Blog :: Undemocratic Constitution?

Recently the Modesto Bee ran an article by Sanford Levinson, Law Professor at the University of Texas at Austin and author of the recent book Our Undemocratic Constitution. I wrote a letter to the editor in response, but it wasn't until after I submitted my letter that I saw the maximum length of 200 words. Brevity has never been one of my faults but I can't adequately disagree with Professor Levinson in 200 words in any case. I decided upon being rejected to post my thoughts here instead. (You can still read the article in question at the LA Times.)

The recent article "Constitution an anti-democratic document" in the) Bee's opinion section by Sanford Levinson struck me as willfully historically ignorant. Levinson criticises various features of the Constitution: notably fixed terms for elected officials, the US Senate (where each state has two Senators regardless of population), the Electoral College, and the relatively static nature of the Constitution itself. All come under attack as "anti-democratic" institutions. Levinson is a Law professor at the University of Texas at Austin and has written multiple books about the Constitution. His knowledge about its details and formation is doubtless encylopedic. His argument, however, does not do justice to the process by which we arrived at our Constitution.

I, on the other hand, am not an expert on the Constitution or the process in which our system of Government was formed. Recently, however, I read "The Essential Federalist" - a selection of excerpts from "The Federalist Papers" along with brief biographies of Alexander Hamilton, James Madison, and John Jay. Written under the psuedonym "Publius", the Federalist Papers are a collection of essays written by three of the founding fathers explaining the reasoning behind many of the provisions of the Constitution. As they explain it, various features of the Constitution are indeed deliberately anti-democratic.

This is a feature, however, not a bug. Fixed periods of service for elected representatives enable strong leadership - sometimes the right thing to do will not be immediately popular and so our Constitution insulates the President, Senators, and (to a lesser degree) Representatives from the immediate displeasure of the populace. Publius displays (and Professor Sanford lacks) a keen understanding of human nature and the way it must be accounted for in crafting institutions for good governance.

Surely Professor Levinson is familiar with the concept of Checks and Balances? Our system of government is built around this idea - the Judiciary, for example, must be the least democratic institution of all (lifetime appointment for judges who make decisions not subject to legislative review) and yet who would want a system of justice based purely upon popular sentiment? Instead the Judiciary serves as a check upon the democratic will of the people in following the Law rather than purely popular opinion.

In fact our system of Government arose from a great deal of careful consideration of the best ways in which to ensure that power resides with the people without imperiling the rights of anyone and aiming for the best outcomes for the nation as a whole. By ignoring that history in making his arguments Professor Levinson does his readers a considerable disservice. I encourage those who might be interested in Professor Levinson's book to read Hamilton, Madison and Jay as well. I suspect most will find the original authors, rather than current critics, most convincing.

Posted on November 10th 2006, 05:15 PM