ABA Journal

What Professor Levinson apparently fails to realize is that “gridlock” is a virtue rather than a vice.

By Yankee on 2012 05 30, 7:51 am CDT

Yes, because we want the government to move more efficiently in taking away our property and civil liberties.

By John on 2012 05 30, 9:52 am CDT

Does anybody remember that the primary, if not sole, cause of “gridlock” in recent years has been the Senate’s free-speech rule, which requires a supermajority of 60 to cut off debate on any issue and bring something to a vote?  This is not in the Constitution, but is intended to encourage consensus by preventing a simple majority from steamrolling its way through a substantial minority.  All the “solutions” I have seen so far have ignored the cause, and been likely to lead to worse long-term results.

By Catherwood on 2012 05 30, 10:10 am CDT

What this story shows is that the University of Texas is wasting money on faculty salaries.  The Framers knew a lot more than Levinson will ever know.  Amending the Constitution SHOULD be difficult to check the whims and fancies of whatever party holds temporal power.

By Lee on 2012 05 30, 10:17 am CDT

Amending the Constitution is passé when you can simply alter it by judicial fiat, which the federal courts have been doing relentlessly and shamlessly ever since the early twentieth century.  Levinson and his academic cohort are strong adherents of this approach, so it’s odd to hear a call for returning to the actual amendment mechanism in Article V.  Most likely explanation?  The courts are altering the Constitution in a manner that Levinson doesn’t like.  Too bad.  If you live by the sword, you die by the sword.

By logos on 2012 05 30, 10:22 am CDT

logos, the Supreme Court has been amending the Constitution, relentlessly and shamlessly, at least since Marbury v Madison.

By Catherwood on 2012 05 30, 10:32 am CDT

These arguments from Levinson are complete nonsense.  None of the causes of our current gridlock issues are based in the Constitution’s framework, but rather in the individuals that voters select, many of whom clearly prefer gridlock to a situation where one party dictates extremist policies. Of course, those individuals may have gone too far, but the solution is incredibly simple.  The voters may simply elect different representatives, if they are not happy with them.  No amendment is needed for that.  Additionally, as Catherwood stated, the Senate rule on filibusters can also be changed without a Constitutional amendment, especially at the start of the new session. These proposals by Levinson are probably just calculated attempts at getting publicity, because he knows they will never gain any traction.

By Morris on 2012 05 30, 3:45 pm CDT

Yawn. There are infinite hypothetical ways to end gridlock in Congress, this is just one. Realistic proposals would be more useful.

Lee @ 4 - Perhaps the framers together knew more than Levinson, but let’s not make them out to be demigods. They had little experience with democracy, and in any case, we as a society have over two hundred more years of experience with our system than the framers. To suggest that a better system than ours could be designed is not blasphemous. Requiring a supermajority in SCOTUS to invalidate a law on constitutional grounds is an interesting proposal, for example.

John @ 2 - If government was more efficient at taking your property, it probably would not need to take as much.

By NoleLaw on 2012 05 31, 8:34 am CDT

@8 “. . . [the framers] had little experience with democracy . . .”

I guess.

But more importantly, the framers intended to create a constitutional republic and not a democracy.

By Yankee on 2012 05 31, 11:03 am CDT

@ 9 - LOL. Didn’t we cover that already?

By NoleLaw on 2012 05 31, 11:29 am CDT

@11 You’re absolutley correct.  We’ve covered this issue on at least one prior occasion.

By Yankee on 2012 05 31, 1:59 pm CDT

I’m pretty sure that if amending the Consitution became easier, the Tea Partiers would do everything possible to amend it by: (1) repealing amendments 1, 4, 5, 6, 7 and 8, and; (2) naming evangelical Christianity as the state religion.

I have no problem with leaving the amendment procedure as it is.

By AndytheLawyer on 2012 05 31, 3:23 pm CDT

@11, 9 - I’ll assume that point was in jest, which is why it did give me a chuckle. I have to assume that after reviewing references to the vast literature by political scientists and others who study the subject and are fine using “democracy” to describe our system, you’d conclude that continuing to earnestly raise this distinction would be mere pedantry.

In any case, and just to humor you, the framers had essentially as much experience with constitutional republicanism as with demokratia.

By NoleLaw on 2012 05 31, 3:53 pm CDT

@13 I did not make my point @9 in jest. The national government is really, truly and sincerely Constitutional Republic.

I regret that you apparently spent some portion of your finite life on earth “reviewing . . the vast literature by political scientists” who apparently don’t understand our form of government.

By Yankee on 2012 05 31, 4:01 pm CDT

@ 9, 13 :  In most contexts, it is reasonable, and simple, to refer to the US as a democracy.  However, in the specific context of whether any particular feature of our government is democratic or antidemocratic, I think it is fair to remind the participants that the Framers (with the notable exception of Jefferson) were not overly fond of democracy and deliberately created multiple structures to protect against the flaws generally associated with pure democracy.  To be sure, the history of our country since then has been to to steadily increase the degree of democracy, but it is not obvious to me that this trend either justifies or fails to justify any particular proposed next step toward more democracy.

By Catherwood on 2012 05 31, 4:02 pm CDT

@ 14 - You asked previously for proof of experts being comfortable calling our system a democracy. I provided it to you, and demonstrate there is hardly a debate about that convention. You now call an entire field of academia wrong, and yourself to be correct. Continue on with your Quixotic mission oh sage, all the best to you.

By NoleLaw on 2012 05 31, 4:08 pm CDT

@NoleLaw

At this point you’re just arguing semantics. Maybe political scientists are comfortable referring to our system of government as a “democracy” - which it is only by the virtue that the people vote for their politicians, but the true definition of our system is “constitutional republic.” If you look up the definition of constitutional republic, you find, “a state in which the head of state and other officials are representatives of the people and must govern according to existing constitutional law that limits the government’s power over all of its citizens.” In practice, there are almost no true democracies- the most common form of government is the parliamentary democracy, whereby citizens elect representatives to govern themselves. The primary differences between that and what we have are that 1. Our system severely limits the role of the elected officials with a Constitution, and 2. The power of our representatives is checked by other branches.

By Aggie Lawyer on 2012 05 31, 4:19 pm CDT

@17 - That was my point all along. Nobody that mentions we are a “democracy” considers our system to be a direct democracy a la Ancient Athens. To point out that we are a “republic” and not a “democracy” is a needless exercise in, to repeat, pedantry, generally engaged in by those who try to inflate their perceived knowledge of politics and institutions. “Constitutional republic”, by the way, does little to define our system more than “representative democracy”.

Back to the article…

By NoleLaw on 2012 05 31, 4:27 pm CDT

@16 You proclaim: “Continue on with your Quixotic mission oh sage, all the best to you.”

Thank you for my new name, “Sage.”  I may or may not decide to keep it.

By Sage on 2012 05 31, 5:54 pm CDT

Go for it. Be it Yankee or Sage, your name has irony locked down.

By NoleLaw on 2012 05 31, 6:03 pm CDT

Actually, the USA has become an oligarchy masquerading as a constitutional republic masquerading as a democracy.

By AndytheLawyer on 2012 06 04, 9:53 am CDT