October 16, 2006

Levinson's "Our Broken Constitution"

Since Moon and I are going back and forth on the presidential succession I figured it would be a good time to link to this op-ed in today's Los Angeles Times on our remarkably undemocratic founding documnet. Parts of it may merit veneration, but parts of it are a mix of a trainwreck and a travesty, and those should be changed - soon.

Posted by armand at October 16, 2006 04:02 PM | TrackBack | Posted to Politics


Comments

i have quite a few problems with levinson's analysis. it raises legitimate points, but handles none of them especially persuasively.

for example, the idea that the veto is profoundly undemocratic is highly questionable. a congressional supermajority will overcome a veto, and the veto is exercised by the only one of the bunch who was elected by the entire country. levinson doesn't even bother to point it out. of course, probably 60 or 70% of LAT op-ed readers know that already, but it seems, er, undemocratic of levinson not to point it out to the rest.

i see both sides on the electoral college issue, and abstractly it is much the same issue as the disparate representation in the senate point he raises: whether smaller states, equally part of the union of (still in many ways) independent states that comprise our nation, should have proportionate representation based on statehood or solely population. amusingly, levinson, while generally arguing for a parliamentary system (he disavows the name, but it doesn't matter how you dress the pig), doesn't point out the lords / commons thing in the english system. in any case, i'm more hospitable to abolishing the electoral college than the senate as constituted. a body that size couldn't be designed to fairly represent each state in due proportion, but a body any bigger wouldn't be able to engage in the sort of deliberation for which the senate is renowned. of course, now is a dark time in that regard, but growing the body by 150 people or so surely isn't going to help it return to its better days.

more broadly, levinson is simply stating more of what we've been hearing by the folks who keep winning by a couple of percent: put it all up to a direct national referendum. they won't feel that way when the other side's in power. our framers appreciated that, which is why it's hard to pass legislation without compromise, really hard to modify our founding document, and all but impossible for a faction-addled congress to remove a sitting president in a fit of pique (and if they had that power, given what we've seen in the last decade or so, we'd be stuck electing presidents every year or three, and no president would have time to do anything, which, i suppose, is okay insofar as with direct democracy and an unprotected constitution, pretty much any law could be changed any time without any deliberation).

lots of presidents have bad approval ratings at one time in their tenure but high approval ratings at other times. and four years is not that long a time.

the bottom line is not the underlying system, it's the play in the joints and the electorate. as to the system, far more upsetting than anything levinson cites is the ridiculous degree of gerrymandering we've come to accept as a matter of course, a system that more than anything else defies democratic prerogatives in a shamelessly calculated move designed to protect the incumbents from ever having to work a job in the private sector ever again. as to the electorate, levinson points out the low approval rates of sitting congressmen, but fails to point out that even those who disapprove most will tend to vote for their incumbent as though s/he weren't part of the problem, regardless of party affiliation, a byproduct of gerrymandering and voter complacency.

regarding pork, again, the problem is not the system, but the people we keep sending to washington to participate in it.

make districts competitive (and, if you like, get rid of the electoral college), take a longer view than the anomalously even divide in today's electorate (which won't last forever) and the unfortunate results of an especially problematic two-term presidency, and i think a lot of levinson's commentary reveals itself as tendentious and, at times, just plain facile. maybe his book is more persuasive.

Posted by: moon at October 16, 2006 04:55 PM | PERMALINK

OK, to start, I agree with you on the veto.

As your following paragraph (regarding the Senate) - What are these better days you talk of? Days when nasty old Southern coots ran the Senate in backrooms over glasses of bourbon. I don't see any great value in the small number of 100 versus the larger number of, say, 300. I really don't see any problem with a group that size serving as the Senate. Will they all be bestest golf buddies? No. But I don't think that's such a terrible thing.

And I see no reason at all why "states" should have representation beyond the citizens who inhabit them. Our national understandings of what states are and their proper role in the government is fundamentall different now than it was centuries ago. And that being the case I think senators should represent breathing citizens - in numbers more or less equal to how they are spread across the country (but I'm not one of those whack-jobs who thinks every district must have the same population EXACTLY).

And as long as we retain our president and separate executive branch, we do not have a parliamentary system, regardless of how the Senate is designed.

And no, he's not saying put everything up to a national referendum - but he is saying that the people we acknowledge as being duly elected by the people should actually be duly elected by most of the people. Not electors. And not (in unfair numbers) by Alaskans and Dakotans.

He likes the basic framework - 1 president, 2 houses - lots of room for action between the joints of those 3 branches. But since we claim to be a democracy, he thinks the people who fill those roles should actually be elected by a majority of the people. Compromise is a necessity, regardless. Nothing he proposes stops that - and since the Senate would likely be enlarged if we were to pursue his approach to things, it would likely become more important.

