Symposium | The Democracy Constitution

What Is This Project, Anyway?

By Sanford Levinson

Tagged ConstitutionDemocracy Constitution

For more than a decade, it has become almost a given in much public discussion and punditry that the American political system is in trouble. In 2008, after all, Norman Ornstein and Thomas Mann, two well-established Washington insiders, the first based at the American Enterprise Institute, the second at the Brookings Institution, published The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, followed in 2012 by their even more depressingly titled It’s Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism. That same year Thomas Friedman capped a notable series of essays in The New York Times at the time by suggesting that the United States could use its own version of the Arab Spring. Polling data showed that most Americans had ever diminishing confidence in our basic national institutions, especially Congress. Most Americans believed the country was headed “in the wrong direction.” (Even now, incidentally, when there has been a “Biden bounce,” a majority of the country nonetheless believes we have no great reasons for optimism about our future.) And the year before, in 2011, Standard and Poor had downgraded American debt from AAA to AA status because of “our view that the effectiveness, stability, and predictability of American policymaking and political institutions have weakened at a time of ongoing fiscal and economic challenges.” Yet all of these purveyors of gloom hesitated even to suggest that the Constitution itself might be part of the problem, even if Ornstein and Mann did include the term “constitutional system” in their title. Americans would have to adjust themselves to the constraints of their 1787 Constitution. No reform was really necessary (or, perhaps as much to the point, truly thinkable “inside the Beltway,” save for the exception of Fareed Zakaria).

Is that really so plausible, either then or, even more, now? In a co-authored book tellingly subtitled How America Fell Behind in the World it Invented and How We Can Come Back, Friedman joined in declaring that “for America’s remarkable history, the Constitution deserves a large share of the credit.” Even if that is perhaps true, though that is easier to assert than to demonstrate, can one really believe that it deserves no blame at all for what has gone wrong? For starters, consider the slaughter of 750,000 Americans in the 1860s to eradicate the “original sin” of chattel slavery that was protected in 1787. One might argue, though, that justified discontents about the operation of our political system helped contribute to the election of Donald Trump as President in 2016 (putting to one side, of course, the fact that he lost the popular vote by almost three million votes and actually got to the White House only because of the egregious Electoral College).

Nor, unfortunately, could one necessarily find more probing analyses within the American academy. Because the basic structures that constitute our constitutional order are almost never the subject of litigation before the Supreme Court, almost everyone who teaches or writes about “constitutional law” within the legal academy, as I have done since 1980 at the University of Texas Law School and elsewhere, simply ignores fundamental aspects of our constitutional order. This means, among other things, that students graduate from our elite law schools, and often go on to inhabit positions of “leadership,” without once having been forced to engage with the implications of the “hard-wired” structures established in 1787 and rarely amended since then. These include (but are not limited to) the Electoral College, the Senate, the fixed presidential term, life tenure for Supreme Court justices and, perhaps most importantly, Article V of the Constitution, which makes it extraordinarily difficult to achieve any formal amendment of the document.

An eighteenth-century document, whatever sense it might have made then—and I always take care to explain that I do not engage in “Founder bashing,” for they were doing the best they could to meet the “exigencies” (one of their favorite words) generated by what Alexander Hamilton, for example, referred to as the “imbecility” of the system established by our first constitution, the Articles of Confederation—has become, quite possibly, a clear and present danger to our national survival in the twenty-first century. But that possibility was almost never even mentioned because, most certainly, no cases before the Supreme Court addressed that possibility, and legal academics are pathologically obsessed with the questions before that body.

If legal academics and pundits tended to fail to “connect the dots” between our political troubles and the Constitution, political scientists were little better. In the course of a generally commendatory review in these pages of Harvard professors Stephen Levitsky’s and Daniel Ziblatt’s How Democracies Die, which raised grave questions about the health of our own polity, I criticized them for a total failure to suggest that one reason for a democracy’s death might be the fact that it has a constitution and set of formal institutions that make it inordinately difficult to confront the challenges facing it. Why should people support a political system if they rightly feel that it is unresponsive to major problems—and structured in such a way that makes responsiveness unlikely in the future?

