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]