Our Undemocratic Constitution: Where the Constitution Goes Wrong

by Sanford Levinson

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.

Genres: Politics, Nonfiction, History, Law, Political Science

248 pages, Hardcover

First published January 1, 2006

About the author

Sanford Victor Levinson is a prominent American liberal law professor and acknowledged expert on Constitutional law and legal scholar and professor of government at the University of Texas Law School. He is notable for his criticism of the United States Constitution as well as excessive presidential power and has been widely quoted on such topics as the Second Amendment, gay marriage, nominations to the Supreme Court, and other legal issues. He has called for a Second Constitutional Convention of the United States.

Reviews

[Max Edwards · Rating 3 out of 5]

Key takeaway: Remove the senate and the electoral college.

Small states have an outsized power of national policy. Every voter should get 1 vote and every citizen in every state should be represented in congress equally. Our current system allows for 30 million people in California to be represented by 2 senators, while half a million people in Wyoming also get 2 senators. This dilutes some people and scales up others. True republican democracy should allow every person an equal say.

If you disagree, then read this book.

[Pat Watt · Rating 2 out of 5]

I didn’t make it through this book, despite being extremely interested in the topic. The author’s turgid prose is positively sleep-inducing. Jay Wexler - where are you when we need you?

[Jim Robles · Rating 2 out of 5]

What a disappointing book: the best thing I can say it that if all you have is a hammer, everything looks like a nail. The seventy-seventh book I have finished this year.

This book really suffers in comparison with "Dead Men Ruling - How to Restore Fiscal Freedom and Rescue Our Future" by C. Eugene Steuerle. Steuerle gets at the root of our problem, while noting that amendment of the U.S. Constitution is not required to fix it. Professor Levinson misses the point, and does not really propose a solution. In addressing the problems identified by Steuerle, European parliamentary systems are not doing any better than we are.

Professor Levinson identifies (p. 49) "two senators for each State," as the problem "that should appall most Americans." After considerable discussion, he seems to conclude (p. 62) that amending this feature, of our Constitution, is impracticable. Could anything be more jejune and otiose than identifying a problem that cannot be solved?

Professor Levinson, in attacking the Electoral College, identifies Abraham Lincoln as the most egregious example of the problem he sees: the election of Abraham Lincoln is apparently, in Professor Levinson's view, a problem we must keep from reoccurring. After some discussion he hopes (p. 87) that we now understand the horror (another Abraham Lincoln!) that our current constitution might "inflict on the United States."

Professor Levinson expresses risible outrage at a number of non-problems, that simply do not need to be solved. The Presidential requirement identified on p. 153 is a very good example of this. His p. 21 "As a practical matter" seems to acknowledge the sheer folly of his approach.

Professor Levinson identifies so many "problems" without providing a recommendation that it is hard to avoid the inference that he envisions an open convention (p. 173). Has it occurred to him that Ted Cruz could be a delegate (p. 174 - 176)? Were we so foolish as to follow Professor Levinson's recommendation, we would be more likely to get Constitutional bans on abortion, gay marriage and fiscal deficits than we would be to address any of his non-problems. Madison's (p. 19) extreme skepticism is well-justified.

p. 17. Jefferson . . . " . . .with a right . . . but none to bind succeeding generation, more than the inhabitants of another country.

This is of course precisely the immorality of our situation, as described by Steuerle.

p. 28. He mentions gerrymandering.

p. 38. . . . the quite remarkable expansions of federal entitlement programs that took place during the Nixon administration . . .

p. 74. It is with regard to Congress that the Constitution is fatally defective.

Not quite.

In is discussion (p. 98 - 99) of "lame ducks," Professor Levinson shows no recognition that that it matters what the law actually says or that we play be established rules. Our President, representatives, etc. are elected for defined terms, which is not until the next election. No politician is going to be in office for ever: it is simply a matter of degree. Between elections and the beginning of the next term, the duly elected are still duly elected.

