentive to think of any group larger than his/her own state. And, for what it is worth, the modern Senate has nothing at all to do with safeguarding “federalism,” which is a theory of state autonomy. That disappeared with the 17th Amendment, which changed selection from state legislatures to popular vote. So today the Senate is nothing more than a dreadful affirmative action program for the residents of small states.

So I would want any national convention to debate long and hard about how best to design a second house that would play a genuinely valuable role as a potential “balance” to the House of Representatives.

I hope this is responsive to your question.

Starbuck July 29th, 2012 at 3:05 pm
In response to CTuttle @ 44

That argument is coming up here as well because of some peculiar laws pertaining to elections.

Peterr July 29th, 2012 at 3:07 pm

I don’t know that the Constitution elides that as much as it rather forcefully comes down against it. The Constitution is a statement of “we the people” while the AC is an agreement between states, and this basic (and radical) shift of form is laid out in the first three words of the Constitution’s preamble.

Some of the other language of the Articles is borrowed, but given a strongly different twist in the Constitution’s preamble. The Articles speak of “common defense” for example (III), but it is more in the language of NATO — an attack on one is an attack on all — rather than the constitution’s more direct statement that the United States is one nation, and we are bound together to defend it from one end to the other.

Maybe I’m naive, but the Constitution doesn’t merely pose the question of “are we one nation or several,” but answers it emphatically: one. The tenth amendment lays out an understanding of the relationship of the powers of the states and the federal government, but it assumes the unity of the nation as a given. And despite the efforts of several states to revisit this question in a debate that left millions dead, the nation endures — as one nation.

None of this is to say that there aren’t still folks who want to argue this question again, of course . . .

Aziz Huq July 29th, 2012 at 3:07 pm

The kind of debate on a second house that Sandy is advocating, by the way, is now going on in the United Kingdom, where the Conservative-Liberal government is struggling over a deepening of reform of the House of Lords that was begun under the older Labour government.

It’s worth noting that other countries — and one of the points that Sandy makes in Framed is that we can also look outside our borders to enliven out thinking on the structural constitution — give examples of how to go about major structural reforms.

Sanford Levinson July 29th, 2012 at 3:09 pm
In response to tjbs @ 43

Impeachment has proved a failure, not least because it’s been monopolized by lawyers who are interested only in what counts as a “high crime and misdemeanor.” I strongly believe that we should be able to fire presidents in whom we lose confidence, with regard to basic issues of war and peace, life and death, by, say, a 2/3 vote of the two Houses of Congress assembled together. (If we had such a procedure, I’d be more open to frequent suggestions that we’d be better off with a president who had a single term of 6 to 8 years and was not, therefore, engaged in the “permament campaign” of fundraising and pandering.)

I also confess to having mixed feelings about “recall” procedures, which we saw played out in Wisconsin last month. On a number of these issues, I do not have at all settled views. I do believe strongly that they should be the subject of a national debate, and that is what I think is so lacking in today’s US. Instead, we are fixated on the merits or demerits of particular “leaders” or political parties, and not at all on the institutional structures within which they operate and that generate the incentives and disincentives for their behavior.

Starbuck July 29th, 2012 at 3:12 pm

Thank you, it does. But yet, I is my understanding that the Senate in the way it exists was created to do just what you despise.

I agree that a second house would have to be a restructured version and would have to split some hairs between cronyism generated by appointments to affirmative action by smaller states. I’m a resident of one of them and formerly a resident of a much larger one. I appreciate what can happen when we have a smaller group deliberating law countering the weight of a larger wild west type the House tends to be, no matter that the leaders come from a smaller state.

Sanford Levinson July 29th, 2012 at 3:13 pm
In response to CTuttle @ 44

This is also a response to Peter: I think that whether we’re really a “single country” is ultimately a matter of social identity. It’s worth taking a look, for example, at Federalist 46, where Madison spells out his belief that what will preserve federalism and state autonomy is the fact, and for him it was a fact, that most people had as their primary political identity state, and not national, membership. And, of course, Robert E. Lee demonstrated the validity of Madison’s observation, with terrible consequences about 70 years later.

