March 13, 2012 11:56AM

Our Imperfect Constitution

The distinguished legal scholar from the University of Texas, Sanford Levinson, has written a new book, Framed. Here's a brief description from the Oxford University Press:

In Framed, Levinson challenges our belief that the most important features of our constitutions concern what rights they protect. Instead, he focuses on the fundamental procedures of governance such as congressional bicameralism; the selection of the President by the electoral college, or the dimensions of the President's veto power--not to mention the near impossibility of amending the United States Constitution. These seemingly "settled" and "hardwired" structures contribute to the now almost universally recognized "dysfunctionality" of American politics.  Levinson argues that we should stop treating the United States Constitution as uniquely exemplifying the American constitutional tradition.

Levinson makes a basic point that I agree with: there is too much reverence for our fundamental charter (though certainly not enough in certain places!) and that we should seriously consider changes that would improve our polity.

In that connection, let me draw some attention to  a symposium that I participated in a few months ago. The Tennessee Law Review asked various academics and lawyers to come up with ideas for improving the American Constitution. My proposal was and is to amend the amendment process itself. My thesis is that the Framers made the amendment process very difficult with the idea that they were safeguarding their charter for limited government. Let's face it—it did not work. What we have seen is a reinterpretation of the charter that has rationalized the expansion of federal powers. By making the amendment process easier, I argue that we can bridge the gulf that exists between our legal charter and the government that we actually have. I also think we could expect to see more candor in our constitutional discourse. Prof. Levinson was asked to comment on all the symposium proposals and we found ourselves in agreement on this idea. Here's Levinson:  "I am glad to specify my agreement with [Tim Lynch's] argument that perhaps the most most valuable single amendment would be to make the process of amendment significantly easier than it is now." I will have to consider Prof. Levinson's other concrete proposals in Framed to see if the case has been made for other changes as well.

For related Cato scholarship, go here and here.