Professor Levinson's (p. 136) assertion that "no one president would be able to appoint a majority of the court," is only true if Justices serve out their full (proposed) eighteen-year terms. Death or resignation at the right time could change this: this is simply another example of how poorly thought out this book is.

[Brian Cubbage · Rating 4 out of 5]

In this book from 2006, Sanford Levinson presents his brief for why the United States Constitution possesses structural defects which render it inconsistent with democratic ideals. These defects, chief among them the disproportional representation of sparsely-populated states in the Senate and the farce of the Electoral College, are, Levinson argues, unlikely to be remedied by piecemeal amendment, especially since one of the flaws is what he calls the "Article V cage" of the amendment process itself. Levinson's book is a call for a new constitutional convention.

The book was written in 2006, at the height of the legal chaos of the Bush 43 years, but its structural diagnosis is still sound and prescient ten years on. Levinson foresaw the reality of legislative stasis that the Obama years have brought us, a stasis which, Levinson suggests, is not just a feature of partisan politics but is instead enabled by the Constitution itself.

Levinson's argument is clear and well organized, rather like a legal brief (although not overly technical). I really wish that Levinson had devoted more time to a principled argument for his vision of democracy. He states, helpfully, that his task in the book is critical, not constructive, but I suspect that much of the resistance to a new constitutional convention derives from popular fear of democracy, not from some principled preference for present constitutional provisions. Because, admit it: Levinson is right that the Constitution is radically undemocratic. Levinson engages with no critics that suggest otherwise. The real issue is: Why should we jettison the dysfunctional government we have for actual democracy, which, as David Graeber rightly said, we are terrible at because we have no idea what it actually looks like? Why should we trust our current citizenry with actual governance, when a significant share of them would use the opportunity to embrace a demagogue like Trump? Maybe Aristotle is right--God help us--in saying that democracy only works if the character of the populace is of a certain sort, something Jefferson, too, seemed to believe?

Fostering a compelling democratic vision is, I think, the way past that fear. Sadly, though, Levinson doesn't give us such a vision, at least not here.

[Paul Froehlich · Rating 5 out of 5]

Conservatives will find a lot to like in this book. That's because Republicans have become decidedly less supportive of democracy in recent decades than they used to be.

Democratic presidential candidates, after all, have garnered more popular votes than their GOP opponents in seven of the last eight elections. Two of those Republicans who lost the popular vote still got elected thanks to the Electoral College. The white majority among voters is steadily shrinking.

Consequently, Republicans have become suspicious of majority rule. They now staunchly back the Electoral College, unlike an earlier generation who voted to abolish it (Gerald Ford, Bob Dole, and George H.W. Bush, while Nixon endorsed abolition). By contrast, modern Republicans support laws making it harder to vote such as strict voter ID laws, a ban on no-excuse mail voting, shorter periods for early voting and so on. They generally oppose policies making it easier to vote.

So our friends on the right should appreciate a book describing how undemocratic the Constitution was and still is. Of course they'll disagree with the author's perspective that these undemocratic features are paralyzing democracy and ought to be corrected.

Some undemocratic features have been reformed during the last two centuries. For example, the Fifteenth Amendment gave black men the vote, the Seventeenth Amendment allowed voters to elect senators, the Nineteenth Amendment gave women the vote, the Twenty-Third Amendment allowed D.C. residents to vote for president, and the Twenty-Sixth Amendment lowered the voting age to 18.
Conservatives of the ealier era opposed those reforms. They will also oppose future reforms, though they usually support the reforms of previous generation.

So what are the remaining undemocratic features? If a cross section of Americans today were designing a new system of government, it seems unlikely it would include gerrymandering, an electoral college, or the world's most malapportioned legislative body, as the Senate is called. Yet modern conservatives defend those undemocratic features of our government.