I think that what the modern Republican Party has done/is doing is fundamentally delegitimating the national governmkent, save for its national security aspect. We see this clearly with Rick Perry here in Texas, who did allow himself briefly publicly to flirt with secessionist sentiment.

Starbuck July 29th, 2012 at 3:14 pm
In response to Aziz Huq @ 50

I was thinking of the comparison to England as well Aziz. Thanks for bringing it up.

Sanford Levinson July 29th, 2012 at 3:15 pm
In response to Starbuck @ 52

You’re absolutely right that the original Senate was created for “despicable” reasons, i.e., to give small states equal representation. Madison also hated this feature of the Senate, and he defended it only as a “lesser evil” against the “greater evil” of having no Constitution (and new national government) at all. But, for him, it was basically like the compromise over slavery was for others, a “rotten compromise” that had to be paid. (Consider the US alliance with Stalin during World War II.)

Sanford Levinson July 29th, 2012 at 3:17 pm

It’s interesting to look at the extent to which the United Kingdom, unfettered with a classic “written constitution,” has been able to engage in genine reform of their “unwriten constitution,” nowhere more obviously than with regard to the House of Lords.

bmaz July 29th, 2012 at 3:23 pm
In response to Aziz Huq @ 40

Yes, the stability issue looms large, doesn’t it? Say what you will about the infirmities of the US Constitution, and there are many, the still extant symmetry and institution of lasting stability in government are too easily scorned by those demanding change.

To both the host and Dr. Levinson, I suggest that any constitutional system can, and will, be corrupted by representatives in government that are not, at some root center of heart, benevolent as opposed to cravenly concerned with their own election and the monetary means for attaining it. How in the world do you fashion a system that overcomes this and still allows for unabridged (in thought, if not fact) First Amendment freedoms?

Starbuck July 29th, 2012 at 3:26 pm

I have to leave but I want to say this:

I believe the problem is less one of equal representative on a state basis but rather that the Senate should be deliberating questions other than “me too” between the House and Senate. We have had a fine history of distinguished Senators from the smaller states.

Thanks for coming to the Lake, Mr. Levinson.

Peterr July 29th, 2012 at 3:27 pm

Perry is a very good example. More interesting to me is the reaction in some quarters to the Affordable Care Act. “We’re not going to do it!” cry these folks.

It reminds me greatly of 1988, when I lived in Wyoming. At the time, the legislature was considering a bill to raise the drinking age to 21. It wasn’t exactly high on anyone’s agenda in Cheyenne, except for the fact that if the drinking age wasn’t raised, the state would lose its federal highway funds – one of the major sources of revenue in a state with no income tax. I sat in the gallery watching for a couple hours, as member after member railed against the bill, lambasting the folks in DC: “No one in DC is going to tell me how to run my life, raise my kids, or anything else.” And then, almost all of them voted to raise the drinking age.

People like the federal government in times of trial, but find it a convenient target when a bright shiny object is needed to deflect criticism elsewhere. Sam Brownback’s comments about getting federal help during the current drought are quite comical when compared with his otherwise anti-DC rhetoric.

tjbs July 29th, 2012 at 3:28 pm

I think the “governors”, our judges , reps and executives were supposed to be in fear and flux rather than static and unchangeable. Because we don’t fully use a tool doesn’t mean following generations will willingly give up their ultimate control over the :’governors”, elected and appointed.

Aziz Huq July 29th, 2012 at 3:36 pm

Picking up on Peterr’s comment, and on the affordable care act-related debates, I wonder whether Sandy sees ‘federalism’ as a hard-wired feature of the Constitution.

One thing that strikes me when I teach Constitutional Law is how much variety there has been historically in claims of and about what Justice Harlan called “Our Federalism.” As with Sen. Brownback –who might be contrasted with some governors who’ve been more consistent about resisting federal healthcare or stimulus monies (albeit at the cost of their most vulnerable constituents) — understandings of federalism seem to oscillate wildly through time, and even vary dramatically at a single moment.