To put it mildly, I have been, for a long time, frustrated by the paucity of any public discussion of the degree to which the United States Constitution might be the problem—at least a partial explanation for our many discontents—and not the solution to them. My most recent book, for example, written with my wife Cynthia and ostensibly directed at teenagers, is Fault Lines in the Constitution (which has been published as well in a “graphic novel” version). The title, of course, is taken from geology, and it refers to tectonic plates far beneath the earth’s surface that, upon shifting, can wreak earthquakes and tsunamis on the world above. We identify 20 such “fault lines” and describe the havoc they have inflicted—and can in the future continue to inflict—on us. Some of them are well known, such as the Electoral College. Some of them, such as the near impossibility of reconstituting a national government should a terrorist attack or pandemic kill or disable dozens or hundreds of members of the House and Senate, are, however truly important, known only to specialists (including Ornstein, who has worked hard, and alas unsuccessfully, to bring it more to public attention). But all of them present genuine problems for anyone thinking of navigating our collective future.

Whatever sense the Constitution might have made then, it has become a clear and present danger to our survival in the twenty-first century.

So the reader can imagine my gratitude to Michael Tomasky when he invited me, back in the fall of 2019, to convene a group of progressive citizens (almost all, to be sure, academics) to consider whether in fact constitutional reform—and not only specific policies—should be on the progressive agenda. We originally envisioned a group of 55, not at all coincidentally the number of delegates at the Philadelphia Convention in 1787. I quickly agreed and issued many invitations, most of which were accepted. As John Lennon once sang, life is what happens while one is busy making plans, and COVID-19 surely changed our initial plans to “meet,” largely on email but, perhaps, gathering as well in Washington or Philadelphia as part of the overall plan. And, of course, many of the people who originally accepted discovered, altogether reasonably, that the duties of childcare and other unexpected responsibilities made it impossible for them to devote the time required for the project. The initial plan to present Tomasky a draft constitution last May that could be published in the Fall 2020 issue of Democracy quickly went by the boards. Instead, he received the draft, with accompanying essays (including this one) expressing both support and dissent from our collective decisions, at the beginning of April 2021.

As a matter of fact, though, Zoom fundamentally transformed our experience very much for the better. The “delegates” met on Zoom more than 20 times, beginning just after Thanksgiving 2020, and ending on March 28, 2021; the final session lasted more than three hours. And those general gatherings were complemented by many more such meetings by our own indefatigable Committee on Detail and other subcommittees that put in a stunning amount of time into initiating ideas and transforming the sometimes inchoate notions into the specific language of the document before you. We were much aided in our deliberations by what I called our own “Virginia Plan,” referring to the detailed outline of constitutional revisions presented at the outset of the Philadelphia Convention by James Madison and Edmund Randolph, Virginia’s governor. Jeff Rosen, the president of the National Constitution Center, had commissioned draft “constitutional revisions” from three quite different groups of “libertarians,” “conservatives,” and “progressives.” The last group, our “Virginians,” consisted of Caroline Fredrickson, the former director of the American Constitution Society, Jamal Greene, and Melissa Murray, the latter two professors at Columbia and NYU, respectively. As with the original Virginian Plan, their draft was extremely valuable as a point of reference, although many of its specifics were modified during our own deliberations, almost always in the direction of even greater change than they had envisioned.

If it turned out to be quixotic, especially given the circumstances, to expect 55 busy people in the Year of COVID-19 to expend scarce time and energy on what quickly became known as the “Tomasky Project,” the draft before you nonetheless represents hours of thoughtful deliberation—and sometimes sharp differences of opinion—by more than 40 people who participated in one form or another, even if only a solitary email. It is well to be reminded that only 42 of the original 55 delegates to the Philadelphia Convention stayed the course, and three of them dissented rather than join the others in adding their signatures.

