Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It)

The Constitution is one of the most revered documents in American politics. Yet this is a document that regularly places in the White House candidates who did not in fact get a majority of the popular vote. It gives Wyoming the same number of votes as California, which has seventy times the population of the Cowboy State. And it offers the President the power to overrule both houses of Congress on legislation he disagrees with on political grounds. Is this a recipe for a republic that reflects the needs and wants of today's Americans?

Taking a hard look at our much-venerated Constitution, Sanford Levinson here argues that too many of its provisions promote either unjust or ineffective government. Under the existing blueprint, we can neither rid ourselves of incompetent presidents nor assure continuity of government following catastrophic attacks. Less important, perhaps, but certainly problematic, is the appointment of Supreme Court judges for life. Adding insult to injury, the United States Constitution is the most difficult to amend or update of any constitution currently existing in the world today.

Democratic debate leaves few stones unturned, but we tend to take our basic constitutional structures for granted. Levinson boldly challenges the American people to undertake a long overdue public discussion on how they might best reform this most hallowed document and construct a constitution adequate to our democratic values.

"A lucidly written and compelling work, Our Undemocratic Constitution asks hard questions about the nature of our founding document. Levinson, who is one of the nation's leading constitutional scholars, argues here that much about the Constitution stands in need of dramatic change. This is a timely and important book, and our country would benefit if its ideas provoked real debate."--Elena Kagan, Dean, Harvard Law School

"Levinson believes that the Constitution is fundamentally undemocratic, and that a new constitutional convention is necessary to bring forward a better charter. His critical discussion of the founding document is bold, bracingly unromantic, and filled with illuminating insights. He accomplishes an unlikely feat, which is to make a really serious argument for a new constitutional convention, one that is founded squarely on democratic ideals. Levinson has valuably shown that parts of America's founding document are seriously flawed, and he has demonstrated that both representatives and citizens should treat the document not with "sanctimonious reverence" but as the revisable product of fallible human beings."--Cass R. Sunstein, The New Republic

"Clear and emphatic."--Washington Post Book World

"No one doubts that Al Gore got the most votes in 2000, but almost no one feels that this alone means that the presidency was stolen from him. One who does apparently feel that way is Sanford Levinson, [who is] calling for wholesale revision of our nation's founding document. This is admirably gutsy and unfashionable."--Michael Kinsley, The New York Times Book Review

"Admirably gutsy and unfashionable."--Michael Kinsley, The New York Times Book Review

"Everyone who cares about how our government works should read this thoughtful book."--Washington Lawyer

"Levinson locates the flaws of the system in America's founding document itself--the Constitution. His book is compelling because of [his] breadth of erudition and his willingness to propose solutions to the flaws he perceives."--John O. McGinnis, The Wall Street Journal, Northwestern University School of Law

"Sanford Levinson's irreverent tour reveals the subtle and not-so-subtle ways our Constitution blocks the responsible practice of democratic government. We ignore his critique at our peril."--Bruce Ackerman, Yale Law School

"Sanford Levinson is the most imaginative, innovative and provocative constitutional scholar of our time. His new, sharp critique of the Constitution makes for bracing reading and forces us to confront what we really think of the Constitution. Every American needs to read this book and see if he or she agrees with Levinson that it is necessary to abandon the Framer's work and adopt a fundamentally new system of government. This work cannot be ignored."--Walter Dellinger, O'Melveny and Myers, Former Acting Solicitor General of the United States

"In an ideal world, every citizen would read this book and ponder the profound issues it raises about how to achieve democracy in our republic. As Socratic in spirit, as it is engaging in style, this is a marvelous guide to the pros and cons of democratic reform. Take up its invitation to look freshly at institutions you have taken for granted."--James Fishkin, Stanford University

"Few scholars are in the same league with Professor Sanford Levinson when it comes to raising provocative questions about the Constitution and conventional modes of interpreting its provisions. Whether one agrees or disagrees with his analyses and prescriptions is largely beside the point; what matters is that he forces readers to think about dimensions of constitutional questions that ordinarily go unnoticed. In Our Undemocratic Constitution, Professor Levinson is at his thought-provoking best."--Robert P. George, Princeton University