Law Professor Sanford Levinson recognizes both the brilliance of the Constitution (COTUS) as well as its shortcomings. This book is about the latter.

The malapportioned Senate is at the top of his list. Giving two senators to every state has always meant magnifying the representation of states with small populations. But the disparity in 1787 between the largest and smalllest state (Virginia and Delaware) was 14 to 1, i.e. Virginia's population was 14 times larger. The disparity has been steadily growing. Today, California is seventy times larger than the smallest state, Wyoming. That disparity will continue to widen, which -- for those who favor majority rule -- makes the "great compromise" much less defensible than it originally was.

The majority of Americans now live in the 10 most populous states, yet they have just one-fifth of the vote in the US Senate. Two-thirds of Americans live in the 15 most populous states, but have only 30 percent of the senators. A majority of senators come from states with less than 20 percent of the population. This maldistribution will continue to worsen over time as there is more population growth in the top 15 states than elsewhere.

The great compromise in 1787 gave every state equal representation, contrary to the democratic principle of one person, one vote.
The reasons for compromises required in 1787 no longer exist. So Levinson asks if we should be bound in perpetuity to bad compromises that have steadily gotten worse? The conservative answer is predictable, since Republicans have better odds of controlling the Senate as currently structured.

Second on Levinson's list is the Electoral College, which twice in the past 20 years allowed the popular vote loser to win the election. Though Biden garnered seven million more popular votes, had Trump gotten a total of 44,000 more votes in three swing states -- Arizona, Georgia and Wisconsin -- he would've been elected. That's because he and Biden would've tied in electoral votes at 269, and the House would've elected the president, with each state having one vote, and the GOP controlling 26 state delegations.

The prospects are for outcomes such as in 2000 and 2016 to become more frequent as time goes on. One consequence of the Electoral College is that 16 of the last 20 (80%)  SCOTUS justices were chosen by Republican presidents, even though Democrats have won the popular vote in seven of the previous eight presidential  elections

These and half a dozen other items on Levinson's list have contributed to public frustration with, and lack of confidence in, the federal government. Current officeholders aren't solely responsible, since this lack of confidence has persisted over several decades. It's the basic governmental structure, argues Levinson, that causes the dysfunction.

Levinson wants to emulate Illinois and 13 other states that periodically place a binding referendum on the ballot asking voters whether or not to convene a constltutional convention (Con-Con) to revise their state constitution. Almost every state has replaced its original state constitution, and some states have done so numerous times. Of course these Con-Con referendums are explicitly authorized by those constitutions, while no national referendum is even mentioned in the COTUS.

Even if the high obstacles to such a national referendum could be overcome, there is a good chance most Americans would reject a Con-Con. The Illinois experience is relevant in this regard. Every 20 years since 1968, when the last Con-Con was approved, voters have been asked about a Con-Con. Despite general dissatisfaction with state government, voters have overwhelmingly said no both times. That's because of the opposition from both parties, from business and labor, and from many liberals and conservatives. All sides fear they have more to lose than to gain. The lack of confidence in state elected officials enhances that fear.

A final barrier is that even if a majority of voters did approve a Con-Con, and even if the Con-Con agreed on proposed amendments, voters in at least 38 states would have to be persuaded to approve them, according to Article V. In short, the Levinson proposal is at best a real long shot.

Levinson contends that the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today. "As a practical matter, Article V makes it next to impossible to amend the Constitution with regard to genuinely controversial issues, even if substantial—and intense—majorities advocate amendment."

In the absence of a national referendum, Levinson wants to lead a national movement to call for a Con-Con, which Congress must do if petitioned by two-thirds of the states. This proposal also faces daunting barriers, not the least of which is our current hyper-partisanship that prevents cross-party cooperation.

