I graduated from Law school at the University of Texas/Austin, and I took several constitutional law classes, always my favorites. I never really planned to practice law, so homing in, to the degree that I could, on the legal issues that simply interested me seemed a reasonable way to go about getting that degree.
I got my undergraduate degree on a geographically huge campus. Choosing classes was heavily influenced by time-of-day and location on campus. Walking from one end of the campus to another at the University of Texas was a trek! Law school was easy, but time-of-day still counted! My constitution classes were the exception. I took them whenever I could get them!
Professor Sanford Levinson was also a favorite! I knew that I would not agree with Professor Levinson politically (and boy, do I not), because I remembered that he had been rumored to be on Bill Clinton’s short list to serve on the Supreme Court – that is a sure red flag if you’re inclined to look at things that way! But I also assumed that he would be a brilliant professor of constitutional law, and he was. He also was unfailingly fair to me, an often lonely voice of dissent.
It isn’t so surprising, then, to find myself diverging from the professor’s views on two issues, one is changes to the Constitution (https://law.utexas.edu/magazine/2024/11/06/constitutional-convention-2-0/) and the other is Professor Levinson’s views on the recent election, which I may write about later. No matter the particulars on changing the Constitution, I would be reluctant solely on general principle. I am one who firmly believes that the founders – steeped in the issues, circumstances and turmoil of the day – most likely got it right in every instance.
Professor Levinson asks, “Is it time for America to hold a national constitutional convention?” My answer is an unequivocal “no.” One day, it may be absolutely necessary to call a constitutional convention, perhaps to solve Professor Levinson’s thorny, albeit hypothetical, problem of a terrorist attack on the Capitol that wipes out our leadership.
The professor points out that, with the constitutional requirement that House members be elected – never appointed, as senators can be – it could take months to get a functioning government back in place. But consensus conventions belong in the unicorn category these days and, instead, a constitutional convention would likely be unpredictable, often hostile and always chaotic. The timing could still be an issue.
9-11 is the only event in our history that might have put us in such a position. Changing the founders’ vision because a single event in our nearly 250-year history came close to creating a freak occurrence seems somewhat rash. If such a thing became necessary, a procedural resolution at the outset could move things forward swiftly and take care of the problem.
“Polling indicates a stunning lack of approval – or ‘confidence’ – in our basic institutions.” That may well be true, but if my grandchildren and their friends are any indication, it could be that resuming the teaching of civics, our founding, and the Constitution in our elementary and secondary schools might right that ship. Ignorance can be a dangerous thing. How many reading this article have confidently defined our government as a democracy?
It isn’t a democracy and never has been. We are a constitutional federal republic. But, gee, that sounds complicated! No, it isn’t. The reason that it may seem that way is that we don’t teach our children about this remarkable country. If they had been taught about our government and our history from the time they were small, they would have no difficulty identifying our system of government, and supporting it.
The professor also dubbed our Senate as “indefensible malapportionment.” I don’t agree. Senators are not meant to represent individuals – that job is entrusted to House members who are elected directly. Senators were intended to represent the collective voice and interests of their states and to balance, somewhat, the enormous power that would devolve to the major cities and the most heavily populated states.
Granted, the structure of the Senate was a compromise. The professor correctly points out that James Madison concluded that it was a lesser of evils, the other choice being no Constitution at all! But I will take this particular “evil” over having all of the top leadership in my country decided by New York City, Chicago and Los Angeles any day. Is anyone in America clamoring to turn the rest of the country into downtown Los Angeles?
The Senators representing their state’s, not their neighbors’, interests serve a different purpose and represent a different constituency in government. And it makes perfect sense.
Professor Levinson expressed his view that our Constitution presents “a clear and present danger to our national survival.” Wow!! He goes on to point out that given the importance of the United States in the world, a danger to our survival means a danger to the survival of mankind. With all due respect, that’s nonsense. America is in no danger of destruction. To the contrary, Americans loving and supporting the founding documents has sustained us for all these generations and guarantees our survival.
The professor attempts to buoy his argument that amending the U.S. Constitution need not be difficult by reminding us that state constitutions are amended all the time. The two situations are not remotely similar. I’ve worked every level of politics. Organizing a local election is a far cry from organizing a consensus on a national level. The argument ignores so much.
Texas ranks second in both geographic and population size. It is also very diverse. But Texans, collectively, share many more thoughts, culture, opinions, experiences and history with each other than they do with citizens of New York, California or Illinois. The very reason that the founders believed that an equal number of senators should represent the collective views of each state is also the very reason that it would be extremely difficult to amend the U.S. Constitution.
States’ interests don’t always coincide, and no one wants to get short-changed every time. Some decisions need to benefit equally.
Professor Levinson correctly suggests that a national constitutional convention needn’t mean that we must scrap all that is good in our Constitution. Very true. But the professor’s interpretation of Hamilton’s and Madison’s words that we must learn “the lessons of experience” isn’t the same as mine. “Experience” has taught me that the U.S. Constitution, nearly 250 years later, still functions as though inspired by God. And our Constitution still protects America and Americans as though inspired by God.
Leave it alone.