4 years is not that long a time? Tell that to the soldiers in Iraq. I think it's horrifying that we could well go through close to 4 years (in our current situtation) with a president who's supported by at most 40% of the people? What exactly is gained there? And what about it is better than a system in which the president - the one person in our society charged with executing the laws of the land, the most powerful person on the planet - actually has to worry about being removed from office for failure?

I think you vastly overstate the problem of gerrymandering. It's a problem (at the congressional level in a few states - like Florida, Michigan and Pennsylvania) - but you can put up theoretical defenses of it too (fostering identity with your in-group and the government potentially - instead of a situation in which 47% of the people don't vote for their member of Congress it's more likely 30% or whatever). And in any event it's not the main reason we have so few races anyone cares about. That's primarily due to the way we run our electoral campaigns (issues of money and party system, more than geographic lines).

Regarding pork - the problem is the voters, not the Congress. They like the pork.

And I don't see what's so facile about his argument - he's saying we don't have a very democratic or responsive government, and I think he makes that case. On the whole your comment seems to imply that we don't need more democracy and responsiveness in government (apart from more competitive elections in the current system, the one that makes a mockery of one-woman, one-vote). So ... I strikes me that you just aren't that interested in his point, more than the point is facile.

Posted by: Armand at October 16, 2006 06:53 PM | PERMALINK

morris? is that you? it is referendum democracy at root that he prefers: when the legislature fails to act, and more rapidly than deliberation would suggest, in a way that reflects what gallup most recently says about the people of a district, a state, or a country, he calls it a failure of democracy. and he's right, it is. it's just not a failure of the republic, and that's what our ancestors selected for our nation, for better or worse.

and yes, i do think a president should have a fixed term, subject to termination for genuinely bad behavior, because we already have a problem with privileging short-term interests over long-term vision, and a president who's constantly facing the prospect of his removal will never have the courage to do anything unpopular. and unpopular is good, sometimes, a position you've defended before. if we don't have 4-year terms, we don't have the new deal. again, my biggest gripe with levinson is the degree to which he's enmired in his time, the lack of historical perspective. the yankees lose ten in a row, it doesn't mean they're not the most talented team in baseball. we are admittedly going through a difficult spell, and some trends still point in scary directions, but there's an awful lot of bathwater to throw it with the baby.

if the system levinson proposes is not a formal parliament, you're the expert and i'll take your word for it, but call it pumpernickel for all i care -- it's still a recipe for government even more short-sighted than we all ready have, which is, in case you hadn't noticed, a government that's showing precisely the same bad habits of profit-greedy corporations which also think on a quarterly basis. you can't run a nation with powerpoint slides, and you can't run a nation a month at a time while constantly looking over your shoulder.

i disagree that gerrymandering is not a huge problem. why is in-group voting good, or at least why is it good when in order to do it one must carve up maps in the most patently irrational ways imaginable? if the point here is greater representation through greater accountability to the electorate, i fail to see how districts designed to leverage voting blocs does anything except set up a spoils system where the representative is all but guaranteed his seat at the table for as long as he caters to the national party and the caucus (not, mind you, the specific will of his constituents). furthermore, perhaps part of why voter turnout is as low as it is at either level is because, a) it's the same crap year in and year out because it's nigh-impossible for an upstart from the incumbent party to win (so you're left with choosing your party's choice or the guy from the other side), and b) because things like electoral district maps look, to the lay person (and to me, whatever i am), like utter hokum. even if there's a complex positive rationale behind it -- and i readily admit that there is -- it's not one that most of the electorate could explain back to you, which means most people can't explain it to themselves or others, which means it just looks dubious.

i understand that the citizens of such and such a state like the pork that comes home. but the house has to vote on it too, and a more responsive electorate would punish, e.g., new york representatives who build a bridge in alaska but can't bring home enough highway funding 'cause all too much is going to the middle of nowhere. the problem is a responsiveness one, i'll grant you and levinson, but i don't see how proportionate representation in the senate is going to help all that much. presumably that system too would be gerrymandered beyond all rationality (unless you want new yorkers voting for like 10 senators in a giant statewide electoral freeforall guaranteed to result frequently in utterly random people being sent to D.C., and having power to bang the podium for impeachment and sink judicial nominees for inscrutable reasons, i might add).

i've long since conceded to you the argument about the electoral college; clearly we differ on the importance of states' individual identities in our accounts of how this all is to work, but while i'm more agnostic about it i wouldn't really raise an eyebrow if we abolished it.

