Academic journal article Texas Law Review

Of Cabbages and Kings: A Review of Our Undemocratic Constitution by Sanford Levinson*

Academic journal article Texas Law Review

Of Cabbages and Kings: A Review of Our Undemocratic Constitution by Sanford Levinson*

Article excerpt

Of Cabbages and Kings: A Review of Our Undemocratic Constitution by Sanford Levinson* OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND How WE THE PEOPLE CAN CORRECT IT). By Sanford Levinson.[dagger] New York, NY: Oxford University Press, 2006. Pp. 233. $28.00.

Reviewed by Charles D. Kelso** & R. Randall Kelso***

Professor Levinson hopes that by publishing his concise, 23 3-page book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It),1 he will generate thought and action in support of a referendum by Americans requesting Congress to call a constitutional convention empowered to draft a new constitution for submission to the electorate.2 Professor Levinson opens his book by making clear his support for the goals stated in the Preamble of the United States Constitution,3 that is, "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."4 However, he has constructed an extensive critique of many constitutional provisions that were drafted by the Framers to implement the Preamble's stated goals but that, he says, are unfit for our government today. He expresses this in his subtitle: Where the Constitution Goes Wrong (and How We the People Can Correct It).

Professor Levinson's concerns appear based in part on some outcomes of our current constitutional structure and processes with which he finds fault, such as the election of President George W. Bush in 2000 by operation of the electoral college, rather than by majority vote of the people.5 More importantly, his concerns appear to be based on the fact that the existing Constitution does not comply with a general principle he considers fundamental for a democracy: government in accord with what the people want, as expressed in election returns, assuming a very broad electorate, with each person's vote counting the same. Examples violating that principle abound in his book. For example, California and Wyoming both have two senators, and yet California has almost seventy times the population of Wyoming.6 Levinson's basic majoritarian principle encompasses support not only for protection of the right to vote but also for the rights-protective clauses of the Constitution, such as the Bill of Rights, which he says are "required for membership in a republican political order."7

For the Constitution to comply with his basic principle, Levinson says it would be necessary to repair many clauses of the Constitution so that:

1. if bicameralism continues, the allocation of power in the Senate takes better account of population;8

2. current-age, duration-of-citizenship, and residence requirements to be a member of Congress are altered to expand the number of persons eligible to serve;9

3. the electoral college is abandoned in favor of nationwide, direct voting for the president;10

4. a newly elected president takes office shortly after the election;11

5. presidential power is more limited, and it is easier to remove an incompetent president, but the limit on two terms should be removed, as should the "natural-born" requirement;12

6. life tenure for Supreme Court Justices is abandoned;13

7. the amending process is simplified to make it easier to change the Constitution;14 and

8. provisions are added to deal with the problem of the continuity of government following a catastrophic terrorist attack.15

According to Levinson, these proposed changes would tend to ensure that the small states do not have an excessive influence in the Senate;16 that the president feels a greater need to pay attention to the public;17 that the perceptions of the Justices are framed more on the basis of contemporary events;18 and, as a consequence, that federal policy making would conform more closely to the desires of a current majority of all the people. …

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