In sum, I agree with Levinson's diagnosis of the problem. I just find highly unrealistic his prescrIption for fixing them. ###

[Kevinw2614 · Rating 4 out of 5]

Nearly every middle schooler in America is fed the civics Kool-Aid praising our unique Constitution for its federalist, rights-respecting, and compromise-driven text. At least from personal experience, I was taught that the birth of the Senate and electoral college as a compromise between large and small states justified their potentially unrepresentative nature. Never once as a child did I question the sense of allowing the loser of the presidential popular vote to become president. Never once did I challenge the wisdom behind giving a Wyoming voter almost twenty-two times my own voting power.

This book is an excellent dive into why we ought to seriously question our governing institutions that, at the time, were made for a country nearly 80 times smaller in population and utterly failed to consider the interests of anyone other than white men. Levinson thoroughly considers reasons, both of the Framers and of contemporary defenders, to uphold various aspects of our constitutional system. He does an excellent job juxtaposing the Founding Fathers' historical context with our own and showing how while some aspects of our constitutional design made sense in the eighteenth-century, our modern world no longer necessitates grossly unrepresentative or questionable institutions; worshippers of the Founding era will not come away too offended.

Levinson persuasively utilizes the historical record to prove his points. For those seeking a greater emphasis on normative philosophical argument, this book is relatively light on it. Given Levinson's audience, it's probably because he wanted his readers to stay awake. Plenty of theory can be found on Google Scholar anyways.

[John · Rating 2 out of 5]

It's unfortunate that this book wasn't very good -- b/c it raises very important issues. Our Constitution just doesn't work that well in a number of deep structural ways. Why even have a Senate? And if so, why give Wyoming the same number of Senators as California (which has 66 times more people).

My take was that he rushed this. But it's still arguably worth reading just to get a sense of the defects

[Greg Brown · Rating 4 out of 5]

Interesting book from 2006 that’s remarkable for how milquetoast it feels today.

That said, the criticisms levied here have continued to bedevil us and often gotten worse in the years since. For perspective, the book was written before McConnell started leading Senate Republicans, before reconciliation became the main way budgets and policy gets passed (outside of dogshit moral panic legislation). The Senate is wildly unrepresentative, the House is gerrymandered to shit, and the Electoral College is only good for TV stations in swing-states.

If anything, many of the “radical” changes breached here almost feel insufficient to the challenges we’ve faced over the last two decades. That said, because constitutional changes seem off-the-table, we often underrate how changes could genuinely improve many of the underlying issues.

The political sphere is rightly viewed as downstream of the economic sphere, but that’s only because how we’ve demarcated the two—which, crucially, is a political decision! Any effort to spread democracy more widely through our lives, quashing the threatening whims of the monied elite, is gonna have to go through the constitution sooner or later. And that’s where we may have to make our case, as a system that everyone agrees sucks can be more fertile to the imagination and feel less no-alternative than capitalism as a whole.

[Mr John Hodgson · Rating 5 out of 5]

The need for reform

I learnt a lot from the book , as a British reader first influenced by the making of the president. I also believe all the issues are relevant , as concerns a democratic government with meaningful roles for the legislature, the executive and the executive. As another starting point, I would suggest focusing on why the separation of powers was embraced in the eighteenth century. In a time of corvid19, the illusory, but also ethical, nature of political choice , demands debate. As also the call to a hopefully neutral science which is sadly lacking.

[Mike]

This is a somewhat tricky book to assign a rating to. On the one hand, it offers a good enough introduction to the constitutional critique and its anti-democratic nature, albeit from an explicitly liberal perspective. On the other hand, it is very much draped in the colors of patriotism and many of the first hand examples, while still easily illustrative, appear dated (the book was published in 2006).

[Herbert A. Joseph · Rating 4 out of 5]

A thorough introduction to the core of our political systems and institutions.

-Levinson writes frankly and concisely, presenting reasoned considerations for constitutional reform.
-this book is an excellent starting point for anyone who is politically inclined

[Matthew Cav · Rating 4 out of 5]

I read this for school. It is well-argued and coherent. So well-argued, in fact, that one feels a bit disheartened about American politics upon completion.

