By Sanford Levinson Sunday, December 17, 2000; Page B02
We have crossed the constitutional bridge into the 21st century and discovered that it is rickety, maybe even falling down. An electoral system that might have made sense when devised in the late 18th and early 19th centuries has turned out to be shockingly problematic in this new millennium.
This should come as no surprise. So often, we almost literally idolize the United States Constitution, treating it with the reverence due a sacred text. But the Constitution is a most-human product, and therefore an imperfect document, with flaws and weaknesses that can threaten our stability at any time. The kind of tottering we've witnessed over the past few weeks was thoroughly predictable. But warnings that we were heading for a wreck have generally been either dismissed with a round of constitutional cheerleading, or met with denial. "It happened before, but it can't happen again," we say, when reminded of earlier crises. (Remember early 1998, when no one believed we'd see another impeachment?) Or we take refuge in the delusory belief that God has the United States in his special care.
Both responses are equally foolish, as we have seen in the post-election crisis. Our task now is to figure out how much repair is necessary to prevent a future systemic collapse.
In just this past month, several of the Constitution's "stupidities" have been revealed. Chief among these is the electoral college. Not only does this feature make it possible to deny the presidency to the candidate who wins the popular vote, it also gives a significant advantage to small states, each of which is guaranteed at least three electoral votes. This means that a candidate gets significantly more benefit from carrying, say, Wyoming and the two Dakotas, with a total of nine electoral votes, than New Mexico, which has roughly the same total population as the three states combined but only five electoral votes.
The electoral college, and the disproportionate power it gives to small states, has rightly been put under the microscope. But a number of other flawed constitutional features also deserve closer scrutiny and discussion:
How the House would pick a president. This is my choice for the most dubious feature of the Constitution. It provides that deadlocks over the choice of president in the electoral college be broken by the U.S. House of Representatives on a one-state, one-vote basis. Although this hasn't happened since 1824, when the House picked John Quincy Adams as president over Andrew Jackson, it loomed as a possibility in 1948 and 1968, when third-party presidential candidates in those years each won more than 20 votes. Even if you believe that the electoral college is a good idea, and that the advantage held there by small states is defensible, there is no defense, in 2000, for allowing Vermont's single representative to offset the entire 30-member congressional delegation of my home state of Texas in the instance of a House vote for president.
If the House ever has to select the president--provided we retain the electoral college and accept its risk of deadlocks--then it should do so on a one-member, one-vote basis, the theory of representation that the Supreme Court has endorsed now for almost 40 years. As it happens, if this year's election had come down to the House's choosing, it probably would not have mattered which rule we had, since the Republicans both hold a majority of individual seats and control 29 of the state delegations. Consider the situation, though, if only half a dozen congressional districts had gone Democrat instead of Republican, giving the Democrats control of the House. In that case, if the election had come to the House, Gore--the choice of the people as well of a majority of the people's representatives--could have been deprived of the presidency due to the happenstance that the Republicans control most state delegations.
Life tenure on the Supreme Court. The Supreme Court's role in the just-ended campaign highlighted the questionable wisdom of lifetime appointments for Supreme Court justices. One unfortunate consequence of lifetime tenure is revealed in a recent article in the Wall Street Journal, which suggested that Chief Justice William Rehnquist and Associate Justice Sandra Day O'Connor have put off resigning from the court so that their replacements could be named by a Republican president. There is every reason to believe that former justice Byron White waited, for the same purpose, until a Democratic president took office before retiring in 1993. If the United States followed the practice of many other countries--and many of the states--in imposing term limits on the justices, then the opportunity for such partisan behavior would be limited. Moreover, as Emory University professor David Garrow writes in an article in the current University of Chicago Law Review, over the years, several justices, including some in the recent past, have remained on the bench far too long, even after mental debilities made it impossible for them to serve the nation well. There is no reason to believe this is true of any current members of the court, but we should not continue to rely on the judges to have the self-discipline to set their own retirement dates.
Article V. The clause for enacting amendments is one of the Constitution's most dubious features, because, as a practical matter, it makes formal constitutional change exceedingly difficult. The problems posed by Article V are a primary reason why obvious defects in the constitutional structure, like those discussed above, have not been addressed, and why more train wrecks like this year's are possible in the future. Article V provides that two-thirds of each house of Congress must first agree to propose an amendment, which then must be ratified by three-fourths of the states. Winning the "amendment game" and changing the status quo thus requires triumphing first in both Houses of Congress and then in at least 75 state legislative chambers (for example, bicameral legislatures in 37 states plus the unicameral legislature in Nebraska). Winning the game on defense--that is, preventing formal change--requires only one-third plus one of the votes in either the House of Representatives (146 votes) or the U.S. Senate (34 votes), or prevailing in at least one house of 13 state legislatures.
Having been forewarned by last month's events, responsible political leaders have a duty to promote a serious analysis of the quality of our political infrastructure and to suggest necessary changes that will either prevent, or at least lower the cost of, future problems.
There is an alternative to constitutional amendments. It is drawn from Article V itself: Two-thirds of the states can petition Congress to call a constitutional convention, a gathering of elected state delegates to reflect on the adequacy of our present institutional structure. The current problems posed by the way we elect our presidents would certainly justify extended discussion by a cross-section of American leaders empowered to propose constitutional amendments for consideration by state conventions (as allowed by Article V) elected by the people of the states.
It would be foolish to deny that an Article V convention would raise many problems of its own. Like much of the Constitution, Article V is poorly drafted, and it provides no clue as to how, precisely, a convention would be organized. For example, would votes be cast on a one-member, one-vote basis, as in the House, or on the basis of equal votes for each state, as in the Senate? (Obviously, I favor the former.) Other problems will occur to readers. But a constitutional convention is, for better or worse, the best procedure given us, by the Constitution itself, to respond to what are the decided imperfections of the document we were handed in 1787.
To reject even thinking about the possibility of changing aspects of our governmental structure is to say, in effect, that we really shouldn't worry, that the last month has been perfectly all right and that it speaks only to the strengths, and not at all to the weaknesses, of our constitutional order. One might be touched by such displays of faith, but this is no time for constitutional cheerleading. Even the Framers recognized the possibilities of imperfections, the frailties of humans, and the importance of learning from experience.
Sanford Levinson is a professor of law at the University of Texas and the co-editor, with William Eskridge, of "Constitutional Stupidities, Constitutional Tragedies" (New York University Press, 1998).