Sanford Levinson on Our Undemocratic Constitution

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University of Texas Law School professor Sanford Levinson joins Bill Moyers and discusses his most recent book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It).


BILL MOYERS: From listening to the candidates on the campaign trail, it’s easy to believe that the election next year will put us back on the path to political health. My next guest says don’t count on it. He says we are suffering a democracy deficit- that our institutions aren’t promoting self-government. And the problem, he says, goes to the most sacred of our secular documents — the Constitution.

Why venerate a document he asks that puts in the White House candidates who did not in fact get a majority of the popular vote? A document that gives Wyoming the same number of senate votes as California, with seventy times the population. A document that enables the president to overrule both houses of congress simply on political grounds. That allows Supreme Court justices to serve as long as they want and then time their departure to influence their own choice as to who succeeds them. A document that makes it possible to build “a bridge to nowhere.”

Wrong, wrong, wrong, says the heretic Sanford Levinson. And he tells why in this powerful book, OUR UNDEMOCRATIC CONSTITUTION — published last year. It’s one of several he’s produced – along with 200 articles scholarly and popular journals.

Sanford Levinson has been pondering these matters for more than a quarter of a century — as a scholar and professor at the University of Texas Law School and as a visiting professor at Yale, Harvard and Georgetown Universities. His mission is to make us think about what we the people can do to get the Constitution we deserve. Welcome to the JOURNAL.

BILL MOYERS: In your book, in your columns and op ed pieces, on your blog – to which we will be linking – I get a sense of real urgency. Why is that?

SANFORD LEVINSON: The main sense of urgency that I have is that we allow the commander in chief to fire generals who are thought to be incompetent. Lincoln fired a number of generals. George Bush, in effect, has fired a number of generals. Though what we’re now discovering is that most of the generals he fired actually were fired because they were trying to tell him the truth about the number of troops it might take really to do an effective job in Iraq. This is going back to General Shinseki. So, we allow the Commander in Chief to fire generals he no longer has confidence in. But, we can’t fire a Commander in Chief we no longer have confidence in.

BILL MOYERS: But, it’s not just the Bush administration that has you-


BILL MOYERS: — all riled up. I mean you say very clearly don’t get your hopes up that no matter who’s elected in November of 2008 and takes the Oval Office in January of 2009 the basic fundamental grievances of our democracy are going to be solved.

SANFORD LEVINSON: Well, I think that’s absolutely right. That one of the subtext of the book is precisely that presidents in both parties — this is not President Bush’s doing. But, presidents in both parties have announced over and over again that we’re committed to spreading democracy around the world. But, we have not had a really serious discussion in this country of what we mean by democracy.

Is the Constitution sufficiently democratic? One of the mantras of contemporary democracy is some notion of one person/one vote. That is obviously violated by the Senate in a spectacular way. But, I think we should realize the Presidential veto gives way too much power to one individual. And violates I think or what I would think we should see as a 21st century notion of democracy. In fact, the American President regarding the use of the veto power is second only to the President of Cypress in his ability successfully to stop legislation. And the President of Cypress wins only because there’s no possibly for an override. But, presidents can successfully stop legislation 95 percent of the time.

SANFORD LEVINSON: One of the reasons I am convinced that so much money is put into presidential races is because people who spend money know that you can get a huge return on your investment if you can get a sympathetic president in the White House, who will threaten to use the veto power. That, in order to buy control, if he had just talk — in the most cynical language right now — -which I don’t fully believe. But in order to buy Congress, you have to buy a majority of the House of Representatives, and the majority of the Senate, which is really not easy to do. If, on the other hand, you can buy the president, then you have somebody who can use the power that we now give a president as the third house of the legislature-

BILL MOYERS: — they can also put the Federal Communications-


BILL MOYERS: — Commission, sympathetic-


BILL MOYERS: — commissioners.

SANFORD LEVINSON: Right, the control of the bureaucracy. And this is a massive, massive display of power that could not have been part of the 1787-


SANFORD LEVINSON: — vision, because they never imagined what the, what the national government would grow to become.

BILL MOYERS: I was just this morning reading an essay by some historians and scholars who say that what we’re experiencing in Washington right now is not just gridlock, but paralysis?


BILL MOYERS: Paralysis, more difficult than we’ve had since the period, the decade before the Civil War.


BILL MOYERS: Do you think that’s true?

