More Democracy, Less Constitution

Abstract

I suspect that most Americans believe that constitutions ought to restrain majorities. There is broad acceptance of freedom of speech, freedom of religion, and equality under the law, even though these freedoms and rights often result in thwarting majority preferences (and even though there are disputes about the content of those rights). Unlike the British, Americans conceive constitutions as documents whose raison d’etre is to limit the power of majorities. Professor Sandy Levinson’s stimulating and engaging book, Our Undemocratic Constitution, argues that we have too much constitution and too little democracy. More precisely, Levinson argues that we ought to eliminate a number of the federal Constitution’s basic features that he regards as undemocratic. Among other things, Professor Levinson wishes to consign to the ash heap of history the Senate’s equal suffrage rule, the Electoral College, the presidential veto, and life tenure for federal judges. Although I endorse Professor Levinson’s call for a constitutional convention, share his Jeffersonian enthusiasm for amending the Constitution, and favor some of his minor amendments, I remain unconvinced by many of his more prominent proposals. As discussed later, I am not so eager to toss aside equal state suffrage in the Senate, bicameralism, or the presidential veto. I think these constitutional features further worthwhile values, even as they undoubtedly restrain majorities. Professor Levinson’s book is interesting not only for what it proposes, but also for what it fails to recommend. The logic of his proposals, resting on the undemocratic features of the constitutional provisions he opposes, suggest far more radical solutions than Professor Levinson countenances. His arguments, based on the primacy of democracy, suggest that we ought to revamp the way we elect House members and end judicial review. At the extreme, his arguments suggest that we ought not to have an American style constitution at all because such constitutions necessarily limit the power of majorities. In short, if democracy is the overarching goal, we need much more democracy and far less—if any—Constitution.