It is a widely held view that the history of the US from 1776 onward bears beautiful witness to the foresight and wisdom of its founding fathers. Accordingly, it is often argued, there is no need for revising the US constitution from 1787 because the 27 amendments to the document since that time have sufficed to keep it modern. Others claim that the cohesion and clout of the US have dwindled with time, partly due to inherent flaws in the constitution (Levinson 2006, 2012). The US is no longer the world’s largest economy. The confidence of US citizens in their government has eroded to the point where, in June 2014, only 30% told Gallup they had a great deal or quite a lot of confidence in the Supreme Court (down from 37% in 2012), and only 7% said they had confidence in Congress (down from 13% in 2012). Further, Gallup reports that 73% of US respondents claim that corruption is widespread in their government compared with 43% in the UK, 58% in France, and 77% in Ukraine.
It is easy to forget that the US constitution was controversial from day one. The constitutional convention in Philadelphia was attended by 55 delegates from 12 states (Rhode Island sent no delegates). The delegates hammered together a compromise between the different views of those from northern states and those from southern states, as well as those from large (i.e., populous) states and those from small states. Of the 55 delegates, 39 signed the bill, while three refused to sign and 13 signalled their displeasure by leaving the convention before it was finished. Congress did not consider that it had a mandate to change a single word of the text and, accordingly, sent it unchanged to the 13 states for acceptance or rejection. The states either convened special assemblies to deal with the bill or held popular elections on it, some of which were very close. After the ninth state had accepted the bill, it became the law of the land. Even so, if only 20 voters had said No rather than Yes, the bill would have failed (Gylfason 2012a, Maier 2008). The majority had it. No other conclusion could be acceptable in a democracy.
The US constitution has proved the most durable written constitution the world has known, even if some of its framers, including Thomas Jefferson, did not intend that to be so. In a letter to James Madison in 1789, Jefferson wrote that “Every constitution ... naturally expires at the end of 19 years” because “the earth belongs always to the living generation.” Judging by the empirical evidence reported by Elkins et al. (2009), Jefferson got it right, the median durability of the world’s constitutions is 19 years.
How likely can it be that a small group of wealthy males, most of them lawyers and several of them slave holders, could have composed a constitution nearly 230 years ago that answers the aspirations of modern society? Can this be part of the reason for the deep distrust that permeates US society at present and for the weakened status of the US in the eyes of its own people as well as on the world stage? Levinson (2006), among others, thinks so.
Four alleged flaws
Levinson (2006) identifies four main flaws in the US constitution.1
The first flaw is the blatant violation of ‘one person, one vote’, a core principle of modern democracy as well as a basic human right laid out in modern human rights covenants that prohibit discrimination among individuals in any shape or form. The compromise hammered out in Philadelphia in 1787 between the delegates from large and small states produced a bicameral Congress with proportional representation in the House of Representatives and two seats per state in the Senate. This may not have looked like a big deal in 1787 when the largest state (Virginia) had a population roughly ten times larger than the smallest state (Delaware).2 The mismatch has increased dramatically with time. Consider, for example, the two Senators, both women, one of whom was elected in California with 6.5 million votes in 2012 and the other in Alaska with 100,000 votes. It is small wonder that Alaska, not California, is notorious for its pork-barrel politics. The maximum mismatch at present is that between California (pop. 38 million) and Wyoming (pop. 0.6 million), a 66-fold difference. The population of California is larger than that of the 21 smallest states combined.
The second alleged flaw concerns the president, on three levels. One, Congress cannot rid the country of an inept president unless he or she has committed a crime, making impeachment possible. Thus, for example, it was not possible for Congress to get rid of George W. Bush, had it wanted to, like conservative MPs in Britain were able to defrock Margaret Thatcher in 1990. Two, the President can veto legislation without seeking ex post approval from the voters in a national referendum. Three, the President does not have to have a majority of the voters behind him (since World War II, Harry Truman, John Kennedy, Richard Nixon, Bill Clinton, and George W. Bush did not) and not even a plurality (Bush did not in 2000). In France, by contrast, a second round assures that the President-elect has the support of the majority of voters.
The third alleged flaw has to do with the Supreme Court. Life-long tenure can tempt presidents to appoint young teammates to the bench, subject to confirmation by the Senate. This retards renewal and risks alienating the court from the people. This bears repeating. In 2014, according to Gallup, only 30% of Americans expressed confidence in the Supreme Court. Since 1970, US Supreme Court justices have served for an average of 26 years compared with 15 years on average in 1789-1970. A more rapid turnover according to fixed rules by, for example, having the oldest judge replaced at full salary by a new one every two years, would ensure complete renewal every 18 years. Nixon appointed four judges in his five years in the White House, while Jimmy Carter appointed no judge in his four years.
