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Books by Sanford
Levinson
Our Undemocratic Constitution
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Constitutional Faith /
Wrestling with Diversity
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Time to Repair the
Constitution's Flaws
By
Sanford Levinson
The following article by Professor
Sanford Levinson was published in the October 13, 2006
issue of
The Chronicle of Higher Education (Volume 53, Issue
8, Page B10).
In 1987 I went to a
marvelous exhibit in Philadelphia commemorating the
bicentennial of the drafting of the U.S. Constitution.
The exhibit concluded with two scrolls, each with the
same two questions: First, "Will You Sign This
Constitution?" And then, "If you had been in
Independence Hall on September 17, 1787, would you have
endorsed the Constitution?" The second question
emphasized that we were being asked to assess the 1787
Constitution. That was no small matter inasmuch as the
document did not include any of the subsequent
amendments, including the Bill of Rights. Moreover, the
viewer had been made aware in the course of the exhibit
that the Constitution included several terrible
compromises with slavery.
Even in 1987,
because of those compromises I tended to regard the
original Constitution as what the antislavery crusader
William Lloyd Garrison so memorably called "a covenant
with death and an agreement with hell." So why did I
choose to sign the scroll? I was impressed that
Frederick Douglass, the great black abolitionist, after
an initial flirtation with Garrison's rejectionism,
endorsed even the antebellum Constitution. He argued
that, correctly understood, it was deeply antislavery at
its core.
The language of the
Constitution—including, most importantly, its
magnificent preamble—allows us to mount a critique of
slavery, and much else, from within. The Constitution
offers us a language by which we can protect those
rights that we deem important. We need not reject the
Constitution in order to carry on such a conversation.
If the Constitution, at the present time, is viewed as
insufficiently protective of such rights, that is
because of the limited imagination of those interpreters
with the most political power, including members of the
Supreme Court. So I added my signature to the scroll
endorsing the 1787 Constitution.
On July 3, 2003, I
was back in Philadelphia to participate in the grand
opening of the National Constitution Center. The exhibit
culminated in Signers' Hall, which featured life-size
(and lifelike) statues of each of the delegates to the
constitutional convention. As one walked through the
hall and brushed against James Madison, Alexander
Hamilton, and other giants of our history, one could
almost feel the remarkable energy that must have
impressed itself on those actually in Independence Hall.
As was true in
1987, the visitor was invited to join the signers by
adding his or her own signature to the Constitution.
Indeed, the center organized a major project during
September 2003 called "I Signed the Constitution." Sites
in all 50 states were available for such a signing. Both
the temporary 1987 exhibit and the permanent one that
remains at the National Constitution Center leave little
doubt about the proper stance that a citizen should take
toward our founding document.
This time, however,
I rejected the invitation to re-sign the Constitution. I
had not changed my mind that in many ways it offers a
rich, even inspiring, language to envision and defend a
desirable political order. Nor did my decision
necessarily mean that I would have preferred that the
Constitution go down to defeat in the ratification votes
of 1787-88. Rather, I treated the center as asking me
about my level of support for the Constitution today
and, just as important, whether I wished to encourage my
fellow citizens to reaffirm it in a relatively
thoughtless manner. As to the first, I realized that I
had, between 1987 and 2003, become far more concerned
about the inadequacies of the Constitution. As to the
second, I had come to think that it is vitally important
to engage in a national conversation about its adequacy
rather than automatically to assume its fitness for our
own times.
My concern is only
minimally related to the formal rights protected by the
Constitution. Even if, as a practical matter, the
Supreme Court reads the Constitution less protectively
with regard to certain rights than I do, the proper
response is not to reject the Constitution but to work
within it by trying to persuade fellow Americans to
share our views of constitutional possibility and by
supporting presidential candidates who will appoint (and
get through the Senate) judges who will be more open to
better interpretations. Given that much constitutional
interpretation occurs outside the courts, one also wants
public officials at all levels to share one's own
visions of constitutional possibility—as well, of
course, as of constitutional constraints. And that is
true even for readers who disagree with me on what
specific rights are most important.
