National Scripture?

Despite its deliberately provocative and somewhat silly title, a recent article by UT Austin professor Sanford Levinson in The New York Times this week raises serious questions about the state of the U.S. Constitution.

The article is entitled “Our Imbecilic Constitution,” drawing on a term applied in the Federalist Papers to the now-defunct Articles of Confederation, America’s initial constitution.

Levinson, a professor of law and political science, suggests that our current Constitution is in need of reform, in part because it is out-of-date and in part because it was flawed from the beginning. Fans of the U.S. Constitution will argue that the document was wisely crafted to change gradually with the times, through the amendment process.

Levinson, who has written a new book called Framed: America’s 51 Constitutions and the Crisis of Governance, says it is incredibly hard to amend the federal Constitution, and because we are in an era of rapid change, it is impossible for the document to keep up with the times.

He says:

[C]ritics across the spectrum call the American political system dysfunctional, even pathological. What they don’t mention, though, is the role of the Constitution itself in generating the pathology…. Consider that, although a majority of Americans since World War II have registered opposition to the Electoral College, we will participate this year in yet another election that “battleground states” will dominate while the three largest states will be largely ignored. 

Our vaunted system of “separation of powers” and “checks and balances” — a legacy of the founders’ mistrust of “factions” — means that we rarely have anything that can truly be described as a “government.”

The worst part of the Constitution, he thinks, is Article V, which governs the amendment process. In Levinson’s view, the last significant amendment to the Constitution was the 22^nd, ratified in 1951, limiting the president to two terms.

While some consider the U.S. Constitution a “sacred” document, on the order of a national “scripture,” Levinson observes:

It was not always so. In the election of 1912, two presidents — past and future — seriously questioned the adequacy of the Constitution. Theodore Roosevelt would have allowed Congress to override Supreme Court decisions invalidating federal laws, while Woodrow Wilson basically supported a parliamentary system and, as president, tried to act more as a prime minister than as an agent of Congress. The next few years saw the enactment of amendments establishing the legitimacy of the federal income tax, direct election of senators, Prohibition and women’s right to vote. No such debate is likely to take place between Barack Obama and Mitt Romney. They, like most contemporary Americans, have seemingly lost their capacity for thinking seriously about the extent to which the Constitution serves us well. Instead, the Constitution is enveloped in near religious veneration. (Indeed, Mormon theology treats it as God-given.)

He suggests a number of possible approaches to reform, which you can examine for yourself.

Levinson doesn’t think we need to act as dramatically as we did with the Articles of Confederation – e.g., calling a new Constitutional Convention – but he does believe “we are long overdue for a serious discussion about its own role in creating the depressed (and depressing) state of American politics.”