We were under no illusions that we were in fact truly similar to the Philadelphia Convention. Putting to one side that persons of George Washington’s stature were unavailable to lend their particular credibility to the enterprise, we all recognized that whatever we suggested was certainly not going to be sent on by Congress to the states (or, as we suggest, to the national people) for ratification. To some extent, then, the exercise was necessarily “academic,” not only because most of us are in fact academics, but also because it can have only limited immediate impact. That being recognized, however, we all acknowledge as well that Tomasky’s willingness in effect to turn over nearly the entire issue of Democracy to the results of our project might in fact lead to the kind of long overdue public discussion that is so much needed. Assuming there was ever an excuse for the failure of very able writers and political leaders, genuinely concerned with the multiple “discontents” pervading our polity, to connect the dots, it is now unavailable.

Tomasky not only solicited our collective participation. He also charged us to be “audacious,” to think boldly. Perhaps because we need have no concern that Americans will in fact be asked later this year to ratify our proposals, we were not overly sensitive to what might “sell” politically this year or next. Ideally, our efforts will instead provoke a national discussion over several years, with, inevitably, both acceptance and rejection of some of our specific ideas, just as we rejected some of the proposals of our own “Virginia Plan.” The invitation to be bold almost necessarily produced not only wide-ranging discussion, but also sharp differences of opinion. (One person’s audaciousness may be another’s foolishness, after all.) Thus, from day one participants were informed that they would have the opportunity to issue dissents from anything we collectively created.

I would be truly surprised if a single one of us takes complete delight in every single part of the draft. As at Philadelphia—and any other process of collective drafting—compromises and disappointments were inevitable. As pleased as I am with our handiwork, there are aspects about it that disappoint me. This most definitely does not instantiate a non-existent “Levinson constitution” that was in my pocket, waiting only to be adopted. Were it up to me, there would be a process by which presidents could be fired via a vote of legislative “no confidence” or even, as in Wisconsin and California, as the result of a national recall election. Large cities would be allocated their own senators, accountable only to their own citizens and not, for example, the anti-urban portions of large states unsympathetic to their plight. I would even have allowed for the possibility of secession by states sufficiently alienated from the new constitution. For better or worse, I lost on all of these, after full discussion and fair votes. So be it. I’m sure that other participants had similar experiences. It would be truly foolish to believe that this represents the “last word” on what “progressive” constitutional reform should look like. My hope—and presumably that of everyone willing to endorse the draft—is that it is “good enough” a set of “first words” that can ultimately contribute to a “new and improved” constitution drafted by a far larger and more diverse group than our own.

So, in no particular order, what are some of our more notable suggestions, whether “audacious” or not? Abolishing the Electoral College might well be perceived as picking low-hanging fruit. Although it is truly discouraging that neither 2000 nor 2016 generated any national movements to abolish the Electoral College—the last truly serious attempt was in 1969, when white supremacist senators Sam Ervin of North Carolina and Strom Thurmond of South Carolina successfully filibustered a proposed constitutional amendment that had received the requisite two-thirds support of the House of Representatives—it is hard to describe our proposal to do so as “audacious.” Surely there are few “progressives”—or, perhaps, even the general populace—who truly embrace this relic of the eighteenth century. Every Gallup Poll taken since 1944 has revealed popular disapproval of the method by which we select our presidents. Only once, in 2016, was the number less than a majority of those polled, and even then, the 49 percent in favor of amending the Constitution to rid us of the Electoral College was greater than the 47 percent in opposition. The most recent Gallup poll, in September 2020, indicated that 61 percent of the public favored abolition, and only 38 percent supported its retention. It would be astounding if the level of support of this truly “exceptional” procedure for selecting our chief executive had increased since the November election and the shenanigans of Donald Trump in refusing to accept the validity of the election by putting pressure on a small number of states to reverse their assignment of electoral votes. The major explanation for its maintenance is not public opinion, but, rather, Article V and the almost insurmountable hurdles it places in the way of constitutional amendment.