So what accounts
for my change of views since 1987? The brief answer is
that I have become ever more despondent about many
structural provisions of the Constitution that place
almost insurmountable barriers in the way of any
acceptable contemporary notion of democracy. I put it
that way to acknowledge that "democracy" is most
certainly what political theorists call an "essentially
contested concept." It would be tendentious to claim
that there is only one understanding—such as "numerical
majorities always prevail"—that is consistent with
"democracy." Liberal constitutionalists, for example,
would correctly place certain constraints on what
majorities can do to vulnerable minorities.
That being said, I
believe that it is increasingly difficult to construct a
theory of democratic constitutionalism, applying our own
21st-century norms, that vindicates the Constitution
under which we are governed today. Our 18th-century
ancestors had little trouble integrating slavery and the
rank subordination of women into their conception of a
"republican" political order. That vision of politics is
blessedly long behind us, but the Constitution is not.
It does not deserve rote support from Americans who
properly believe that majority rule, even if tempered by
the recognition of minority rights, is integral to
"consent of the governed."
I invite you to ask
the following questions:
1. Even if
you support having a Senate in addition to a House of
Representatives, do you support as well giving Wyoming
the same number of votes as California, which has
roughly 70 times the population? To the degree that
Congress is in significant ways unrepresentative, we
have less reason to respect it. It is not a cogent
response, incidentally, to say that any such
inequalities are vitiated by the fact that the House of
Representatives is organized on the basis of population,
putting to one side issues raised by partisan
gerrymandering. The very nature of our particular
version of bicameralism, after all, requires that both
houses assent to any legislation. By definition, that
means that the Senate can exercise the equivalent of an
absolute veto power on majoritarian legislation passed
by the House that is deemed too costly to the interests
of the small states that are overrepresented in the
Senate, especially those clustered together in the Rocky
Mountain area and the upper Midwest.
2. Are you
comfortable with an Electoral College that, among other
things, has since World War II placed in the White House
five candidates—Truman, Kennedy, Nixon (1968), Clinton
(1992 and 1996), and Bush (2000)—who did not get a
majority of the popular vote? In at least two of those
elections—in 1960, for which evidence exists that Nixon
would have won a recount, and in 2000—the winners did
not even come in first in the popular vote. The fact is
that presidential candidates and their campaign managers
are not necessarily trying to win the popular vote,
except as an afterthought. Instead they are dedicated to
putting together a coalition of states that will provide
a majority of the electoral votes.
3. Are you
concerned that the president might have too much power,
whether to spy on Americans without any Congressional or
judicial authorization or to frustrate the will of a
majority of both houses of Congress by vetoing
legislation with which he disagrees on political, as
distinguished from constitutional, grounds? At the very
least, it should be clear from recent controversies that
the present Constitution does not offer a clear
understanding of the limits of presidential power,
particularly during times of presidentially perceived
emergencies.
4. Are you
concerned about whether the country is well served by
the extended hiatus between election day and the
presidential inauguration some 10 weeks later, during
which lame-duck presidents retain full legal authority
to make often controversial decisions? Imagine if John
Kerry had won the 2004 election, and President Bush had
continued to make decisions about policy on Iraq, Iran,
and North Korea that would have greatly affected his
administration. Much of the hiatus is explicable only
with regard to the need for the Electoral College to
operate (which serves as an additional reason to
eliminate that dysfunctional institution).
5. Are you
satisfied with a Constitution that, in effect, maximizes
the baleful consequences of certain kinds of terrorist
attacks on the United States? If a successor to United
Flight 93 were to succeed in a catastrophic attack on
the House of Representatives and the Senate, we could
find ourselves in a situation where neither institution
could operate—because the Constitution makes it
impossible to replace disabled (as distinguished from
dead) senators or to fill House vacancies by any process
other than an election. That would contribute to the
overwhelming likelihood of a presidential dictatorship.
The Constitution is written for what is termed "retail"
vacancies, which occur only occasionally and are easily
subject to being handled by the existing rules. Should
"wholesale" vacancies occur, however, the present
Constitution is nothing less than a ticking time bomb.
6. Do you
really want justices on the Supreme Court to serve up to
four decades and, among other things, to be able to time
their resignations to mesh with their own political
preferences as to their successors?