The fourth alleged defect concerns the possibility of revising the constitution. It takes only 13 states with 4% of the voters to block any revision of the constitution. In 1787, it took four states with 10% of the voters to block change.3 By contrast, in keeping with Jefferson’s position and with standard practice around the world, New York’s constitution contains a provision stipulating that New Yorkers be asked every 20 years whether they want to hold a convention to revise their constitution (Levinson 2012).
An Icelandic parallel
All this is why Levinson (2006), among others, advocates:
- A new constitutional convention in the US with delegates drawn at random from the population at large;
- The delegates draw up a new constitution (or, if they so decide, revise the 1787 constitution); and
- The new constitution be brought to a national referendum for acceptance or rejection.
Levinson’s proposal comes quite close to the method used to revise Iceland’s constitution after the financial collapse of 2008 (Gylfason 2011, 2012, 2013, 2014). The main difference is that, in Iceland, a National Assembly was drawn at random from the national register and that a Constitutional Assembly, elected directly by the people, was given the task of drawing up a new constitution in accordance with the general prescription from the National Assembly. The result was a constitutional bill virtually in full accord with the principles laid down by the National Assembly.
Levinson stresses the importance of keeping Congress at arm’s length from the US process, as was done in 1787-1788, to prevent conflicts of interest, an even more urgent need today than before in view of the increasing role of money in modern US politics, especially following the Supreme Court’s 5-to-4 decision in 2014 to strike down the limit on campaign contributions. If private donations severely distort the selection of political candidates for public office offered to the voters, it becomes understandable why even overwhelming majorities of voters distrust their elected representatives.
None of the four defects of the US constitution alleged by Levinson (2006) are to be found in the new constitution for Iceland that 2/3 of the voters embraced in a national referendum held by the Icelandic parliament in 2012. Even so, the parliament has thus far failed to ratify the new constitution in a blatant attempt to thwart the will of the people, risking Iceland’s standing among democratic nations and reaffirming the importance of Levinson’s point about Congress and the US constitution. True, the Icelandic constitution from 1944 requires two successive parliaments to ratify changes in the constitution with a general election in between. This is a deep flaw, raising the bar for change to almost impossible heights by making change conditional on the cooperation of those who have most to lose from it. In recognition of this conflict of interest between the people and their MPs after the 2008 financial crash, Iceland’s discredited parliament outsourced constitutional reform to a popularly elected assembly, acknowledging its own structural incapacity to revise the constitution. By so doing, the parliament implicitly affirmed the superior legitimacy of the people. To reverse position on this matter of principle in mid-stream as parliament did after the 2012 referendum, despite written declarations of support for the new constitution by a majority of MPs, is tantamount to a putsch, raising concerns about the need for constitutional reform by extra-constitutional means.
Elkins, Z, T Ginsburg, and J Melton (2009), Endurance of National Constitutions, Cambridge University Press.
Gylfason, T (2011a), “From Crisis to Constitution”, VoxEU.org, 11 October.
Gylfason, T (2011b), “Crowds and Constitutions”, VoxEU.org, 13 October.
Gylfason, T (2012a), “Finance and Constitutions”, VoxEU.org, 11 April.
Gylfason, T (2012b), “Constitutions: Financial Crisis Can Lead to Change”, Challenge 55(5), 106-122.
Gylfason, T (2013), “From Collapse to Constitution: The Case of Iceland”, in Public Debt, Global Governance and Economic Dynamism (ed. Luigi Paginetti), Springer, 379-417.
Gylfason, T (2014), “Constitution on Ice”, CESifo Working Paper 5056, November.
Levinson, S (2006), Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It), Oxford University Press.
Levinson, S (2012), Framed: America's 51 Constitutions and the Crisis of Governance, Oxford University Press.
Maier, P (2011), Ratification: The People Debate the Constitution, 1787-1788, Simon & Schuster.
Sunstein, C R (2006), “It Could Be Worse”, New Republic online.
1 For a critical review of Levinson (2006), see Sunstein (2006).
2 This computation applies the ‘3/5 rule’ by which each slave was defined as equivalent to 60% of a free person for the purpose of establishing the basis on which to determine the number of seats for each state in the House of Representatives. Had slaves been counted in full, the population ratio of Virginia to Delaware would have been 13.
3 Again, this computation applies the “3/5 rule.”