Bench Memos

“Imbecility” or Limited Government?

University of Texas law professor Sanford Levinson is back with a new book, which he hawked in yesterday’s New York Times.  Bench Memos readers with good memories for trivia will recall that a half dozen years ago, on the occasion of his previous foray into the everything-that’s-wrong-with-America market for book sales, I declared that I would not buy and read the book he published then, the reason being that all his arguments appeared to be tired old rehashings of Progressive Era discontent with the structures that limit American government for the sake of liberty.

I don’t think I will read this one, either.  For one thing, Sandy tries to steal a base just as soon as he starts.  Here are his first two paragraphs:

Advocating the adoption of the new Constitution drafted in Philadelphia, the authors of “The Federalist Papers” mocked the “imbecility” of the weak central government created by the Articles of Confederation.

Nearly 225 years later, critics 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.

Yeah, yeah, it’s just the quickie newspaper version of the book’s argument.  But who are these “critics across the spectrum” who say that our political system is “dysfunctional, even pathological”?  When a liberal says our government is “dysfunctional,” what he invariably means is that it does not vigorously churn out the sorts of egalitarian, freedom-destroying legislation that will propel us (even more quickly) in the direction Europe has already traveled.  When conservatives contemplate what a liberal means by “functional,” we say “bring on the dysfunction, baby!”  The American system’s separation of powers, checks and balances, bicameralism, federalism, and pluralism routinely result in the government’s utter failure to get anything done.  Thank goodness.  While there are important things that need doing, nearly all of them fall in the category of “undoings”–undoing the achievements of all that “functional” government liberals love, which have made us less wealthy and less free.

All the telltale signs are there that Sandy wants the standard-issue liberal results of “functional” government.  He hates “gridlock,” for instance, one of the great blessings to liberty.  But I’ll grant him the credit–if that’s the word I want–for thinking farther outside the box than most of his confreres.  He would like, for one thing to “permit each newly elected president to appoint 50 members of the House and 10 members of the Senate, all to serve four-year terms until the next presidential election.”  This could be a candidate for worst constitutional idea of the decade, but Sandy is spry, and may come up with something worse before 2020.

There are apparent tensions within Sandy’s ideas this time around.  While he praises “direct democracy” and thinks we should have more of it, and also likes how much easier it is to amend state constitutions than the federal constitution, he betrays a bit of uneasiness when he mentions the idea of “constitutional amendment at the ballot box.”  California has been a pioneer in this respect, but Sandy calls it “the only state with a constitution more dysfunctional than that of the United State.”  I might agree with him, but I doubt we’d have the same reason.  Could it be that he is thinking of California and the other 31 states where popular majorities have protected marriage by amending constitutions?  In any event, while it’s important to consider how difficult to make an amendment process, the business of constitution-making and amending is the clearest case of all for direct reference to the people’s will.  That’s why the Constitution was referred to specially elected ratifying conventions, a process that Article V still permits as an alternative to state legislatures (and which has been used once for a federal constitutional amendment).

I should close on a positive note, so here’s one.  Right or wrong–and I think he is, consistently, badly wrong–Sandy Levinson deserves high marks for honesty.  He really despises the U.S. Constitution, and he has never been afraid to say so.  Nowadays the academy is full of scholars who hate the real Constitution, but who put on a show of praising its “living” principles, trying to persuade students, judges, and the general public that the document means things no sensible person would ever have dreamed of imputing to it.  So here’s to you, Sandy.  I doubt I will read your book, but I salute your integrity.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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