7. Finally,
do you find it "democratic" that 13 legislative houses
in as many states can block constitutional amendments
desired by the overwhelming majority of Americans as
well as, possibly, 86 out of the 99 legislative houses
in the American states? No other country—nor, for that
matter, any of the 50 American states—makes it so
difficult to amend its constitution. Article V of our
Constitution constitutes an iron cage with regard to
changing some of the most important aspects of our
political system. But almost as important is the way
that it also constitutes an iron cage with regard to our
imagination. Because it is so difficult to amend the
Constitution—it seems almost utopian to suggest the
possibility, with regard to anything that is truly
important—citizens are encouraged to believe that change
is almost never desirable, let alone necessary.
One might regard
those questions as raising only theoretical, perhaps
even "aesthetic," objections to our basic institutional
structures if we feel truly satisfied by the outcomes
generated by our national political institutions. But
that is patently not the case. Consider the results when
samples of Americans are asked whether they believe the
country is headed in the right or the wrong direction.
In April 2005, a full 62 percent of the respondents to a
CBS poll indicated that they believed that the country
was headed in "the wrong direction." A year later, a
similar CBS poll found that 71 percent of the
respondents said that the country was "on the wrong
track," with unfavorable ratings for Congress and the
president, and only a slim majority approving of the
Supreme Court. Surely that comprehensive sense of
dissatisfaction is related for most Americans to a
belief that our political institutions are not
adequately responding to the issues at hand. Serious
liberals and conservatives increasingly share an
attitude of profound disquiet about the capacity of our
institutions to meet the problems confronting us as a
society.
To be sure, most
Americans still seem to approve of their particular
members of Congress. The reason for such approval, alas,
may be the representatives' success in bringing home
federally financed pork, which scarcely relates to the
great national and international issues that we might
hope that Congress could confront effectively. In any
event, we should resist the temptation simply to
criticize specific inhabitants of national offices. An
emphasis on the deficiencies of particular officeholders
suggests that the cure for what ails us is simply to win
some elections and replace those officeholders with
presumptively more virtuous officials. But we are
deluding ourselves if we believe that winning elections
is enough to overcome the deficiencies of the American
political system.
We must recognize
that substantial responsibility for the defects of our
polity lies in the Constitution itself. A number of
wrong turns were taken at the time of the initial
drafting of the Constitution, even if for the best of
reasons given the political realities of 1787. Even the
most skilled and admirable leaders may not be able to
overcome the barriers to effective government
constructed by the Constitution. In many ways, we are
like the police officer in Edgar Allen Poe's classic The
Purloined Letter, unable to comprehend the true
importance of what is clearly in front of us.
If I am correct
that the Constitution is both insufficiently democratic,
in a country that professes to believe in democracy, and
significantly dysfunctional, in terms of the quality of
government that we receive, then it follows that we
should no longer express our blind devotion to it. It is
not, as Thomas Jefferson properly suggested, the
equivalent of the Ark of the Covenant. It is a human
creation open to criticism and even to rejection. You
should join me in supporting the call for a new
constitutional convention.
Source:
UTexas
Sanford Victor Levinson (born June
17, 1941) 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.—Wikipedia
This essay is
adapted from
Our Undemocratic Constitution: Where the Constitution
Goes Wrong (And How We the People Can Correct It),
Oxford University Press.
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Sanford Levinson Interviewed by Bill Moyers 21
December 2007
Sanford Levinson: Renewing Democracy—How Much Do
Elections Matter?
The Meritocracy Myth
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Health-care
case brings fight over which Supreme Court justices
should decide it—Robert Barnes—27
November 2011—Just a little more than an hour after
some House Democrats recently demanded an
inquiry into Supreme Court Justice Clarence Thomas’s
ethics, Senate Republicans stepped up the
pressure on Justice Elena Kagan to take herself out
of the court’s decision on the health-care reform
act. The process repeated itself a few days later.
House Judiciary Committee Chairman
Lamar Smith (R-Tex.) called for the release of
more documents about Kagan’s role as President
Obama’s solicitor general; the liberal group People
for the American Way came out with another broadside
against Thomas.