About the Electoral College: Every Gallup Poll taken since 1944 has revealed popular disapproval of the method by which we select our presidents.

So our own Article 8 may perhaps merit the term “audacious” inasmuch as it makes it far easier to amend our constitution. Indeed, there was even a proposal that our text begin, following the new Preamble, with the article on amendment, instead of Article I setting out the rights that most people might identify as the “essence” of what constitutions are really about. That alternative placement would have highlighted two things: one is the importance of structures and formal procedures in actually achieving rights. Even if one shares Madison’s skepticism about “parchment barriers” and the ease with which they could be breached by governments eager to do so (often, as we have seen throughout American history, with the approval of the judiciary), the basic structures and procedures, including those required for formal constitutional amendment, are not so easy to ignore (or breach). The fact that the Twentieth Amendment—which was innovative when in 1933 it moved up from March 4 to January 20 the Inauguration Day for new presidents, thus shortening FDR’s first term in office—nonetheless disserves us almost 90 years later by forcing us to continue to wait many long weeks following Election Day before installing a new President. This explains why Donald Trump remained President of the United States, with all of his malignity, until high noon on January 20 and therefore could lead, as the sitting President, the January 6 insurrection. It doesn’t matter, legally, that that has become a potentially threatening feature of our Constitution, in the absence of a constitutional amendment changing things.

In a 2006 book, I described Our Undemocratic Constitution. Our amendment article, however, makes it far easier to amend the constitution we place before you, to come closer to what Lincoln called “government by the people.” It also encourages greater sensitivity to what Madison in Federalist 14 called the “lessons of experience” that would compel a truly alert citizenry to improve its political system rather than engage in mindless acceptance of the status quo. Our article therefore instantiates the general embrace of a more democratic constitution than the one given us in 1787, drafted by a group, including Madison, that was in fact highly suspicious of democracy in any modern sense.

But perhaps Madison might even have agreed with what might be the most audacious decision of our group, which provoked surprisingly little internal dissent. That is the “defanging” of the United States Senate by doing to it more or less what the English did to their own House of Lords in the twentieth century, limiting its power to that of a “suspensive veto” that allows only delay of legislation. Our constitution would give the Senate up to four months to hold hearings of its own, deliberate, and then force the House of Representatives to take a “second look” at legislation vetoed by the Senate. But senators can no longer kill legislation they do not like. The House will always prevail in contests between the two branches. The President retains a veto power, but a far weaker one than is currently the case, where the requirement for a two-thirds vote in both the House and Senate means, as a practical matter, that presidents win well over 90 percent of all veto contests. Just as importantly, a weakened veto power limits the ability of presidents to use even the threat of a veto to shape legislation in ways that might contravene well-founded public opinion (perhaps to bolster their chances in re-election campaigns that, because of the Electoral College, focus on their base in a relatively few “battleground states”). And our revised Senate has no role at all in overriding presidential vetoes. Senators get one say—the “suspensive veto,” and that is it.

Madison himself described the Senate as created in Philadelphia as an “evil,” because of its assignment of equal voting power to each state. To be sure, he ultimately pronounced it as “lesser evil” to the greater evil of having no Constitution at all, inasmuch as Delaware and other small states threatened to walk out of the Philadelphia Convention and to torpedo to the entire project of reforming the “imbecilic” government created by the Articles of Confederation. However, an evil it surely was, and it continues to be a true “evil” in the twenty-first century. Senators representing a minority of the population, from states that are themselves often unrepresentative of the modern reality of a vigorously diverse, multi-cultural, urban America, play an indefensible role in the legislative process. I am sure that I despise Mitch McConnell as much as any progressive, but I also recognize that McConnell has the power he does only because of the Constitution. And his behavior is utterly rational insofar as he devotes all of his energy to maximizing the interests of his own political party and opposing anything that would enhance the possibility that a Democratic President would be reelected. In all parliamentary systems, there is nothing questionable about the fact that the leader of the opposition party opposes the programs of the government. (After much debate, we voted to retain a presidential system instead of shift to a parliamentary system, but that might largely have been because of what political scientists call “path dependence,” the stickiness of decisions once made that basically seem undoable at a later date. There is, after all, much to be said in favor of parliamentarianism.)