Think, for example, of the contrasting attitudes one hears from the Republic party today on the relation of federalism to “national security” on the one hand and “immigration” on the other. Those two policy areas seem closely linked to me, and yet they seem conceptually far apart in the current discourse.

one way of asking the question, I guess, is to consider whether federalism is a part of the “settlement” or part of the “conversation”?

Sanford Levinson July 29th, 2012 at 3:37 pm
In response to Aziz Huq @ 40

It may be that the Constitution does a “good enough” job, but that should be the conclusion of an extended inquiry (what is the metric, for example, by which we’re measuring the “enough”?). New Hampshire is interesting in this regard: That state’s constitution invites the electorate to vote every 10 years on whether or not to hold a constitutional convention, and there have been, I think, around 17 such state constitutional conventions. Yet New Hampshire continues to operate under its 1784 constitution (as amended), whereas most states have had multiple constitutions over the past 200 years. So it’s perfectly acceptablel to have a constitution that concludes, “we’re lucky to have this constitution.” The problem is that we’re not having any national conversation at all about constitutional adequacy. We’re assuming what should be the conclusion, that it is “good enough.” And, of course, I don’t think it is.

masaccio July 29th, 2012 at 3:37 pm

I am less worried about the failures of constitutional governance than I am about the abject failure of administrative agencies in rule-making and law enforcement.
Regulatory capture of agencies has made the rule of law a farce.

I think this is symptomatic of a much deeper problem with our polity, and I do not see how we can fix it with a constitutional change. Any thoughts?

bmaz July 29th, 2012 at 3:38 pm

Following up on Peterr @59 and you earlier response @53, I would like to ask about a different Perry. I refer to Perry the litigation on marriage equality. It will soon enough move to the Supreme court, but, apparently, only on the limited states rights based Romer grounds, somewhat shockingly (and bullshittedly in my opinion; should have been straight up suspect class analysis as promulgated by Vaughn Walker) relied on by Steve Reinhardt.

As Perry, the case, emanated out of the initiative process that seems central to your thoughts in the book and position, do you think that have been a positive process? As a born, raised, and bar certified child of the 9th Circuit, where the “Western states” so lay, I wonder about the efficacy of that process. Can you lend some further thoughts in that regard?

DWBartoo July 29th, 2012 at 3:39 pm

Do you find, as you discuss your book, that many are willing to engage in that discussion, or that most people do not yet realize the many structural, and “philosophical”, flaws within the Constitution and the impact of those flaws upon the structure of both government and society?

Basically, my concern is this; while a national discussion and even a convention to consider reworking the structure of the foundational legal and governmental document of the nation, is necessary … that the problems are not sufficiently well understood to allow, as yet, the depth and quality of discussion which that necessity must depend upon, if a successful outcome is to be anticipated.

For instance, actual participatory democracy is little understood in this society … as precious few examples of it exist. How are “the people” to become interested in such an idea?

Frankly, at the moment, how large a percentage of the population of this nation is sufficiently engaged and “invested” in “participating” … that many … or a sufficient number of human beings might see the value in spending more time and effort upon the life and death decisions, which many are too willing, apparently even now, to turn over to a corrupted political class?


Sanford Levinson July 29th, 2012 at 3:41 pm
In response to Aziz Huq @ 61

This is another great question. I have a long chapter on “federalism” in the book, and I conclude that remarkably little about federalism is “settled,” even in terms of what Madison might have termed “parchment barriers” of assignments of power. Thus a number of constitutions abroad very explicitly guarantee states the right to make final decisions on matters of language, religion, education, or the disposal of certain natural resources (which are rarely distributed equally throughout a country’s territory). Our Constitution, on the other hand, says nothing at all about such matters. Any protected realms for state decisionmaking basically have to be imferred from the ostensible “assignment of powers” in Article I, Section 8, and one might paraphrase Sarah Palin to say that we know how well (or not) that has worked out over our history, beginning with McCulloch v. Maryland (1819) and its endorsement of a very powerful national government indeed.