[Newmankw · Rating 3 out of 5]

Some really interesting ideas. Not the most well written book ever but a good read for political science nerds like myself.

[Michael Schafer · Rating 5 out of 5]

An interesting, multi-prong argument for a constitutional convention to remove undemocratic aspects of the Constitution.

[Emy · Rating 4 out of 5]

Outlines what we've all been thinking. Would recommend to blind nationalists

[Dawn Fielder · Rating 5 out of 5]

An interesting look at the issues of our constitution. It was thought provoking and balanced. I greatly enjoyed the read.

[Thomas Routson · Rating 4 out of 5]

This book is so hopeful and insightful. But it’s hard to imagine how these goals can be realized in our lifetime without an actual revolution.

[Layne-Grace A · Rating 4 out of 5]

This diva…

[Ashley · Rating 2 out of 5]

2.5 Stars
14th Book of 2020

My review of Our Undemocratic Constitution may be more biased than usual due to the fact that my personal views are basically diametrically opposed to Levinson's entire argument; however, even from a more objective perspective I did not find his points to be particularly convincing. Levinson does point out, validly, undemocratic aspects of the Constitution, yet in doing so he does not adequately address that our nation is not a democracy, but a republic. (Therefore, the seemingly disproportionate power of small states, while often excessive, is not a constitutional defect but a constitutionally-intended phenomenon.) Furthermore, the "undemocratic" constitutional strictures he considers egregious are problematic primarily due to the fallibility of human nature rather than constitutional constraints themselves.

Overall, I enjoyed reading Levinson's thoughts, but his arguments were ultimately not substantial enough to sway me. I appreciated and agree with Levinson's point that the Constitution should not be blindly revered, but Levinson almost seems to provoke a revolution against the Constitution for the mere novelty of the movement rather than a need to make lasting and meaningful change. That, I think, is where he really lost me.

[Tom Sulcer · Rating 5 out of 5]

Levinson's excellent book is an on-target analysis of flaws with the current Constitution. His list of flaws with the current Constitution is smart: woeful allocation of power in the Senate favoring rural states; excessive presidential power; risk of dictatorship following a catastrophic attack on Congress; confusing electoral college system; inability to dump an incompetent or ill president; functional inability to amend the Constitution; life tenure for Supreme Court justices; creation of second class citizens.

Levinson presents a balanced, non-partisan look focusing on the structural problems with the current Constitution, wisely avoiding difficult and polarizing issues such as abortion or religion. His book is excellent. Levinson calls for a Second Constitutional Convention.

So I summoned a Constitutional Convention. It will convene beginning July 4th, 2009, at Independence Hall in Philadelphia. I chose delegates from the political, business, academic, and media elite, because I think these persons are the only ones capable of intelligent action -- ordinary citizens are unable to cause change, in my view. I hope my delegates will be motivated to fix things, because they will lose the most if America falls.

I think the political process is broken. Washington is corrupt. Congress is gridlocked. Levinson explains there is a dangerous concentration of power in the presidency (and he's right), but he doesn't explain adequately how this happened. The federal system is broken -- ideally state governments should regulate their own economies, but Washington has usurped this power through numerous rulings often by the Supreme Court (Levinson doesn't focus much on this aspect). And this body of unelected justices has, in many respects, assumed a quasi-legislative role, which was never intended by the Constitution's Framers, because it has the power to strike down any law it deems unconstitutional. Levinson's suggestion that Supreme Court justices have limited terms (perhaps 15 or 18 years) is wise, but I think the problem is deeper. Washington is like a giant crashed computer, unresponsive to keystrokes, and unable to cope with serious issues such as Social Security underfunding, the specter of terrorism, financial meltdowns, global warming, corruption, lobbying running rampant, and so on.

