The Constitution and Its Critics. (2011)

IN PLANNING a freshman undergraduate curriculum with colleagues recently, the question arose as to what type of understanding we wanted to impart to our students about the Constitution. Should the goal be to achieve a critical understanding of the Constitution or, since most students take only a single course that covers the document, is a basic understanding all that is to be expected? Is there, then, some practical way to impart a critical understanding of the Constitution in just a very few classes? It turns out there is: Assign the students Sanford Levinson's Our Undemocratic Constitution (2006), or Robert Dahl's How Democratic is the American Constitution? (zoo 1 ). Daniel Lazare's The Frozen Republic: How the Constitution is Paralyzing Democracy (1996) could also serve this purpose. The alleged defects of the Constitution that these books point to are wide-ranging and can be classified into various categories. Some problems--such as slavery, the disenfranchisement of women and blacks, and the election of senators by state legislatures--are historical in nature. Dahl in particular spends a fair amount of time on these issues. Other defects can be deemed trivial. For example, Levinson laments the age limitations that bar relative youngsters from being representatives, senators, and presidents. Another category contains problems that are current and well known; its main member is the Electoral College. But at the heart of these works are two other types of supposed constitutional defects. The first type are very real but not as widely appreciated as they should be, such as equal state representation in the Senate. They raise the question of whether there is any realistic chance of reform. The second type are supposed defects that turn out to be nothing less than the entire structure of separation of powers and checks and balances. Levinson and the other authors are all more or less critical of bicameralism, the presidential veto, and judicial review; the analysis of these institutions is what makes these books especially interesting though sometimes wrongheaded. Dahl and Lazare judge the Constitution harshly for compromising in various ways with slavery. The three-fifths compromise in Article I, Section 2, the provision for a fugitive law in Article IV, Section 2, and the moratorium on the banning of the trade until I808 in Article V all come in for strong criticism. In one sense, one can hardly disagree. Still, the authors' critique of these compromises suffers somewhat from 20/20 hindsight. For example, there is no mention in these works of the Constitution's sedulous refusal to refer to directly; the words slave and slavery never appear. It was partly on this basis that Frederick Douglas argued that the Constitution was an anti-slavery document. Also relevant to the question of the Founders' thinking about is Madison's discussion of the three-fifths clause in Federalist No. 54, in which he argues that is based on law, not nature, thereby establishing the premise that could, as a matter of law, be abolished when sectional compromise among the states was no longer necessary. Other topics are, today, debated more frequently. The Electoral College is one that seems to be an easy target for the Constitution's critics. Among the perverse outcomes attributed to the Electoral College the presidential election of 2000 is only the most recent and prominent. While it is certainly regrettable to have a system in which the popular vote is not necessarily determinative, Arthur Schlesinger Jr. makes a good case in War and the American Presidency (2004) that the Electoral College does have certain virtues. It discourages the formation of minor parties, and prevents the election of candidates who lack broad support, since no party without a regional base can win electoral votes. The Electoral College also makes close and disputed elections more manageable since most likely the votes of only one or a few states would need to be recounted. …