Still, Levinson signed. In , Levinson returned to Philadelphia for the opening of the National Constitution Center, the sprawling museum and exhibition hall dedicated to celebrating the document. Visitors were again invited to pass judgment on the work of the founders. But I came to see that the system just does not work anymore.
The outputs fail. The core challenge of the Constitutional Convention was to persuade the representatives of the states to surrender some of the power they possessed under the Articles of Confederation, which had produced a weak and ineffectual national government. The delegates devoted most of their attention to the rights of states, not of individuals.
This led to a debate about just how democratic the new government would be. So you had Congress made up of a very small number of people. And their terms were longer than their counterparts in the state legislatures under the Articles, so they had some freedom to act outside of public pressure. Both struggles—state vs. Hamilton went so far as to consider the abolition of states altogether, with all power to be vested in the national government. Less radically, Madison pressed for a legislature based solely on proportional representation; the number of legislators would reflect the number of people in the state, not the state itself.
As Hamilton wrote later, in Federalist No. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail.
Several times during the summer of , the Convention nearly collapsed as the small states refused to yield the powers they enjoyed under the Articles. There would be two bodies in Congress—one based on proportional representation the House of Representatives and the other based on states the Senate. In creating the national legislature, the delegates had to address the issue of slavery. The North thought that the slaves should not count at all. In a way, the negotiated solution reflected the shameful reality that slaves in the United States were judged less than fully human.
The standoff led to a notorious compromise: for purposes of apportioning seats in the House, each slave would count as three-fifths of a person. In , when the Constitution was drafted, the largest state, Virginia, had about eleven times as many people as the smallest, Delaware. Today, California has roughly seventy times more people than Wyoming. To Levinson, the creation of the Senate was the original sin of the Constitution.
The most obvious offense was that the power reserved to the slave states insured the survival of slavery. It took the Civil War to end it, and the Thirteenth, Fourteenth, and Fifteenth Amendments to overrule the three-fifths compromise. The Senate continued to reflect its anti-democratic structure long after the Civil War.
Through most of its history, it has been a graveyard for legislation, even after the Seventeenth Amendment, ratified in , established the direct election of senators. Its primary function has been to stop bills, which are often supported by a popularly elected President and House members, from becoming law. In theory, the senatorial veto is available to both political parties, but a Senate in which less populated states wield disproportionate influence is fundamentally conservative in nature. In simple terms, in a world where progressives want government to change things and conservatives favor the status quo, a legislative body that makes legislating difficult will be a conservative force.
The Senate blocked ratification of the League of Nations treaty after the First World War, civil-rights laws after the Second World War, and the Clinton health-care reform in the nineteen-nineties. This, in a way, is the story of the Obama Administration. Obama was elected twice, both times by comfortable margins in the popular vote and by landslides in the electoral college. Though he will spend eight years in office, his tenure as the actual leader of the national government lasted about a year and a half.
On July 7, , Al Franken was seated, after a recount, as the sixtieth Democratic senator. Sixty votes are needed to overcome a filibuster. The President also won the confirmation of two Justices to the Supreme Court. Since then, Obama has failed to accomplish almost anything in Congress. Following his second Inauguration, the President embraced a gun-control bill that had universal background checks as its centerpiece.
Even though polls showed that roughly ninety per cent of the public supported the idea, the legislation died in the Senate. The less populated, more rural states are the ones most fiercely opposed to gun control. A similarly large percentage of the public supports comprehensive immigration reform. That bill passed in the Senate but appears doomed in the House.
Obama even failed to persuade Congress to fulfill its basic obligation to pay the bills and keep the government open. The shutdown, which lasted sixteen days, ended in a ceasefire, but the threat of closure and default will return early next year. Levinson and his allies believe that the Constitution mandated a kind of institutional paralysis that allowed Obama to do too little. Another leading revisionist, arguably more influential than Levinson or any other law professor, draws the opposite conclusion: the Constitution allowed Obama to get away with too much.
Bald, bearded, and professorial at fifty-six, Mark Levin seems an unlikely media star. His show is in the top five nationally drawing more than seven million weekly listeners , and his books sell hundreds of thousands of copies. Read classic New Yorker stories, curated by our archivists and editors.
But Levin combines originalism with a kind of apocalyptic fatalism, a belief that the nation has gone so drastically off course that the damage may be irredeemable. When Republicans took control of the House in , their first act was to stage a public reading of the Constitution except the parts about slavery. Tea Party Republicans speak obsessively about how contemporary politicians, especially President Obama, violate the strictures of the Constitution. Levin assails the Affordable Care Act as the epitome of all that is wrong with modern American government.
