Our Undemocratic Constitution Where the Constitution Goes Wrong (and How We the People Can Correct It).

• Author: Sherry, Suzanna
• Position: Book review

OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT). Sanford Levinson. (1) Oxford University Press. 2006. Pp. ix + 233. $28.00 (cloth).

Sanford Levinson's latest book, like his previous work, is charmingly written and delightfully quirky. Aimed primarily at non-lawyers, it is meant to persuade readers that we ought to call a constitutional convention to remedy what he calls the "hardwired" defects of the Constitution: defects that inhere in the very structure of the constitutional fabric and that therefore cannot be remedied through even the most creative interpretation (pp.

23, 29). The most important of these defects, according to Levinson, are the existence and operation of the Electoral College, other problems surrounding the presidency, allocation of power in the Senate, bicameralism and the resulting opportunity for political minorities to block popular legislation, and the near-impossibility of amending the Constitution. Despite the light tone of most of the book, Levinson is deadly serious: In the course of writing the book, he says, his commitment to remedying our undemocratic, "abusive" Constitution "has moved far from an academic project (in the pejorative sense)" (p. 172). He therefore closes the book with suggestions on how to make a constitutional convention a reality.

Unfortunately, as is often the case with heartfelt visionary projects, his call for a convention suffers from two complementary flaws. He overstates the Constitution's defects and understates the risks of submitting it to a constitutional convention for revision. Reading between the lines, we might fairly attribute these flaws to Levinson's underlying motivation: He is guided by his objection to the maneuvers of the Bush administration and his devotion to the governmental ideals of Thomas Jefferson. I address each of his errors in turn.

Let us begin with the Electoral College, which Levinson says "supplies the decisive and overriding reason for rejecting the status quo and supporting a convention" (p. 82). The main thrust of Levinson's critique of our "dreadful system of presidential selection" (p. 81) is that it gives an "indefensible advantage ... to low population states" (p. 89). According to Levinson, this undemocratic allocation of power causes a variety of ills: (1) Presidents are frequently elected without winning a majority of the popular vote, and occasionally even when they come in second in the popular vote; (2) Voters in states like New York or Texas, which are reliably Democratic and Republican, respectively, might as well throw their votes away because they don't matter; and (3) Presidential candidates ignore all but a few "battleground states."

Of course, most of these problems are not directly attributable to the Electoral College. The ability of a candidate to win the White House with only a plurality of the popular vote is due not to the Electoral College but to our "first-past-the-post" method of determining winners. The other two problems derive from the way that states allocate electors, which is not mandated by the Constitution. States are free to choose how to allocate their electors, and it is only because 48 states have chosen to allocate them on a winner-take-all basis that there exist "safe" states and "battleground" states. (3) If most states divided their electors according to the percentages received by each candidate in the state's popular vote, candidates would fight for every vote in every state--and every vote would count. Alternatively, there is now a movement among the large states to agree to allocate all of their electors to whichever candidate wins the national popular vote, which would effectively eliminate all of the problems associated with the Electoral College. And on a deeper level, it is the domination of two--and only two--parties that allows the Electoral College to function in the problematic ways that Levinson describes. (4)

That leaves two problems with the Electoral College itself (and the back-up of a decision by the House, voting state-by-state, if no candidate gets a majority of electors): The election of a president who lost the popular election, and the basic unfairness of giving small states a disproportionate number of electors. The first is indeed a flaw, but Levinson exaggerates its importance. Only four times since 1789 has the Electoral College given the White House to a candidate who did not garner the most popular votes--and three of those were before 1900. (5) Moreover, all but once the popular majority got its revenge four years later, voting for the party (and twice the candidate himself) that had been cheated out of the presidency by the Electoral College. (6) George Bush is the only minority president to win the popular vote the second time around. Levinson's overstated concern with the problem of a minority president, then, might be related to his obvious loathing of Bush. (7) It might be worthwhile to amend the Constitution to eliminate the Electoral College, but one misfire in a hundred and twenty years is hardly sufficient justification for Levinson's call to consider junking the entire structure of the Constitution.

So what about the essential unfairness of the Electoral College? By giving each state the same number of electors as its total of Senators and Representatives, the theory goes, the Electoral College advantages small states and disadvantages large ones. It does give small states an advantage (at least when combined with a winner-take-all allocation of electors), but does it give disproportionate power to voters in small states? The answer, paradoxically, is that it does not. Indeed, it gives voters in large states more power, and voters in small states less, than they would have if we chose the president through a simple nationwide popular vote.

It is tricky to define voting "power," but the most satisfactory way to do so is to focus on the probability that an individual's vote is pivotal: that is, to ask how likely it is that the result would change if the particular voter voted the other way. (8) In the case of the winner-take-all regime under the Electoral College, any individual's voting power is the product of the probability that her vote would change the outcome in the state (call this P) and the probability that a change in the state's electoral votes would change the outcome of the election (call this S). It can be shown mathematically that P is approximately 1/[square root of population of voters], and that S is approximately equivalent to the state's voting population. (9) Since states do not differ much in the ratio between total population and voting population, (10) we can simplify the equation by using state populations. Any individual's voting power, then, is

P x S

or

[1/[square root of population] x state population

or

the square root of the state population

Thus, the larger the population of the state, the more voting power each of its citizens has. In short, a majority of the American public (in whom Levinson places so much trust) may be right in failing to abolish the Electoral College.

The Constitution also creates other problems surrounding the presidency, according to Levinson. In particular, he objects to the lack of clear limits on presidential power, the inability to remove a president who is incompetent but not criminal, and the 10-week delay between the election and the inauguration of a new president. The last is essentially trivial, and Levinson devotes only 5 pages to it (pp. 98-103). The others are arguable, but Levinson seems so blinded by his hatred of this President that he cannot see any advantages to the current structure.

For example, most constitutional scholars recognize that it is both impossible and unwise to delineate governmental powers so clearly that no ambiguity remains. As John Marshall famously reminded us, "it is a constitution we are expounding," and we cannot expect it to be precise in providing for every eventuality. (11) Levinson himself notes that he is "relatively dismissive of ambiguous constitutional provisions" because they do not pose a serious problem (p. 108). So why is he so irate about ambiguities in executive power? Because--he says after describing the infamous John Yoo torture memo and similar arguments as "an open invitation for those who would defend something close to presidential dictatorship" (p. 107)--"[t]he basic problem with the presidency is the possibility that the occupant of the White House is too unconstrained and can all too easily engage in dramatic exertions of power, especially in the realm of foreign policy" (p. 108). It might be that he has a particular occupant of the White...