Americans should heed Levinson but also read "The American Lie" by Benjamin Ginsberg; "The Politically Incorrect Guide to the Constitution" by Kevin R. C. Gutzman; "Common Sense II: How to Prevent the Three Types of Terrorism" by myself; "Up To Our Eyeballs" by several authors; "How America Got It Right" by Bevin Alexander (a tough critique of American foreign policy despite the positive-sounding title). These are tough, non-partisan looks at a nation in deep denial. What I offer, in my book, is a strategy for what to do. Levinson doesn't. He's a complainer. I'm a fixer. Another great book: "The Structural Transformation of the Public Sphere" by Jurgen Habermas. (note: difficult reading but worth it).

At this point, I think America needs a new Constitution based on the existing one which: (1) prevents crime, tyranny, and foreign terrorism (2) restores citizenship as an active relationship between individual and government (3) brings back the federal structure where state governments have the most authority in regulating their respective economies (4) fixes the architecture of government to permit intelligent and long-range foreign policy (5) identifies movement in public (to thwart terrorism) while preserving privacy (6) de-politicizes the Supreme Court (7) limits factionalism.

[Brian · Rating 3 out of 5]

Great book. It's long past time we take a critical eye to our Constitution to find areas of improvement. The Constitution is a great document, but not a perfect one. Let's make it better!

[Sylvia Moore · Rating 5 out of 5]

If you grew up in America, you're pretty much raised worshipping the Constitution. I wanted to read this book, because lately, I've had a lot of misgivings about our country's founding document. Over the years, I, like many on the left wonder why it has been so difficult to pass truly progressive legislation. I first thought it had everything to do with the media and how people are getting the kind of information they need from news sources to make sound decisions. Then, I thought the root cause of our problems was money in politics. But through reading articles and thinking about the unique structure of our political system, I've come to the conclusion that bad media and money in politics are symptoms of an archaic and thoroughly un-modern democracy. America's political system is the horse and buggy compared with the systems of other developed nations.This book validates my new-found criticism of the Constitution. I whole-heartedly agree with the author: it's time to stop venerating this flawed document and call for a constitutional convention to re-write the thing. I think every American ought to read this book. It will challenge nearly everything you've been taught.

[Tim · Rating 5 out of 5]

The title does a good job of describing Levinson's purpose, an argument for a new Constitutional Convention to create a workable and truly democratic form of government. I do not need much in the way of convincing about the faults of the Constitution, both from the start and how it has worked out in history, so I cannot speak to how this would read to the unconverted. His criticism focuses on the legislative process and bicameralism, both the existence and the structure of the Senate, the Electoral College, Presidential power and the inability to recall incompetent leaders, life term for Supreme Court justices, the difficultly in amending the Constitution, and many smaller points. He argues strongly but without malice. I appreciate especially his movement to desanctify the Constitution, to remove its status as holy writ (standing in company [if not always good company] with Thomas Jefferson). Sign me up for a referendum.

[Jason · Rating 1 out of 5]

If the solution that he presents to fix the infrastructure of the constitution where implemented, then why have a constitution in the first place. This man was thinking to much, maybe he needs to retire. He lost his sense of balance.

[Shavaugn · Rating 5 out of 5]

For anyone who questions the lame duck status of presidents, the life tenure of service for Supreme Court judges, the inability of foreign-born and young Americans to hold certain positions in government, or many other dated provisions of our Constitution, read this book.

[Megan · Rating 4 out of 5]

A legitimate argument to reevaluate our constitution, which has had only one significant amendment since its inception. Levinson makes you question the deeply embedded reverence and sentimentality we have for our constitution 'as-is', which is actually working to hinder democracy in America.

[Mark Flowers · Rating 5 out of 5]

I don't agree with everything that Levinson has to say, but his basic premise that the Constitution is structurally undemocratic is sound, and everything he says is at least worth thinking about.

[Sue · Rating 1 out of 5]

As dry as the Sahara and Death Valley deserts.