The United States Constitution was written by people fearful of the idea of a genuine government unless it was led by anti-partisan and public-spirited people, as they imagined themselves to be. That vision turned out, even by 1800, to be a delusion. Partisan conflict brought us close to civil war when resolving the electoral vote tie between Thomas Jefferson and Aaron Burr, and, of course, such a war broke out 60 years later. The system of “checks and balances” leads to altogether predictable gridlock and the kind of partisan animosity that we now call “polarization.” This is the reality recognized by Ornstein and Mann, even if they resolutely refuse to confront the possible desirability of basic constitutional reform.

There was much discussion of reforming the Senate by changing its composition, which we do somewhat. California, Texas, and other larger states now get more than two senators, but nowhere near the number that would be required to meet the ostensible standard of one-person, one-vote declared as central to our democratic system by the Supreme Court in 1964. (And, as already noted, the group as a whole voted down my own proposal to give America’s largest cities, including New York, Los Angeles, Chicago, and Houston, senators of their own. Similarly rejected was Larry Sabato’s proposal to add a number of ex officio members of the Senate, such as former presidents, vice presidents, heads of the Federal Reserve, Supreme Court justice, etc.) So we ultimately agreed to limit the actual power of the Senate; the House of Representatives will, for better as well no doubt on occasion for worse, actually take on the role of governing. Abolishing the filibuster is not enough, for even if it were abolished, that would still allow Senate majorities that in fact represent far less than 50 percent of the public to control the agenda. The last three nominees to the Supreme Court—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were all confirmed by senators whose constituent were less than 45 percent of the country (after being nominated, of course, by a president who himself failed to receive a popular majority).

Equally audacious, we presume, is the suggestion that in addition to the standard two houses of Congress, the House of Representatives (now elected, after much discussion and opposition from those who believe that more frequent elections are conducive to a better democracy, for four-year terms) and the (now defanged) Senate, there be a third House. This would consist of representatives of the almost 575 Indigenous Nations whose lands and political autonomy were ruthlessly taken by alien settlers beginning in the seventeenth century and extending unto the present. If it is important to recognize the continued existence of American states, which we do by continuing to elect representatives and senators by state, then we must come to terms with the fact that it is insufficient to tell members of the Navajo or Cherokee Nations, for example, that they should be satisfied with only the opportunity to vote in Arizona, North Carolina, or Oklahoma elections for representatives and senators. This addition to our draft reflects the participation of three professors who teach Indian law, one of whom, Stacy Leeds, a former Dean at the University of Arkansas Law School before moving to Arizona State, is an enrolled member of the Cherokee Nation. I can personally testify that this proposal never would have occurred to me—and I suspect most participants—without their participation, a reflection of the practical importance of a “diversity” that was, obviously, wholly lacking in 1787 and in fact was rarely present in American politics until recent decades (and is still deficient in the present halls of Congress).

