Constitutional Dysfunction and Constitutional Criticism

Sanford Levinson has a post on the New York Times’s “Campaign Stops” blog, in which he presents a condensed version of the argument that he’s been making for the better part of a decade elsewhere: specifically, that the U.S. Constitution is profoundly undemocratic, undermines political equality, and is unnecessarily difficult to amend through electoral politics. It’s a brisk and – characteristically for Levinson – entertaining cri de cœur about the need for reviving the “democracy” part of “constitutional democracy.”

It’s hardly surprising that so many of the comments on the blog are negative. Constitution-worship is close to a secular religion in the U.S., where the invocation of the authority of the Framers is an inevitable feature of political discourse, from campaign rhetoric to barstool bullshitting (although I don’t mean to imply there’s necessarily a large gap between the two). It seems that one of the biggest barriers to a democratic reinvigoration of of constitutional politics, on popular constitutionalist lines, is the absence of political culture in which constitutional self-criticism is not only tolerated but encouraged. As Levinson notes at the end of his post, the framers of the Constitution were themselves harsh critics of the Articles of Confederation. The Constitution was born out of disruption, not continuity. Criticism of the Constitution’s own manifest flaws and shortcomings should be welcomed, not dismissed.