i think our system was designed to slow down and get ugly during times of close ideological division in the country, precisely because the more close the voting power of each side becomes, the more hostile and extreme become the factions. it is precisely at a time like this we want a system that makes change difficult, and frankly i'm thankful for it, since with modest legislative majorities and a rash president there's no telling how much more damage could have been done in the past four years of GOP domination than has been done.

if there is a problem to be solved, it's the degree to which fringe voters, qua "the base," hold the parties hostage to a greater or lesser extent to the detriment of the interests of the moderate (super?)majority of the populace. i fail to see how anything in levinson's various proposals addresses or really even acknowledges that problem head on. my concerns for gerrymandering are one dimension of that, but only one, and i'd be curious to hear more input on that problem (often acknowledged, but rarely addressed in a constructive, let's-try-this sort of way).

Posted by: moon at October 17, 2006 11:09 AM | PERMALINK

Well a lot of this we're just going to disagree on. I think, given the almost unimagineable power a president has, it's perfectly reasonable to keep that president on a very tight leash. And I think it's a musty, undemocratic anachronism to have the Senate apportioned as it's. But I want to keep the Senate, and the House, and the executive located in the executive, and the Supreme Court - and it seems to me that that offers lots of ways to speed things down and not follow the popular will. Lots. Of. Ways.

And why don't you think you can run a nation capably while also allowing for a system in which the nation has a no-confidence option that it can employ to dump a long unpopular leader? Canada's got that, as do Australia, the UK, New Zealand, Denmark ... are all of these states hideous messes? I don't think so. There are pluses and minuses to each of them, but I don't think the no-confidence provision makes them any less likely to function well.

As to your gerrymandering arguments - who cares about how maps look? Honestly I've never understood that argument - who it's stretched and ugly so obviously there's something wrong with it. The problem with going down this road is - well, what should drive districting? Talk about a normative abyss. To me it should be communities with shared interests (so that the "representative" may best know who she is representing and so that the voters will likely feel most confident in her representing them and their wishes) - and if what it takes to get that is a hideous ink blot I've got no real problem with it.

Anyway, I don't have a problem with slowing down the masses and the crowds who are on the way to their pitchforks. But I think there should be some democracy in how we pick our leaders, and our practices should match the norms and ideals we purport to uphold so I think it's time to end the Electoral College (glad you agree) and end the 2-person per state rule in the Senate.

As to the rest of Levinson's arguments - well I don't agree with each and every one.

Posted by: Armand at October 17, 2006 01:05 PM | PERMALINK

IMO the Levinson missed the mark. The problem is not the things he lays out, it's the power congress and the president have granted themselves with the assistance of the judiciary.

If we were to follow the constitution as designed and the "general welfare" clause was limited to the enumerated items, the "interstate commerce clause" was limited to direct interstate commerce and "necessary and proper" didn't mean anything and everything regardless. The issues he speaks of would be moot. Congress would be relatively powerless except on issues where the average person would hardly notice.

The usurpation of the constitution has caused a domino effect. The constitution isn’t flawed; it's the interpretation that is. The constitution was a well thought out well designed set of fundamental laws, each counting on the other for support. Once a foundational clause, such as the general welfare clause, has been compromised the entire structure begins to fall apart. Take for instance "the bridge to no where", that would never have happened to begin with IF the constitution was not undermined, it would have been declared unconstitutional before it even made it to an amendment.

Consider where we are now and the following from Madison. We're so far past the designed limits of the constitution its staggering.

[quote]Madison (1792) On the Cod Fishery Bill, granting Bounties.
http://www.constitution.org/je/je4_cong_deb_12.htm
If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their Own hands; they may a point teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the general welfare.
The language held in various discussions of this house is a proof that the doctrine in question was never entertained by this body. Arguments, wherever the subject would permit, have constantly been drawn from the peculiar nature of this government, as limited to certain enumerated powers, instead of extending, like other governments, to all cases not particularly excepted.[/quote]

Not even Hamilton's expansive interpretation remotely reflects what we have now. When you push anything beyond its designed limits of course the results are not going to be desirable, that's a given.

Posted by: Steve Sykes at October 20, 2006 01:21 AM | PERMALINK

Well I don't agree with this at all - "When you push anything beyond its designed limits of course the results are not going to be desirable, that's a given" - but yes, you'd have to think that the Commerce clause has interpreted in ways that people wouldn't have predicted in the 1780's. That said, there's absolutely no way our society is going back to a system in which the 50 states are dominant. So I think looking at reforming the undemocratic details of the system we have now is an appropriate exercise.

Posted by: Armand at October 20, 2006 10:19 AM | PERMALINK
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