In 2021, one of the most glaring problems within the American polity involves voting. Most obvious, especially because of recent events in Georgia and Texas, is the attempt of state legislatures to engage in naked attempts at suppressing the turnout of voters. But, of course, there is also the problem of political gerrymandering, an old American tradition that has metastasized in our own times because “improvements” in computer systems make it possible for political parties and their candidates to choose their voters with extreme precision instead of the other way again. Without significant constitutional reform, it is all too thinkable that “we the people” would be governed by a president chosen by a minority of the voters (but with a majority in the Electoral College), allied with a Senate whose majority represents significantly less than a majority of the public and a House of Representatives that, because of political gerrymandering, has a Speaker of the House presiding over a majority caucus that itself received considerably fewer votes nationwide than did candidates of the “minority” party. Our constitution specifies that representatives can be elected either in single-member districts (with ranked-choice voting) or in multi-member districts in a manner that would allow proportional representation. And, by the way, there will be considerably more representatives inasmuch as districts will be capped at 500,000 residents, as against the roughly 750,000 currently “represented” by each member of the House.

I hope that this product of a collective effort of intense discussion will contribute to changing our public discourse about the Constitution.

Yet another “audacious” proposal is to establish a National Voting Commission that would be in charge of assuring a fair process at least of elections for national office. Even if one properly dismisses the fantasies of a “stolen election” by Trumpers, it would be foolish to proclaim that the United States—and, more to the point, each of the 50 states that under the current Constitution is in charge of most important details of elections—has an election system that we can truly be proud of. The American Revolution, it is often said, was sparked by the felt injustice of “taxation without representation.” One might wonder how much longer an aggrieved popular majority will accord legitimacy to a political system that is so stacked in favor of rule by electorally favored minorities. It is important to realize that the “rigging” of our elections is baked into the Constitution of 1787, even as amended. At the very least, the proposed constitution tries to assure that anyone elected can make a plausible claim to represent a majority of the electorate instead of simply coming in first, with a minority of the votes, in a “first-past-the-post” election.

One of the most interesting aspects of our deliberations was the general suspicion that was voiced about the role of the judiciary. Perhaps it suffices to say that Earl Warren and William Brennan have decisively left the building. More to the point, “progressives” may be reverting to their historical suspicion of elite judges. The historical role, after all, especially of the federal judiciary until the relatively brief period of the Warren-Brennan Court, was to safeguard particularly the property interests of elites against democratic change and, especially, any economic redistribution. Again, as with the Senate, discussion veered back and forth between “reforming” the federal judiciary in a variety of ways, including appointment and confirmation, and at least somewhat “neutering” it by limiting their powers, regardless of who was on the bench. Ultimately, a combination of both was chosen. Joining many others across the political spectrum, our group of “progressives” overwhelmingly supported eliminating life tenure for members of the Supreme Court. Ultimately, single 16-year terms were chosen. What is more surprising, perhaps, is the endorsement of an even number of judges on the Court, so that we would no longer face the specter of 5-4 decisions (and the attention on a single nominee whose confirmation could “flip” the Court). If the number of justices is limited to eight, the number we offer as a starting point, that means that a new justice would be appointed every two years. Moreover, we require that judges be confirmed by super-majorities. No longer could an Amy Barrett become a lifetime member of our apex court without receiving a single vote from the “opposite” party.

But, as readers will see, there were also other limits placed on the ability of the judiciary to invalidate national legislation. Oliver Wendell Holmes once said, “I do not think the United States would come to an end if we [judges] lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.” I think it is fair to say that most of us agree, even if we preserve the Court’s “power to declare an Act of Congress void” when the Court by a decisive supermajority vote agrees that it violates the clear commands of the Constitution. Otherwise, the national legislature should generally prevail. That, after all, is what democracy generally means.

One should not ignore some audacity with regard to “rights” as well, even if one believes that structural reforms are ultimately more important in determining whether the often-majestic aspirations contained in assignments of rights will in fact be realized. This is true especially because many require bold action by Congress; reliance on courts is often simply a “hollow hope.” We do, however, firmly endorse as a constitutional imperative upon Congress that it work to guarantee a basic income and right to work to all Americans, as well as a guaranteed right to medical care and education, not to mention a habitable environment. One might easily believe that we constitutionalized Elizabeth Warren’s proposal to place a quite modest 2 percent wealth tax on the very richest Americans. “Wealth” is defined as a significant multiple of the salaries we are willing to pay members of Congress. Currently, we pay senators, for example, $175,000 per year. That means that one would have to have $35,000,000 in amassed resources before having to pay the 2 percent tax on all wealth above that. If, as would be desirable, we voted to pay public servants more—or simply peg the baseline to the President’s salary, currently $400,000, then the protected floor for the ultra-rich would be raised concomitantly. Still, such a “wealth tax” would dramatically confirm that we are all “in this together,” as it were, and that those who succeed wildly, in part, at least, because of benefits provided by the national government, should be expected to help support those who have been less successful (often, of course, because of blind bad luck).