Sanford Levinson July 29th, 2012 at 3:43 pm
In response to masaccio @ 63

As one might expect with a constitution drafted in 1787, it has nothing at all to say about the modern administrative state. There is an esoteric debate among some professors about the constituitonality of the Federal Reserve Board, given its (relative) independence of the allegedly “unitary executive,” but even Scalia has conceded, without explanation, that the modern administrative state is here to stay. Many foreign constitutions have provisions concerning their central banks, or the broader administrative state. I don’t have firm views on this; it’s simply another topic I’d like to see brought up on C-Span in a new convention.

Sanford Levinson July 29th, 2012 at 3:45 pm
In response to DWBartoo @ 65

The answer to the last part of this comment is, of course, “very few.” I suppose that I have become sometning of a crank on this issue, because I am so frustrated that neither national leaders nor even very good pundits–I discuss Tom Friedman in my book–”connect the dots” between what they often call the “dysfunctional” American political system and the decisions made in Philadelphia long ago.

Sanford Levinson July 29th, 2012 at 3:49 pm

I didn’t respond adequately to an earlier posting by Aziz that raised the specter or Robert Michels and the “iron law or oligarchy.” That’s certainly something to be concerned about, especially given the ever more important role of big–really big–money in politics. Michels was writing primarily about leaders of ostensibly “democratic” institutions like labor unions, suggesting they’d ultimately be dominated by their leaders. I don’t know to what extent he was suggesting that the entiree political system would ultimately be available for purchase by a classic economic oligarchy. But surely we should do what we can to avoid going down the road of Berlusconi’s Italy or modern Russia. (I presume that Aziz agrees!)

bmaz July 29th, 2012 at 3:52 pm

How do you homologize that statement with the 9th Amendment?

Aziz Huq July 29th, 2012 at 3:54 pm

Indeed–I am no fan of Berlusconi’s Italy or Putin’s Russia. I wonder whether a Michel-like concern, though, might tily against seeking big structural change now.

One of the pull quotes on the jacket of Framed is by the Yale political scientist Jacob Hacker, who has written some very insightful books over the past decade (along with Paul Pierson) pointing out how dramatically both wealth inequality and the allocation of risk has changed in the last four decades. Briefly, inequality has shot up since 1970, while the amount of risk that the poor in particular bear has skyrocketed. This means that we’re in a period — perhaps short, perhaps long — in which the wealthy have an awful lot of power.

This might suggest that is a poor time to proceed with fundamental change, since there’s a particularly high risk of ‘capture’ (e.g., by advertising and campaigning directed at delegates, much like other political campaigning is directed at swing voters today), and so we ought to address economic equalities firsy=t.

BevW July 29th, 2012 at 3:56 pm

As we come to the end of this great Book Salon discussion,

Sandy, Thank you for stopping by the Lake and spending the afternoon with us discussing your new book and all the different Constitutions and their effects on our daily lives.

Aziz, Thank you very much for Hosting this great Book Salon.

Thanks all, Have a great week.

If you would like to contact the FDL Book Salon: FiredoglakeBookSalon@gmail.com

Sanford Levinson July 29th, 2012 at 3:58 pm
In response to Aziz Huq @ 71

This is why I am such a fan of Fishkin’s approach. I think that much of the fear of “capture” dissipates if the convention is made up of fellow citizens chosen at random.

In addition, one virtue of discussions about structure is that we really have no idea who will be benefitted or burdened so long as the changes don’t go into effect immediately. Thus, we can talk about the merits or demerits of allowing any president elected in 2020 or even 2016 to have the veto power without its simply being a proxy for our political sympathies. I think that could be true for a fair number, even if not all, of the structural issues.

Sanford Levinson July 29th, 2012 at 3:58 pm
In response to BevW @ 72

The gratitude is mine.

CTuttle July 29th, 2012 at 4:04 pm

Mahalo nui loa, Profs, and Bev for this excellent Book Salon…! *g*

DWBartoo July 29th, 2012 at 4:05 pm

Thank you for your response.

This has been an interesting Book Salon.