"A lucidly written and compelling work, Our Undemocratic Constitution asks hard questions about the nature of our founding document. Levinson, who is one of the nation's leading constitutional scholars, argues here that much about the Constitution stands in need of dramatic change. This is a timely and important book, and our country would benefit if its ideas provoked real debate."--Elena Kagan, Dean, Harvard Law School

“This book is a delight, and an excellent introduction to The Federalist. Almost anyone, whether beginner or experienced scholar, can benefit from reading Levinson's take on these classic essays."—Jack M. Balkin, Yale Law School

“Sanford Levinson has one of the most original minds in the American legal community, and it is on full display in this wonderful new book.”—Alan Wolfe, Boston College

"Levinson's brilliant short essays do much more than bring extraordinary insight to one of our most important Founding documents. They show how the questions posed by The Federalist are timeless, global and as compelling today as they were when written.  Levinson gives more relevance to The Federalist than it has had since 1788.   Fascinating and important."—Elliot Gerson, The Aspen Institute

“In his new examination of the Federalist Papers, Levinson lays out a powerful case for believing that the Founders, far from thinking government should be constrained, were focused instead on how to give it sufficient power to function effectively. Agree with him or not, Levinson’s is a brilliant and well-constructed brief for rethinking what our Founders were trying to say.”—Former Congressman Mickey Edwards, author of The Parties versus the People: How to Turn Republicans and Democrats into Americans

Levinson argues that too many of our Constitution's provisions promote either unjust or ineffective government. Under the existing blueprint, we can neither rid ourselves of incompetent presidents nor assure continuity of government following catastrophic attacks. Less important, perhaps, but certainly problematic, is the appointment of Supreme Court judges for life. Adding insult to injury, the United States Constitution is the most difficult to amend or update of any constitution currently existing in the world today. Democratic debate leaves few stones unturned, but we tend to take our basic constitutional structures for granted. Levinson boldly challenges the American people to undertake a long overdue public discussion on how they might best reform this most hallowed document and construct a constitution adequate to our democratic values.

"Admirably gutsy and unfashionable."

--Michael Kinsley, The New York Times

"Bold, bracingly unromantic, and filled with illuminating insights. He accomplishes an unlikely feat, which is to make a really serious argument for a new constitutional convention, one that is founded squarely on democratic ideals."

--Cass R. Sunstein, The New Republic

"Everyone who cares about how our government works should read this thoughtful book."

--Washington Lawyer

From one of America’s most distinguished constitutional scholars, an intriguing exploration of America’s most famous political tract and its relevance to today’s politics

In An Argument Open to All, renowned legal scholar Sanford Levinson takes a novel approach to what is perhaps America’s most famous political tract.  Rather than concern himself with the authors as historical figures, or how The Federalist helps us understand the original intent of the framers of the Constitution, Levinson examines each essay for the political wisdom it can offer us today. In eighty-five short essays, each keyed to a different essay in The Federalist, he considers such questions as whether present generations can rethink their constitutional arrangements; how much effort we should exert to preserve America’s traditional culture; and whether The Federalist’s arguments even suggest the desirability of world government.

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. The author of over 200 articles in professional and more popular journals, his books include Constitutional Faith (1988); Written in Stone (1998); Wrestling With Diversity (2003) and the edited volume, Torture: A Collection (Oxford University Press, 2004).

Prelude: The Wisdom of Thomas Jefferson

Introduction: A Tale of Two Signings

1. The Ratification Referendum: Sending the Constitution to a New Convention for Repair

2. Our Undemocratic Legislative Process

3. The Legacy of Article II: Too-Powerful Presidents, Chosen in an Indefensible Process, Who Cannot Be Displaced Even When They Are Manifestly Incompetent

4. Life Tenure for Supreme Court Justices: An Idea Whose Time Has Passed

5. The Constitution as Creator of Second-Class Citizens

6. The Impermeable Article V

7. Disenchantment and Desire: What Is to Be Done?

Coda: The Wisdom of Woodrow Wilson

Appendix: The Constitution of the United States

Notes

Acknowledgments

Index