SANFORD LEVINSON: I certainly don’t think it’s untrue. I mean, I think the best example of that, in terms of social tensions, is immigration. I mean, again, given my own politics, I’d rather talk about Congress being unable to resolve issues of medical care or things like that. But it’s very, very obvious this election year that immigration has become the hot button-


SANFORD LEVINSON: — issue. The Republican candidates, in particular, are falling all over themselves to declare which of them will be tougher on immigrants. Though the dirty secret is that for better and for worse, there’s not that much a president can do. That Congress would have to pass a great-


SANFORD LEVINSON: — deal of legislation. And what we have learned over the last year or two, and this isn’t particularly a matter of sheer partisan politics, because to give George Bush his due, on the issue of immigration, he’s quite sensible. If-

BILL MOYERS: — and he and the Democrats-

SANFORD LEVINSON: And — and — as —

SANFORD LEVINSON: — as governor of Texas-


SANFORD LEVINSON: — he was not like Pete Wilson, who-

BILL MOYERS: California?

SANFORD LEVINSON: — in California, who really bashed immigrants. That’s not who George Bush was in Texas. It’s not the George Bush who’s been in the White House, and I’ll give him some credit for that. But you have a very divided country over what the right thing to do with immigration is. Some of this takes regional form. So you have these very sharp divisions. Congress can do nothing. You see more and more states. You see localities, I think trying to pass their own legislation. You look at Congress, and it’s just incapable of functioning. And that’s where don’t think immigration is likely to lead to civil war. But it is leading to an increasingly, nastily divided country.

BILL MOYERS: Let me briefly list some of what you called the grievous defects in the Constitution. And you tell me why they’re-


BILL MOYERS: — so grievous? The allocation of power in the Senate. You say the Senate is among our most grievously flawed institutions?

SANFORD LEVINSON: Well, just on the one person, one vote notion. That to give Wyoming, with one 70th of the population of California, the same political power. And I’d mention one other feature. We have a bicameral system in Congress that gives each house a power absolutely to veto the other. So, that the Senate can block anything the House does, which makes Wyoming and the other upper-Midwest states so powerful in the Senate.

The modern Senate works, frankly, as the worst sort of affirmative action program for the residents of small states. It doesn’t protect the values of federalism, state autonomy, diversity and the like. Rather, it means that senators of small states, particularly the small states that are clustered together in the upper-Midwest, quite frankly can make out like bandits. So that-

BILL MOYERS: That’s where they get the bridge to nowhere?

SANFORD LEVINSON: We — the bridge to nowhere. You also have what is widely agreed to be a dysfunctional — agricultural program.

BILL MOYERS: Oh, yeah.

SANFORD LEVINSON: That has all sorts of consequences, ranging from the obesity epidemic, to whether Africans who grow some of these crops can get a fair share of the world market. And the reason that candidates from both parties — support the ethanol subsidies are unwilling, at the end of the day, really to touch the sacred cows of our agricultural programs is because of the power these states have in the Senate.

BILL MOYERS: The small states-

SANFORD LEVINSON: The small states.

BILL MOYERS: — exactly. Next grievance. The, and I’m quoting you, “the almost certain presidential dictatorship that will follow any catastrophic attack on members of Congress.”

SANFORD LEVINSON: Let’s say we have a catastrophic attack that, flight 93 had not been forced down-

BILL MOYERS: In Pennsylvania-

SANFORD LEVINSON: In Pennsylvania they actually-

BILL MOYERS: Hit the Capitol?

SANFORD LEVINSON: Hit the Capitol.

BILL MOYERS: Right, which is-


BILL MOYERS: — it’s target, apparently.

SANFORD LEVINSON: Apparently. And if it had, let’s say it had had not killed, but disabled 60 or 70 senators. The difference is that if senators are killed, they can be replaced the next day, because the 17th Amendment says that if there’s a vacancy in the Senate, the governor can name a substitute. If a senator is disabled, then the governor, by definition, can’t act.

And to get even more technical, you can’t even have a quorum for the Senate to meet if you don’t have a majority of the membership. With regard to the House, frankly doesn’t matter, in the Senate, whether members of the House are killed or disabled, because under the Constitution, all member of the House of Representatives must be elected. Now there was a study group of the American, Conservative American Enterprise Institution, the liberal Brookings institution, that’s concerned itself with this problem of continuity and government. And the fact is my Republican Senator, whom I’m generally not a supporter of, but I admire Senator Cornyn because he actually-

BILL MOYERS: From Texas?

