The Imbecilic Constitution of Sanford Levinson

In Sanford Levinson’s scattershot attack on what he calls our “imbecilic” Constitution, he relies on an admixture of demonstrably false empirical claims, sloppy history, and half-baked political theorizing. He begins by claiming that “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.” Mr. Levinson clearly hasn’t been to any Tea Party rallies over the last several years, where hundreds and sometimes thousands of people gather to express their displeasure at the state of our politics, yet proudly carry copies of the Constitution tucked under their arms. They have made the determination that the Constitution is the solution to our problem—certainly not the problem itself. For them—and for many others—the dysfunction we experience stems from the willful refusal on the part of politicians and judges to take the Constitution’s plain language seriously. That is not a determination Mr. Levinson would agree with, but his claim that people nowadays are not mentioning the role of the Constitution is absurd.

My sense is that the Founders’ Constitution is being taken more seriously by more people nowadays than it has been at any time over the past half century or so. This is not to say there are not many battles still to be fought and won, but simply that the language of the Constitution now inspires the troops—whether in the pushback against Obamacare, the preservation of fundamental Second Amendment rights, or a more generalized antipathy to politicians who seem ignorant of the fact that the Constitution limits the federal government to a set of enumerated powers.

In condemning the Constitution for helping to “entranch” chattel slavery, Mr. Levinson confuses the compromises of the Constitution with its principles, but even its principles rub him the wrong way. He is at one with much of progressive thought in his call for a kind of mass democracy, consisting of a federal government unencumbered by the messy business of dealing with sovereign states. And he expresses the characteristically progressive frustration that our system of separation of powers and checks and balances prevents the formation of a “government,” by which he apparently means a unification of the executive and legislative branches for the purposes of efficiently passing legislation, as if the passage of legislation is itself the hallmark of good government. What Mayor Bloomberg notes of soft drinks is also true of legislation: more is not better.

He wishes too for a more straightforward amendment formula, presumably dissatisfied with the stunning speed with which courts continue to amend the Constitution through the promiscuous minting of new rights and entitlements which are alien to the document, and to our representatives elected according to its enduring terms. For many thoughtful Americans, our goal should be to slow the process of constitutional amendment, not accelerate it.

In rejecting the need for veneration of the Constitution,  and encouraging a careless populism hostile to it, Mr. Levinson takes direct aim at James Madison’s claim, in Federalist49, that “as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.” Mr. Levinson would be well advised to take a page from the Tea Party book: be a critic of political dysfunction, but a friend of wise, free, and stable constitutional government.