Everybody has a beef with one or another section of, or amendment to, the U.S. Constitution. And law professor Sanford Levinson, in his NY Times op-ed this morning, "Our Imbecilic Constitution," has a lot of them, from the Senate's disproportional representation to assorted gridlocks of institutional design to the Constitution's aggressive hurdles to amend itself.
My own snarling pet peeve of a beef is the 22nd Amendment, which, had it been in place in 1940, might have compelled embarrassed American histories of how President Willkie lost the Second World War. It's hard to imagine a more undemocratic Amendment to the U.S. Constitution than Republicans' anti-FDR temper tantrum embodied in the 1951 version. But give them time.
I'm sympathetic to Levinson's sweeping complaints; after all, for years I've harbored a rather subversive hankering for a parliamentary system, which would seem to offer a systemic compromise between anarchic direct democracy and the suffocating representational gridlock we now have. But of course American parliamentarianism won't happen, because 1) as Levinson notes, the Constitution is damn near impossible to amend, and 2) such an amendment to the Constitution would be its death-warranted last.
Still, I think Levinson misses the fundamental problem, which in his argument is structural, and to my mind, is temperamental.
What was truly admirable about the framers was their willingness to critique, indeed junk, the Articles of Confederation [writes Levinson]. One need not believe that the Constitution of 1787 should be discarded in quite the same way to accept that we are long overdue for a serious discussion about its own role in creating the depressed (and depressing) state of American politics.
Again, that may be true, and reasonable people will sensibly debate which structural changes should be made. Yet reasonable people today stand in near universal agreement--and I believe the framers would have concurred in profound abhorrence--that our fundamental problem is not, for instance, the institutional scandal of Mike Crapo's equal voice to Barbara Boxer's; rather, as Thomas Mann and Norm Ornstein recently said it, Republicans are the problem.
The fundamental problem begins there; and for now, it ends there. There is no way around this sticking point. No matter which intelligent reform one attempts, Republicans will kill it. No matter what progress one suggests, Republicans will block it. No matter what compromise one extends, Republicans will, in return, Fed Ex a dead fish. If you were to try to think of a party that Tony Soprano, Ted Kaczynski, Ayn Rand and Mortimer Snerd could all enthusiastically support, you'd soon be thinking, "Republican."
Mann-Ornstein realistically concede that "in the short run," Republicans won't change, although "If our democracy is to regain its health and vitality, the culture and ideological center of the Republican Party must change" [my emphasis]. Their short-term recommendation, though? It's doable. Very doable. We must demand of the political press that it do its damn job: that it mustn't "seek professional safety through the even-handed, unfiltered presentation of opposing views."
And to do this, there's not a section, not a paragraph, not a word, not even a comma of the U.S. Constitution that would require a change.