SANFORD LEVINSON: — from Texas, who introduced an amendment that would provide a way of taking care of this problem. Now, it isn’t going anywhere in Congress. It’s just another piece of evidence as to the inability of Congress to respond effectively, even where the issue is completely non-partisan.

BILL MOYERS: Next example: the electoral college, which you say renders some states, i.e. Massachusetts, nearly irrelevant in presidential politics. Those voters up there might as well be living in Bermuda, as far as their vote’s going to count in this year. So, what about the electoral college?

SANFORD LEVINSON: Well, actually, my wife and I split our time between Austin, Texas and Boston. And we can say with confidence that over the last two election cycles, and almost certainly for this election cycle, in effect, we didn’t know an election was taking place, except during primary season, because no candidate visits Massachusetts or Texas. We happen to vote in Texas. If you’re a Democrat, there’s no reason to show up, because Texas, at least into the foreseeable future, is a predictable Republican state. Massachusetts, of course, is a predictable Democratic state.

BILL MOYERS: So the candidates stay away?

SANFORD LEVINSON: So the candidates stay away. And they don’t address the issues that the safe states have. You would really never know from the political campaign, up to now, that most Americans actually live in cities. Texas, as you know far better than I, has three of the ten largest cities in the country. California has a number of very large cities. New York, Illinois. These are all safe states. So, there is no incentive of the candidate really in either party to give a stem-winding speech about what he or she will do for San Antonio or for New York City, or LA or Chicago, because you can predict exactly how those states are going to vote. So, the election, modern elections boil down to battleground states.

SANFORD LEVINSON: Now, this, I think, is a pernicious feature of our politics.

BILL MOYERS: Of the electoral college?

SANFORD LEVINSON: Of the electoral college. There are all sorts of things that are wrong with the electoral college. The freezing out in given states of political minorities. And also, the fact, I mean, all of the attention is place on the fact that George Bush got the White House without coming in first. But, if you look at American presidents elected since only World War II, let alone before that, you discover that an amazing number of them didn’t get a majority of the vote.

BILL MOYERS: How many, do you remember?

SANFORD LEVINSON: Harry Truman, John Kennedy in 1960. Richard Nixon in 1968. Bill Clinton in both of his elections. And of course, George Bush notably in 2000. And there’s an asterisk with Gerry Ford, because he never ran an election at all. And in fact, it’s a real mistake simply to focus on what happened in 2000, and to think that it’s really that much better that Richard Nixon and Bill Clinton became president in 1968 and then 1992, with 43 percent of the vote. This is not the sort of support you want with a president who really can, on his own, send people to die in wars.

BILL MOYERS: Here’s one in your book, one case study in your book, that took me back, as well. Because I was taught to believe, growing up, that life tenure for Supreme Court Justices meant they were above politics . And yet, you say this is one of the offenses of our Constitution?

SANFORD LEVINSON: Yes. I think that the original rational for life tenure is easily defended. That is, you want to protect judicial independence. And the best way to protect independence, it’s like tenure, and I’m grateful every single day, let me tell you. I’m grateful every day to have tenure at the University of Texas Law School. But one of the things that’s obviously true is that every value involves a tradeoff with another value. And so life tenure today, and I don’t think it meant this 100 years ago, 200 years ago.

Life tenure today means that there’s a perverse incentive on the part of presidents to appoint relatively young members of the Supreme Court, so that they can hang on for 35 or 40 years. Now, I don’t think we need that lengthy a term in order to preserve independence. There’s a suggestion a make in the book is that a single, non-renewable term of 18 years would be — enough. There’s also the feature, with life tenure — that justices obviously don’t have to serve until they die. They can choose to resign. Well, when do most judges choose to resign? It ought not be a big surprise that they wait or they try to wait until a president of their own party is in the White House. This is not judicial independence. This is political partisanship.

And so what you have is Justice O’Conner waiting until a Republican president is in office to resign. You also have quite frankly, the unseemly efforts of Justice Marshall and Justice Brennan to hang on for dear life until a Democrat got into office. Now, neither of them made it. But if we had simply a non-renewable 18-year term, then no justice could try to gain the system. And I think we’d be better off.

