By SANFORD LEVINSON
Advocating the adoption of the new Constitution drafted in Philadelphia, the authors of “The Federalist Papers” mocked the “imbecility” of the weak central government created by the Articles of Confederation.
Nearly 225 years later, critics across the spectrum call the American political system dysfunctional, even pathological. What they don’t mention, though, is the role of the Constitution itself in generating the pathology.
Ignore, for discussion’s sake, the clauses that helped to entrench chattel slavery until it was eliminated by a brutal Civil War. Begin with the Senate and its assignment of equal voting power to California and Wyoming; Vermont and Texas; New York and North Dakota. Consider that, although a majority of Americans since World War II have registered opposition to the Electoral College, we will participate this year in yet another election that “battleground states” will dominate while the three largest states will be largely ignored.
Our vaunted system of “separation of powers” and “checks and balances” — a legacy of the founders’ mistrust of “factions” — means that we rarely have anything that can truly be described as a “government.” Save for those rare instances when one party has hefty control over four branches — the House of Representatives, the Senate, the White House and the Supreme Court — gridlock threatens. Elections are increasingly meaningless, at least in terms of producing results commensurate with the challenges facing the country.
But if one must choose the worst single part of the Constitution, it is surely Article V, which has made our Constitution among the most difficult to amend of any in the world. The last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms. The near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.
It was not always so. In the election of 1912, two presidents — past and future — seriously questioned the adequacy of the Constitution. Theodore Roosevelt would have allowed Congress to override Supreme Court decisions invalidating federal laws, while Woodrow Wilson basically supported a parliamentary system and, as president, tried to act more as a prime minister than as an agent of Congress. The next few years saw the enactment of amendments establishing the legitimacy of the federal income tax, direct election of senators, Prohibition and women’s right to vote.
No such debate is likely to take place between Barack Obama and Mitt Romney. They, like most contemporary Americans, have seemingly lost their capacity for thinking seriously about the extent to which the Constitution serves us well. Instead, the Constitution is enveloped in near religious veneration. (Indeed, Mormon theology treats it as God-given.)
What might radical reform mean?
We might look to the 50 state constitutions, most of which are considerably easier to amend. There have been more than 230 state constitutional conventions; each state has had an average of almost three constitutions. (New York, for example, is on its fifth Constitution, adopted in 1938.) This year Ohioans will be voting on whether to call a new constitutional convention; its Constitution, like 13 others, including New York’s, gives voters the chance to do so at regular intervals, typically 20 years.
Another reform would aim to fix Congressional gridlock. We could permit each newly elected president to appoint 50 members of the House and 10 members of the Senate, all to serve four-year terms until the next presidential election. Presidents would be judged on actual programs, instead of hollow rhetoric.