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Should We Have a New Constitutional Convention?

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Chip Somodevilla/Getty Images
Members of the US Senate escorting the electoral college ballots through Statuary Hall in January 2009 on their way to the House Chamber, where a joint session of Congress certified Barack Obama as the winner of the 2008 presidential election
…So by a stroke as bold as it proved successful, they founded a nation, although they had set out only to find a way to reduce trade restrictions. So also they solved the particular problem causative of their historic action, by introducing the commerce clause in the new structure of power.

Therefore, although Levinson’s book contains a lucid and accurate description of the costs incurred by the Framers’ “great compromises,” his discussion omits an adequate consideration of the nature of the quid pro quo—specifically, of what benefits were obtained in return. Those benefits included the development of a flourishing national market where free competition replaced multiple restraints of trade in thirteen balkanized local markets. The contrast between the Framers’ prompt creation of a flourishing common market and the years that went by before such a market arrived in Europe should not be ignored.

Nor should we ignore the importance of the replacement of each state’s absolute veto over certain federal actions with a bicameral legislature that has the power to take action in the national interest, if majorities in both houses agree. Proper deference to the importance of that compromise casts doubt upon state challenges to federal legislation based on the concept of state sovereign dignity, because the Senate provides the proper forum for approving such federal action. Such deference is also an answer to the concerns expressed by President Jackson in his famous message explaining his veto of the legislation authorizing the Second Bank of the United States, which Levinson discusses in the book.

Rather than “loathsome,” in my judgment the compromise that created the Senate was constructive. It enabled the Framers to accomplish their mission, and provides a principled basis for rejecting many states’ rights challenges to legislation that has been approved by a majority of the states in a Senate vote. When states, through their representation in the Senate, have participated in creating federal legislation, they should not be treated as above the law that they participated in enacting. This is so even though, as Levinson notes, the Seventeenth Amendment altered the selection mechanism for senators to establish direct election by the citizens of the state, because equal representation for each state persists and cannot be amended away. And neither the Tenth Amendment, which merely confirms that federal legislation must be authorized by an enumerated power, nor the Eleventh Amendment, which by its text concerns only suits by one state’s citizens against another state, should be understood to affect this point.

In a handful of recent cases, however, the Supreme Court has made the fundamental mistake of failing to properly account for the constitutional compromise that created the Senate. Majority approval of the states, as reflected in the outcome of a Senate vote, should be sufficient to justify the exercise of federal power. Yet in Alden v. Maine (1999), the Court held that the states could not be required to obey laws applying to the national labor market. In Printz v. United States (1997), it ruled that state agents need not assist the federal government’s efforts to secure the safety of its citizens. These are examples of Supreme Court cases that will be seen as unfaithful to that compromise.

Referring to the two great compromises, Levinson asks, “The Central Question: Was the Constitution Worth It?” By omitting a detailed analysis of what was gained by the compromises, Levinson fails to provide readers with a direct answer to that question. That failure persuades me that, rather than trying to generate support for a new constitutional convention, Levinson’s primary purpose in writing the book is actually what he describes as merely one of his aims: “to encourage long overdue conversation about ignored features of our constitutions.” The remaining eminently readable chapters of the book admirably accomplish this purpose.

In particular, Levinson devotes significant attention to the Constitution’s preamble, noting that it relates more to an understanding of the purposes motivating ambiguous constitutional provisions (what he calls the “Constitution of Conversation”) than to an assessment of the wisdom of the clear provisions (the “Constitution of Settlement”). It is interesting that the two Supreme Court opinions that quote the preamble to the US Constitution—Justice James Wilson’s opinion in Chisholm v. Georgia (1793) and Chief Justice John Marshall’s opinion in McCulloch v. Maryland (1819)—were both opinions of great historical significance. Federal judges would do well to pay more attention to the preamble’s explanation of why the Framers made their great compromises:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

As Levinson notes after reviewing a host of state and foreign preambles, that text “is clearly among the most secular of national preambles…[offering] nothing to support the notion, for example, that we are a ‘Christian nation’ in anything more than a sociological sense.”

While they may have merely been intended to encourage long-overdue conversation, the chapters discussing the electoral college and the need for more complete consideration of responses to potential disasters not only contain thoughtful insights, but also identify constitutional provisions that should be amended.

Levinson correctly argues that the electoral college, now governed by the Twelfth Amendment, is an anomaly. As the early history of the electoral college demonstrates, even from the beginning it was beset with problems. The 1800 election was a fiasco, Levinson explains, because despite Jefferson’s being the clear popular vote winner over Adams, with Jefferson winning 41,330 votes and Adams only 25,962, the electoral vote difference was much narrower and resulted in deadlocks that needed to be broken in the House of Representatives. The Twelfth Amendment addressed one facet of the problem presented by that election by splitting electors’ votes into separate tracks for the presidency and vice-presidency, but electors retain the freedom under the Constitution to vote as they wish; they are not bound to vote for their party’s candidate.