BILL MOYERS: Let me play back to you one of your own thought experiments that you described in the book. “Imagine that the United States Constitution contained a provision whereby every 20 years, the electorate could vote for a new Constitutional convention that would assess the Constitution, and recommend changes.” If this were such a year, would you, Sanford Levinson, vote in favor of a new convention?

SANFORD LEVINSON: Oh, of course I would.

BILL MOYERS: But wouldn’t you be opening a Pandora’s box? Wouldn’t you be risking losing some of the tested safeguards that have developed through 200 years of more or our own Constitution?

SANFORD LEVINSON: Well, since this is the most often asked question, especially by friends and members of my family, I have an answer to it. And I’m not so fearful, for a number of different reasons. First of all, how would I choose members of the convention? My answer is to go back to ancient Greece, or to look at the way we choose juries. And I would have 700 or so of our fellow citizens chosen at random. Meet for two years, pay them the salary for those two years of a Justice of Supreme Court, United States Senator, because they would be fulfilling the highest possible function of citizenship. Give them time to reflect and learn about these issues.

And one of the things they would learn is if they insisted say, on whatev — what is everybody’s worst nightmare, getting rid of the Bill of Rights, or any of the other really hot button issues. Then one of the things you learn if you look at the roughly 220 state Constitutional conventions that have been held over our history, is that those attempts at reform fail. You may recall that Texas tried to reform its Constitution in 1972, I think it was. I think it’s fair to say that most Texans of all political persuasions believe that the reconstruction era Constitution needs some reform.

What brought down the reform? It’s easy. Big business couldn’t resist the temptation to put a right to work provision in the Constitution. So that led labor unions, in turn, to vote against the new Constitution. And then there were other people who say, “If it ain’t broke, don’t fix it.” Or, “If it’s good enough for grandpa, it’s good enough for me.” Or they might not have liked some other feature. So the only way you would ever get significant change, is if you convince people across the political spectrum. Then, I think, you might be able to imagine these being approved in the ratification process.

If, on the other hand, you had a convention taken over by single issue zealots, whatever the single issue is, then the most likely thing is that the convention would just break down. People would simply start shouting at one another. And then it would never be ratified.

BILL MOYERS: Why not just amend the Constitution?

SANFORD LEVINSON: Well, I think in many ways that would be a satisfactory response for at least some of the criticism – or all of the criticism which call for a Constitutional amendment. The reason we need a convention instead of going the route of Constitutional amendment really is because Congress is just too busy that each and every one of these issues that I am interested in would take a significant amount of time and energy to explore.

Today’s Congress even if they didn’t have to spend an inordinate amount of time raising money which I think most members of Congress despise, but even if they didn’t have to spend the time raising money they also deal with a remarkable range of issues that are always competing for their scarce time and attention. Since 1959 the numbers of the members of the House and Senate had remained constant. 439 members of the House, 100 members of the Senate. Since 1959, our population has gone up by 2/3s and the responsibilities of the national government now include as they did not in 1959 health, education, the environment, urban policies, issues of war and peace of nuclear arms are ever more complicated than they were.

BILL MOYERS: Terrorism

SANFORD LEVINSON: Terrorism. So that to get members of Congress to say we are really going to spend the time that it would take to have a serious conversation about these this just sounds academic in the most pejorative of senses You’re undoubtedly right. And then this comes back to another thing we talked about earlier this hour, which is that we describe ourselves very proudly as a democracy. The preamble of the Constitution, which I think is a wonderful preamble.

BILL MOYERS: Magnificent.

SANFORD LEVINSON: I think it’s magnificent. And I think we ought to think about it almost literally every day, and then ask, “Well, to what extent is government organized to realize the noble visions of the preamble?” That the preamble begins, “We the people.” It’s a notion of a people that can engage in self-determination. What I have discovered, is a real fear of popular government. And I think that for a variety of reasons having to do with the nature of politics in recent years, there is this incredible mistrust of people who don’t share your views. And you think that they’re out, in some ways, to wreck the country. This is what populist politics is thought to mean. There are a number of political scientists and sociologists. My friend Alan Wolfe is one of them.