Some of the criticisms of our draft will undoubtedly focus on the particular institutional reforms and their likely consequences. But note should be taken of a quite different critique. Yale Law School professor Jack Balkin has coined the term “constitutional rot” to refer to what can be truly described as a decadent political culture that makes maintenance of a liberal constitutional democracy precarious, whatever institutional structures may be. This is, in many ways, congruent with the earlier mentioned analysis of Levitsky and Ziblatt. Going back to Montesquieu, who was in fact the most often quoted political theorist in The Federalist, many writers believed that a “republican form of government” canonized in the Constitution itself required that its citizenry retain a kind of “civic virtue” by which their selfish instincts would be tamed in order to achieve some collective good. The Preamble in 1787 referred to the importance of a commitment to the “general welfare,” a term retained in our own revised Preamble.

Instead, as Balkin notes, all of James Madison’s fears about the baleful realities of powerful “factions,” defined by Madison as groups inimical or even only indifferent to achieving the public good, have been amply realized. This is precisely what is captured by the notion of political polarization, when factional armies clash by night, sometimes only metaphorically, but sometimes all too literally. This “cultural” or socio-psychological understanding of constitutional politics is surely valuable; it would be foolish to say that one can talk about a “well-designed constitution” without paying any attention to the actual social configurations and cultures of an actual polity. An “epistolary exchange” that we authored together, Democracy and Dysfunction, spelled out our arguments at length. I remain convinced, though, that even if one must of course pay attention to political culture, it is foolish to deny the importance that formal institutions—the most obvious example being the Electoral College—can play in political systems. Even if it is true that cars with deficient brakes can drive reasonably well along level roads, that is not the case when drivers choose to drink and when hilly curves present themselves, particularly if there are no guardrails to prevent careening down a cliff. Some of us believe the United States is now in the latter situation. We must pay some attention to the structures created in 1787 (and maintained, more or less, since) and whether they need attention. Obviously, most of us who met over the past months believe strongly that this is the case, even if it is certainly the case as well that our general culture needs attending to.

I have on many occasions described the election of 1912 as my favorite presidential election inasmuch as three of the candidates, Woodrow Wilson, Teddy Roosevelt, and Eugene Debs, were all constitutional reformers, while William Howard Taft was by far the most able defender of the established constitutional order. Taft, of course, was trounced, and it is telling that the decade featured several important constitutional reforms, including, it should be acknowledged, the Prohibition Amendment supported by many progressives concerned about the toll that alcoholism was taking on working-class Americans and their families. But we also got the popular election of senators, the income tax, and women’s suffrage. Mindless “veneration” gave way to vigorous discussion of what a twentieth century America needed.

We have lost that belief in what Hamilton in Federalist I called our own capacity for “reflection and choice” as to how we wish to be governed. The election of 2012, for example, featured a former president of the Harvard Law Review (and professor at the University of Chicago Law School) as well as a graduate of the Harvard Law School, neither of whom offered a single interesting observation about the Constitution of the United States. Obama’s “audacity of hope” did not extend at all to the “audacity” of raising any questions at all about the suitability of the Constitution for our present reality. That attitude must change, and I hope that this product of a genuinely collective effort of intense discussion will contribute to changing our public discourse about the Constitution.

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Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School and is a Professor of Government at the University of Texas at Austin.

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