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Our broken Constitution

October 16, 2006|Sanford Levinson | SANFORD LEVINSON, a law professor at the University of Texas at Austin, is the author of "Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It)."

THE UNITED STATES Constitution may be the most revered text in the nation. It is our foundational document, which our presidents pledge to preserve and protect and which our judges continue to interpret and reinterpret Talmudically more than 200 years after it was written. It is the symbol of the American democracy that we often insist is the greatest in the world.

Yet in reality, the Constitution is so far from perfect that it threatens our ability to resolve the daunting problems facing our society. It has created a political order that suffers from a "democratic deficit," a term often applied to the European Union but, alas, ever more accurate with regard to our own society.

This is not a mere theoretical failing. At the moment, for instance, more than half the country strongly disapproves of Congress and the president. Almost three-quarters of those polled believe that the United States is headed in the wrong direction. These are not the responses of an electorate that is fundamentally satisfied with the status quo.

One might argue that this is transitory, a matter of momentary antipathy toward today's incumbents -- and that a turnover in next month's elections will bring renewed joy to the discontented. But that would be a mistake. It is a grim reality that our Constitution itself ensures that the results will be of far less significance than one might hope.

Begin with the fact that, whatever happens, George W. Bush will continue to occupy the White House until Jan. 20, 2009, despite the fact that about 60% of Americans disapprove of the job he's doing. Most political systems around the world have mechanisms by which leaders who lose the public's confidence can be removed. A model in this regard is Britain, where the Tories unceremoniously dispatched Margaret Thatcher when she was no longer found suitable as their leader, and where the Labor Party is in the process of doing the same with Tony Blair. Under our Constitution, although criminals can be removed, mere incompetents are protected. One need not adopt a parliamentary system in order to construct a system by which Congress could declare "no confidence" in the president and force a replacement.

For now, then, Bush retains his powers -- including the power to veto legislation. This is another extraordinarily undemocratic element of the U.S. system. It allows one man to override the wishes of strong majorities and, in effect, become an independent third house of an already cumbersome legislative process. This "three-house" aspect of our legislative process is one explanation for the difficulty -- often, the impossibility -- of passing innovative legislation and having it signed into law.

Californians have a particularly overwhelming reason to disrespect the Constitution: Although 35 million people live within its borders, it has the same vote in the U.S. Senate as does Wyoming, which has roughly 500,000 people.

How can you defend a system under which Barbara Boxer was returned to the Senate in 2004 with about 6.5 million votes at the same time that Alaska's Lisa Murkowski won the exact same job and power with about 150,000 votes? No greater deviation can be imagined from what we like to believe is a national commitment to "one person/one vote."

Again, this is not merely a theoretical problem. Research has demonstrated that the control of 25% of the Senate's votes by states with only 5% of the national population has led to a remarkable flow of federal dollars from highly populated states such as California and New York to thinly populated but politically advantaged states. Alaska's infamous "bridge to nowhere" is all too emblematic of this reality.

In a real sense, California has even less power in the Senate than do small states, given the way that effective power is distributed. The Democrats, for example, draw their leadership almost exclusively from small states. Over the last 30 years, that party's leadership has come from Montana (Mike Mansfield), West Virginia (Robert Byrd), Maine (George Mitchell), South Dakota (Tom Daschle) and Nevada (Harry Reid). In the same period, Republican leaders came from Tennessee (Howard Baker and Bill Frist), Kansas (Bob Dole) and Mississippi (Trent Lott).

Nor does California benefit as much as one might believe from its having by far the largest number of electoral votes in the country. The reasons are simple: First, small states, guaranteed at least three electoral votes, have disproportionate voting power in the electoral college. Second, the structure of the electoral college has created a system whereby presidential candidates focus only on "battleground states" in which the electorate is closely divided.

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