SANFORD LEVINSON: Who has argued that if you actually talk to Americans in their own homes, in their own workplaces, they’re really, it’s not that everybody agrees. But they’re not so polarized as our current political system is. And there really is the opportunity to create a more Democratic politics. But I think, frankly, and somewhat sadly, more and more people are losing that face in popular government. And so then we might have to ask ourselves, “Well, what’s the alternative to popular government? Is that government by experts? Is it government by elites? Is it government by those who have most money?”

BILL MOYERS: That’s what we have now.

SANFORD LEVINSON: Yes. Yes. And I really — I don’t think we should give up on the promise of Democracy.

BILL MOYERS: I hope that you have launched a beginning of a national conversation. We will link your blog, which is a fascinating one, to our site at, and I hope a lot of people read, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG AND HOW WE THE PEOPLE CAN CORRECT IT. Sanford Levinson, thank you very much for joining us.

SANFORD LEVINSON: Thank you. The pleasure is mine.

GEORGE MITCHELL: For more than a decade there has been widespread illegal use of anabolic steroids and other performances enhancing substances by players in major league baseball.

BILL MOYERS: There’s been talk all this week about that stunning report from former Senator George Mitchell revealing that Major League Baseball players, including some of the sport’s biggest stars, have been using steroids for years. The findings prompted my fellow journalist and friend Dick Starkey to recall an important insight into America by the eminent social critic, Jacques Barzun. A Frenchman by birth, now 100 years old and living in Texas, Barzun, like his illustrious ancestor Alexis de Tocqueville, has been a canny interpreter of the American character. “Whoever wants to know the heart and mind of America,” he once wrote, “had better learn baseball.”

So what do we learn about ourselves from the Mitchell Report? That something is flowing through our veins other than red corpuscles. It turns out owners, players and the players’ union were complicit in ignoring the growing use of steroids and other illegal drugs in our national pastime. But suppose our national pasttime has become our national pathology? Ours is a society on steroids, and we’re as blind as baseball’s owners were a decade ago.

In our drugged state, we cheer the winners in the game of wealth, the billionaires who benefit from a skewed financial system — the losers, we kick down the stairs. We open fire hoses of cash into our political system in the name of “free speech.” Television stations that refuse to cover government make fortunes selling political bromides over public airwaves. Pornography passing as advertising assaults our senses, seduces our children, and pollutes our culture. Partisan propaganda gets pumped up as news. We feed on the flamboyance of celebrities. And we actually take seriously the Elmer Gantrys who use the Christian Gospel as a guidebook to an Iowa caucus or a battle plan for the Middle East. In the face of a scandalous health care system, failing schools, and a fraudulent endless war, we are as docile as tattered scarecrows in a field of rotten tomatoes.

As for that war, you may have heard that a quarter of the heavily-armed shooters’ working in the streets of Baghdad for the Administration’s mercenary Blackwater foreign legion are alleged to be chemically influenced by steroids or other mind-altering substances.

The other day, before Mitchell issued his report, the former pitcher Jim Bouton was holding forth on the importance of a level playing field in the sport at which he had long excelled. Were he playing today, Bouton said, he wouldn’t want to lose his livelihood because his competitors had an unfair advantage.

You don’t get a level playing field with performance enhancing drugs, any more than you get an honest government with political action committees and bundled contributions, or a fair economy with some derivatives, hedge funds, and private equity managers taxed at rates lower than their janitors. You get a level playing field only when the fans demand it. Suppose people stopped attending games in large numbers, stopped watching on TV, stopped buying the products hyped by the icons. The leveling would happen, or baseball as a money-making business would die. It’s not likely to happen. If we can’t organize to stop a brutal, bloody war in Iraq, or rectify an economic system that divides us further every day, we can hardly expect collective action from baseball fans.

There was a lesson in George Mitchell’s report that I’m not sure even he recognized. The day Americans don’t feel strongly enough about the need for level playing fields to fight for them — the day when cutting corners and seeking an edge become the national pastime — is the day democracy will be lucky even to find a seat in the bleachers.

The JOURNAL continues online.

My colleagues Rick Karr and Peter Meryash report on this week’s FCC vote to increase monopoly control over the press. Check out their web-exclusive coverage at

FCC COMMISSIONER ADELSTEIN: The law tells us that we’re here to serve the public interest not those who seek to profit by using the public airwaves.

BILL MOYERS: That’s it for the JOURNAL. I’m Bill Moyers. See you next week.

This transcript was entered on May 23, 2015.

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