Levinson notes that “faithless electors” have voted based on their idiosyncratic choices, rather than party, 156 times over the course of the nation’s history. Although those individual votes have never changed an election’s outcome, a legal regime that permits electors to disregard the majority’s choices in the states that they represent should not be preserved. Because of my respect for the compromise that produced the Senate, however, I do not share what I understand to be Levinson’s view that the outcome of presidential elections should necessarily be governed by the nationwide popular vote, rather than by a majority of the states’ electoral votes.

Levinson does, however, make three powerful arguments about the electoral college that merit more attention than they have received. First, reviewing the early history of the college, he explains that its adoption rested on an assumption that “faction”—or party politics—would not interfere with the chosen electors’ ability to select a great leader like George Washington on the basis of his individual merit. Ironically, it is now party loyalty, rather than any express legal requirement, that dictates the votes of the virtually anonymous electors.

Second, the Three-Fifths Compromise that gave citizens in slave states extra influence in the House of Representatives became translated into a bonus for the slave states in the process of electing the president before the Civil War. After the Thirteenth and Fifteenth Amendments barring slavery and protecting the right of all citizens to vote were adopted, that bonus for slave states should have been terminated. In fact, however, it was effectively replaced, in local practice, by a “Jim Crow” bonus, denying virtually all African-Americans in the South any opportunity to vote, while enlarging the population base of all of the southern states to include 100 percent of the former slaves instead of just three-fifths. That change may be a factor in explaining why the southern states had such disproportionate power, including in the Democratic Party, for decades. Abolishing the electoral college would have symbolic significance by hammering an additional nail into Jim Crow’s coffin.

Third, the evidence acquired by polling during the last sixty-five years provides persuasive—indeed, rather dramatic—evidence that the American public would prefer the direct popular election of the president to the preservation of the electoral college. That preference is reported by percentages of poll respondents ranging from a low of 58 percent in January 1967 to 81 percent in November 1968. The most recent poll cited by Levinson indicates that 61 percent of Americans in 2004 said they’d prefer a direct vote.

Levinson highlights a true weakness of the Constitution by noting its failure to provide an adequate response to potential disasters. He focuses upon the possibilities of a disabled president who resists being temporarily excused from duties, a disabled vice-president, or any of a number of emergencies that might test the stringency of constitutional rules, such as the attacks on September 11, 2001, or the possibility of a global pandemic or nuclear catastrophe.

Levinson’s discussion illustrates errors that have been committed by the Supreme Court in reading limitations on federal power into the Constitution that are unsupported by its text. In Printz v. United States, the Court held that the federal government could not direct county officials to conduct background checks on prospective handgun purchasers during an interim period in which federal officials could not. That holding makes no sense. Just as the federal government can draft citizens into the army, so, too, should it be able to call upon state agents to assist with federal functions.

Similarly, in New York v. United States, the Court invalidated an act of Congress that attempted to provide a solution to the national concern about the disposal of radioactive waste; the Court held that the federal government could not command states to “take title” to such waste. In neither Printz nor New York was the holding even arguably mandated by constitutional text; nor was there historical or structural support for the Court’s conclusions, as my dissents in those cases explained.2 In the face of pressing national problems, such as those at issue in Printz and New York, or far more serious and time-sensitive emergency situations, such as the September 11 attacks, it is exceedingly unwise to restrict the ability of the federal government to meet the crisis on the basis of a constitutional reading that lacks historical justification or textual support.

Levinson’s book is interesting not simply for its substantive insights, but also for the sources it chooses to examine. Levinson does not focus solely on the United States Constitution. Instead, the texts that he considers worthy of study include the constitutions adopted in each of the fifty states, as well as constitutional provisions adopted in other parts of the world; he also notes that some countries, such as Israel and Great Britain, have no written constitution at all. A salient point that Levinson reiterates is that state constitutions are amended far more easily and frequently than our own. He considers it “quite appalling” that over half the respondents to a 1988 poll did not know that their state had its own constitution; for him that widespread ignorance is even more disturbing than the fact that far more Americans can name the Three Stooges than any member of the US Supreme Court.

  1. 2

    New York, 505 U.S., at 210–211 (Stevens, J., concurring in part and dissenting in part); Printz, 521 U.S., at 939–962 (Stevens, J., dissenting). 

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