Accusations
about both justices, from the left and the right,
show no signs of dissipating now that the
Supreme Court has said it will review the
constitutionality of Obama’s signature domestic
achievement, the Patient Protection and Affordable
Care Act of 2010. Justices decide for themselves
whether they have a conflict serious enough to
warrant recusal from a specific case, and neither
Kagan nor Thomas appears to be considering sitting
out the biggest case of the term. Federal
law requires judges, including those on the
Supreme Court, to disqualify themselves when their
“impartiality might be reasonably questioned,” as
well as for specific reasons such as a financial
interest or the involvement of a family member in
the litigation.— WashingtonPost
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Maryland
Governor Signs Castle Doctrine Bill—21
May 2010—Delegate
Mike Smigiel—In what amounts to a
stealthy victory for Second Amendment
advocates in Maryland, yesterday, the
Governor signed into law a modified
“Castle Doctrine” bill (SB-411). This
new law will provide civil immunity for
a person defending their dwelling or
place of business. This immunity
provides that the person is not liable
for damages for a personal injury or
death of an individual when protecting
yourself in your home. Maryland added
the proviso that the doctrine only
applies as long as the persons defending
themselves are not convicted of a crime
related to the act for which the
immunity is being sought. Second
Amendment supporters should take hope in
the passage of this modified “Castle
Doctrine.” Not only have we been
successful in defeating anti-second
amendment legislation such as HB-820,
(the registration bill from this past
session), we have been incrementally
advancing pro-Second Amendment bills
into law. These advances are done
without a lot of pomp and circumstance
so as not to draw the attention of the
gun-fearing progressives. |
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So don’t
believe that nothing is being done to recapture the
liberties that the progressives have taken from us.
There have been many such small victories which
receive little or no press coverage. Know that you
can make a difference and that your pro-Second
Amendment legislators are not only killing the bad
bills we are obtaining small victories every
session.—delegatemike
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Allah, Liberty, and Love
The Courage to Reconcile Faith and Freedom
By Irshad Manji
In Allah, Liberty and Love, Irshad Manji paves a path for Muslims and non-Muslims to transcend the fears that stop so many of us from living with honest-to-God integrity: the fear of offending others in a multicultural world as well as the fear of questioning our own communities. Since publishing her international bestseller, The Trouble with Islam Today, Manji has moved from anger to aspiration. She shows how any of us can reconcile faith with freedom and thus discover the Allah of liberty and love—the universal God that loves us enough to give us choices and the capacity to make them. Among the most visible Muslim reformers of our era, Manji draws on her experience in the trenches to share stories that are deeply poignant, frequently funny and always revealing about these morally confused times. What prevents young Muslims, even in the West, from expressing their need for religious reinterpretation? What scares non-Muslims about openly supporting liberal voices within Islam? |
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Confidence Men: Wall Street, Washington, and
the Education of a President
By
Ron Suskind
A new
book offering an insider's account of the
White House's response to the financial
crisis says that U.S. Treasury Secretary Tim
Geithner ignored an order from President
Barack Obama calling for reconstruction of
major banks. According to Pulitzer
Prize-winning author Ron Suskind, the
incident is just one of several in which
Obama struggled with a divided group of
advisers, some of whom he didn't initially
consider for their high-profile roles.
Suskind interviewed more than 200 people,
including Obama, Geithner and other top
officials . . . The book states Geithner and
the Treasury Department ignored a March 2009
order to consider dissolving banking giant
Citigroup while continuing stress tests on
banks, which were burdened with toxic
mortgage assets. . . .Suskind states that
Obama accepts the blame for mismanagement in
his administration while noting that
restructuring the financial system was
complicated and could have resulted in
deeper financial harm. . . . |
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In a February 2011 interview with Suskind, Obama
acknowledges another ongoing criticism—that
he is too focused on policy and not on
telling a larger story, one the public could
relate to. Obama is quoted as saying he was
elected in part because "he had connected
our current predicaments with the broader
arc of American history," but that such a
"narrative thread" had been lost.—Gopusa
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The White Masters of the
World
From
The World and Africa, 1965
By W. E. B. Du Bois
W. E. B. Du Bois’
Arraignment and Indictment of White Civilization
(Fletcher)
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Ancient African Nations
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The Death of Emmett Till by Bob Dylan
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The Lonesome Death of Hattie Carroll
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Only a Pawn in Their Game
Rev. Jesse Lee Peterson Thanks America for
Slavery /
George Jackson /
Hurricane Carter
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The Journal of Negro History issues at Project Gutenberg
The
Haitian Declaration of Independence 1804
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January 1, 1804 -- The Founding of
Haiti
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posted 15 October 2011
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