For him and the Tea Party as a whole, the meaning of the Constitution can be understood by any ordinary citizen, not just a small priesthood of lawyers and judges. Levin has proposed a series of Liberty Amendments, most of which reflect well-known aspects of the Tea Party agenda. He wants to set term limits on members of Congress, limit federal spending and taxes, and allow three-fifths of the states to overrule any federal legislation.
He also wants to repeal the Seventeenth Amendment and return the election of senators to state legislators, rather than to voters. The framers did not want the popular vote to control everything.
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I do not understand a mind-set with some of these professors who, on the one hand, seem to argue for the greatest expansion of democracy possible and, on the other, rely on the smallest majority possible—five Justices on the Supreme Court. Do you trust the plebiscite mentality or the judicial-supremacy mentality?
Above all, Levin would like to curb the power of the federal government. The Supreme Court would exist mostly to police the federal government, keeping it from overstepping its authority. Liberals generally embrace a vigorous role for the Supreme Court as a defender of individual rights against the intrusions of the state.
Randy Barnett, a professor at Georgetown University Law Center, was a principal architect of the lawsuit challenging the Affordable Care Act, on the ground that Congress exceeded its powers under Article I of the Constitution.
He has an elaborate proposal that advances the interests of states. A few years before Levin devised his Liberty Amendments, Barnett created a Bill of Federalism—ten constitutional amendments that would, among other things, give more power to the states. The Levin and Barnett proposals have much in common.
Barnett calls for eliminating the federal income tax; prohibiting the imposition of unfunded mandates on the states; and allowing half of the states provided that they represent half of the national population to rescind any federal law. Both posit that substantial majorities of the states should be able to override congressional actions. They are majoritarians. They want a Western European parliamentary system, where a new government comes in and can pass its program right away.
They are happy to abuse political minorities, depending on who is out of power at any given time. Majority rule is the only form of checks and balances they feel is justified, so the majority can do whatever it wants. The effect of that thinking is that California and New York get to run the country.
They always lose. Legitimacy does not come from numbers—it comes from individual rights. I do think the republican form of government imagined by Madison and his friends was extraordinarily fearful of any kind of rule by the people. But what Randy finds himself defending is a veto by small, basically rural states, who ought not be subjected to majority rule by people who live in cities. This is one of the great American fault lines. The debate between law professors can seem abstract, but their disagreements play out in contemporary Washington, especially in the Senate.
The career of Orrin Hatch, Republican of Utah, offers a partial refutation to the theorists on both sides, who insist that the Constitution defines the Senate in a specific way. Hatch was first elected to the Senate in , which makes him the second most senior member of the body. Patrick Leahy, of Vermont, is the most senior. Hatch maintains a hideaway office in the Capitol, just steps from the Senate floor. Hatch arrived in the Senate as a kind of advance guard for the Reagan revolution—a small-government, Western-style conservative.
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Later, alternately as the chairman and as the ranking minority member of the Judiciary Committee, Hatch was a fierce advocate for Republican judicial nominees. At the same time, Hatch became an accomplished legislator, adept at building partnerships with unlikely allies. The seventies and eighties were also a kind of golden age in the Senate, where ideological adversaries figured out ways to make common cause. More informally, they steered many contested nominations of judges and others through the Senate.
In other words, Hatch has played both roles in the Senate—as a partisan obstructionist and a consensus-seeking deal-maker. In the Senate, you have to make a real case. You are going to need sixty votes to get it passed. The sixty-vote threshold to break Senate filibusters was soon to be challenged by the Democrats. The Constitution makes no reference to filibusters, and over the years there were periodic arguments and some lawsuits asserting that filibusters are unconstitutional, as a violation of the norm of majority rule.
When Hatch arrived in the Senate, filibusters were rare, and were used mostly against major legislation. Bush was President. Hatch pointed out that it was the Democrats who first began to abuse the filibuster, when they were in the minority. They started this crap. Hatch acknowledged that the poisonous political atmosphere within the Republican Party has also contributed to the breakdown in the Senate.
For twelve years, his junior colleague from Utah was Robert Bennett, who was less well known nationally than Hatch but every bit as conservative. But, in , Mike Lee, who was a law clerk to Samuel Alito, and who is affiliated with the Tea Party movement, castigated Bennett as a moderate and defeated him for the Republican nomination.
The paralysis of the Senate has reverberated through the entire government. The dispute features the excessive power of the Senate, the pervasiveness of filibusters, and the dubious authority of an eighteenth-century document being used in circumstances that are completely different from those for which it was designed.
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