Bench Memos

NRO’s home for judicial news and analysis.

Books We Decide Not to Read


Law professor Sanford Levinson of the University of Texas has a new book out, titled Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). You’re tired already, aren’t you? Me too. I’m sorry to have to say this, because I enjoy a slight acquaintance with Sandy Levinson, but I will almost certainly never read this book. I have now read an op-ed that Sandy had in Monday’s L.A. Times that retails some of the book’s arguments; another somewhat longer piece he had doing the same in the Chronicle of Higher Education (subscription required); and a review of his book by Cass Sunstein in the October 16 New Republic (ditto). So far I have not encountered an argument from the book that I have not long ago seen floated by others–and completely exploded. In political science, Levinson’s arguments appear to be as shopworn as the works of Woodrow Wilson, and as recently repeated as the bloviations of Robert Dahl in his 2001 book How Democratic Is the Constitution? Sorry, but I can barely stifle the yawn.

Levinson’s catalogue of the Constitution’s offenses against “our own 21st-century norms” of democracy includes such terrible crimes as this: That the president cannot be routinely removed from office, before the expiration of his term, when his ratings plunge in public opinion polls. That Wyoming has as many senators as California. That the electoral college too inflates the voting power of small states, as well as awarding the presidency regularly to men who failed to win a majority of the nationwide popular vote (and, a handful of times, even a plurality of same). That we take two whole months between presidential elections and inaugurations to accomplish the transition of this office, during which time the lame duck president actually gets to keep doing the job of president! That presidential power during emergencies and wars is not strictly enough defined. That the Constitution makes inadequate provision for the prospect of the calamitous death of many or most members of Congress, further empowering the executive in such an event. That Supreme Court justices serve for life and can often time their retirements to suit their own political preferences. That the Constitution is too darned hard to amend (Levinson’s solution: hold an extra-constitutional convention, scrap it, and start over). Aren’tcha just boiling mad? Me neither.

In his brief article-versions of the book’s argument, Levinson’s “evidence” that our straits are dire is that polls show lots of Americans “believe the country is headed in the . . . wrong direction,” from which he concludes that this is owing to the “defects of our polity . . . in the Constitution itself.” To the question, what the heck kind of evidence is that, Levinson might respond, “Matt, read the book!” But I don’t really ask for too much from a short opinion piece. All I want is some surface plausibility that the alleged problems are real ones, and that their cause might lie where the author claims. And I just don’t see either of those here.

The truth is that Sandy Levinson doesn’t really have–on the evidence I’ve seen–an argument that the Constitution violates democratic norms. What he has is a set of dissatisfactions–which don’t quite rise to the level of arguments–with federalism and the separation of powers. This is by now an ancient, wheezing codger of a notion, shambling around the blind alleys of American political science since Woodrow Wilson’s day. Buried in the past by cogent defenders of our constitutional order such as the late Martin Diamond, it now rises like the “undead” in horror films to roam the land again. Been there, refuted that. I won’t be buying this book.

I’ll give Sandy just one thing in the catalogue above. I too am unhappy with the life tenure of federal judges, particularly Supreme Court justices. But there are two possible solutions to that problem. One is to reform the Constitution to give them fixed terms. The other is to persuade them to stop heeding the arguments of law professors like Sandy Levinson. I will readily admit that the first solution might be easier.


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