I am left with the concern that the next US Constitutional Convention will be much like the first.

A group of elites, who “understand” the problems will assemble to tell the many what the nature of those “problems” are, what the “solutions” should be, and that the “outcome” shall turn out to be, over time, much as it is today.

Understand, I have spent decades searching for the words to describe, successfully, our common plight of failed, deliberately and intentionally, so far as I am concerned, “systems”, economic, political, and legal … etc.

I am not certain such words exist, Sandy, but I thank you for trying.

Perhaps only total collapse will suffice to “educate” the many. The few already have what “they” want.

So, neither the many, yet, nor the few … ever, are prepared to embrace the changes to documents AND minds, that our continued survival depends upon.

My thanks to Aziz.

To Bev, as always.

And to all the Firedogs, whether in “attendance”, or not.


bmaz July 29th, 2012 at 4:10 pm

To Dr. Sandy Levinson @74:

Well, if that is so, perhaps you would be willing to stick around, or come back, and answer some of the many relevant and important questions that were overlooked and/or left unresponded to. They are worth questions deserving of more than blithe dodging that appears to have been the selective response mode you engaged in today. If you have the courage of your convictions sir, stand up and show it.

DWBartoo July 29th, 2012 at 4:14 pm
In response to bmaz @ 77

It would be most useful to further discussion were Sandy to find the time to respond to several unanswered questions, bmaz. Your questions prominent among those deserving considered response.


Daniel Marks July 29th, 2012 at 4:25 pm

Things are changing. Congress is warming to the idea of using conventions before the people are. This is new this week.

Dr. Lawrence Lessig: Single Issue Citizen’s Conventions and Article V Conventions to propose amendments. Dr. Lessig has a new twist on the Convention method described in Article V of the Constitution which is open to nearly all amendments which include the Supreme Court of the United States. Dr. Lessig is suggesting that Congress might consider a single issue convention with no legal effect to work on solutions to Citizens United alone.

Dr. Lawrence Lessig: Single Issue “Citizen’s Conventions” and Article V Conventions as a method to amend.

Do you have faith we can perform well in an Article V convention if one is called? We can set the ground work for a next phase of change.

Dan Marks

jaxxsonV July 29th, 2012 at 4:28 pm
In response to bmaz @ 77

There are times when it might be impossible to make a grand entry during the closing moments of the party and still be recognized as the most beautiful person present, should that even be the fact.

bmaz July 29th, 2012 at 4:37 pm
In response to jaxxsonV @ 80

Heh, well, I did indeed come in late, but still it was with 40 minutes left in the allotted time. Others, such as Peterr, but several other folks overall, had posited very good questions from the start. They were either avoided completely, or sloughed off with platitudinal pablum that was not worthy of the discussion sought to be had. I doubt Levinson will have the concern or good graces to return for the aftermath, but if he does I want to leave a marker for him.

nonquixote July 29th, 2012 at 5:15 pm
In response to bmaz @ 81

I’m thanking everyone for their input, questions, comments and answers. There are obvious limits to the format. Myself, I could never easily nor quickly follow a couple different tangents emerging off a topic and could quite easily miss adequately addressing anything on any given Sunday afternoon. Thanks again to everyone who participated, I was not able to be here, “live,” today, and do enjoy being able to go back and read at my pace.

Daniel Marks July 29th, 2012 at 5:45 pm

An Article V convention is a legally, constitutionally prescribed method of proposing amendments. Let’s say the states form a convention on their own. Amendments are proposed but no re-write of the constitution passes. The amendments are directly considered and ratified by 38 states. One of the amendments is challenged by one of the other remaining states. SCOTUS says the method of proposal and ratification exceeded the authority and was an illegitimate amendment. SCOTUS nullifies the amendment. The States react poorly. The solution could do more harm than that the problems we seek to correct. If we re-write the entire constitution, it will require the consent of all of the States. I would urge Dr. Levinson to support using this legal method as a prudent step in the process. Our republic requires the democratic participation which has been denied by our Congress. The States have applied over and over. It is time for the convention now.

Indisputable State Applications for Convention

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