University of Texas law professor Sandy Levinson (he's also a visiting professor at Harvard) is one of the most respected constitutional law scholars in the country, and, increasingly, one of the most iconoclastic. Levinson's scholarly crusade been calling attention to the Constitution's "hard-wired" features (e.g., the Senate, life tenure for Supreme Court justices, the difficulty of removing presidents) that he believes makes America fundamentally undemocratic. Levinson has come to the .conclusion that "the system just does not work anymore. The output fails. It's not a government that can solve problems."
To Levinson's credit, he been pointing out the flaws in our Constitution for nearly 15 years -- he is not simply a disgruntled "lefty" professor who is mad about the Tea Party's intransigence holding up Obama's agenda.
But is he right? Is Levinson a modern-day Cassandra we will wish we would have listened to or is it the people -- the politicians, the voters -- rather than the document that bear the blame?
One of the hard-wired features that most rankles Levinson is the Senate. As he points out, the Senate may have made some sense in 1789, when the populations differences between state weren't as large, but today, Wyoming has 1/70th the population of California and equal voting rights in the Senate. (Nevermind the fact that the Senate ensured equal voting rights for the slave states thus precipitating the Civil War).
To take one example of how the Senate distorts democracy, after the Newtown shooting there was 90 percent support for the background checks gun legislation, but the bill died in the Senate because rural, less populous states' senators killed it (among others). Put another way, using the filibuster, senators, until Harry Reid invoked nuclear option, representing just 11 percent of the population could kill any piece of legislation.
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What is more, Levinson notes, is that the Constitution is devilishly hard to amend. Critics point out that there have been 27 amendments to the document over the years, but the obvious retort is that the first ten, a/k/a the Bill of Rights, were largely contemporaneous with ratification and three more (13th-15th) were pushed on a defeated South after the Civil War, and let's not talk about the disaster that was the 18th Amendment (Prohibition).
Moreover, the last real push at a "big" or substantive amendment, the Equal Rights Amendment, lost steam and failed to gain ratification. The 27th Amendment -- which prevents laws affecting Congressional salary from taking effect until after the next election of the representatives -- seems like thin gruel comparatively.
Whether we think a constitutional convention is necessary we should give Levinson's scholarship serious thought. Perhaps we are simply in a passing era of high partisanship and fever will lift. Perhaps not.
The real issue underlying Levinson's scholarship is what kind of democracy we want. Do we want a more Western European parliamentary style of government or are we content with a Constitution that makes changes/legislation difficult? Do we have faith that the Constitution is up to challenge of solving our problems? As the days of dysfunction grow longer in the tooth, I'm increasingly worried that it's not.