Vital Interests: Sandy, thanks very much for joining us today on the Vital Interest Forum. You are a keen observer of American democracy, particularly how the functioning of government is shaped by the U.S. Constitution. The four years of the Trump presidency have brought to light many constitutional tensions and challenges. Can you point out some of the most pressing issues and where we can go from here.

Sandy Levinson: I'm delighted to be chatting with you again. We all come to any event with our own priorities. Since publishing my book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) in 2006 my concern is that many of the provisions in the Constitution promote either unjust or ineffective government. I am very much a critic of the Constitution, partly because I do believe that it fails almost any 21st century test of what we mean by a democratic political system. I argued, however, in a later book Framed: America’s 51 Constitutions and the Crisis of Government (2012) that most people really don't care whether the Constitution is democratic or not, that it is really just a concern of political theorists.

What people do care about is whether the system is working in a satisfactory way in their lives. If you look at polling data about confidence in national institutions, approval ratings, particularly of Congress, or at the direction the country is going, you find massive disapproval. I think that one of the ways of interpreting Trump's election in 2016, beyond the pathology of the Electoral College, is that it was a response by a group of people - to quote the movie Network from the 1970s - who were mad as hell and were not going to take it anymore. They had lost confidence in the ability of national institutions and national leaders to be responsive to their perceived needs and fears.

This proved to be the case across the ideological spectrum. That is, whether you're right, center, or left, it was stunningly unlikely that you had confidence that the national government was going to respond adequately. For some, this rose to the level of an existential crisis. So we get Donald Trump and, not surprisingly, he reinforces my view of our broken Constitutional system constructed in 1787 and insufficiently formally amended in truly significant ways since then. As a system, it underscores the inability of the American national government to function effectively.

Now, if one has a uniquely unqualified person like Donald Trump as president, that is certainly not going to help to promote good governance. We could spend the rest of our time delving into the personal inadequacies of Donald Trump. That being said, I think one can have a modicum of empathy, if not sympathy, for the people who voted for Trump in the Republican Party, really and truly believing, I think crazily, but nonetheless, really and truly believing that Obamacare was awful and needed to be repealed. They get the presidency, they get both Houses of Congress, and it turns out, what they don't get is the repeal of Obamacare, because of John McCain having the courage and backbone to stand and oppose repeal.

That being said, if I were on that side of the political spectrum, I would wonder what more I need to do because, apparently, merely winning elections isn't good enough. There are so many different ways by which attempts to disrupt the status quo can be blocked. Now, with Trump, we have a model disrupter. I'm fond these days of quoting Joseph Schumpeter and his notion of creative destruction when applied to capitalism. The buggy whip manufacturers, or for that matter the manufacturers of gas-powered automobiles, simply have to realize that their time has gone.

I think that is also true to some extent within the political sector. We do rely on a certain amount of creative disruption to get things done. If Donald Trump were not a sociopath, that is to say, out only for himself and his own benighted ideas of the way the world works, I have to say he might be a more genuinely interesting president in terms of demonstrating the need for somebody to shake up a sclerotic system that really is not viewed as working for anybody. Unfortunately, in every conceivable sense, he has been a disaster as a president. 

Also, as happens with a disaster, like a pandemic, you get an MRI, and you can understand things about the overall system that we desperately want to keep suppressing. I do think and I fall into this trap myself, I do think that it is a huge mistake to focus exclusively on personalities. That is true whether the personality is Donald Trump, Mitch McConnell, or for that matter potential saviors like Bernie Sanders or Elizabeth Warren, or even Joe Biden, although I don't think many people view him as a savior. I think the more we focus on individuals, almost by definition, the less we are likely to talk about significant structural aspects of systems that we really are reluctant to take into account.

From my perspective, the principal reason we're reluctant to take them into account is because of a gnawing belief that nothing can be done about it. This semester, one of the courses I was teaching on Zoom was at the Harvard Law School and the topic of the course was  “Reforming the U.S. Constitution, is it desirable, is it possible?” There was a range of views on how necessary it was, but that was neither here nor there because the last of our eight sessions was spent on the second question, which is not is it necessary or desirable, but is it possible?

At that point, there is almost unanimous agreement, including I regret to say my own, that it might not be possible to revise the Constitution in part because Article 5, which deals with constitutional amendments, has trapped us in an iron cage of impossibility and gives the United States Constitution the dubious distinction of being the most difficult constitution in the world to amend. 

I can understand the logic of wanting to think of workarounds for the Electoral College, say, rather than get rid of it, and other kinds of duct tape fixes because it just really does appear to be impossible to engage in truly serious constitutional reform. Frankly, it's not made any easier by the fact that even after four years of Donald Trump, and even after the MRI, it should be quite obvious that we have problems. There is still no national leader or even prominent pundit who is waving the flag of constitutional reform.

I often say that my favorite presidential election was that of 1912 when you had three genuine reformers and in this context that includes Woodrow Wilson, Teddy Roosevelt, and Eugene Debs, all of whom were raising really serious questions about the adequacy of the 18th century Constitution. Then you add in William Howard Taft, the most able defender of the old order. Of course Wilson won and that decade was a decade of four really important constitutional amendments.

I'll include prohibition in the list of important constitutional amendments, whatever we might think of the policy, but the really key point is that people across the political spectrum were willing to say, "We need to think about constitutional reform," and it happened. One hundred years later, the candidates were the former president of the Harvard Law Review and a graduate of the Harvard Law School, neither of whom had a single interesting thing to say about the constitution itself. That has turned me into a depressed crank because I do think we need that discussion.

I'm not arrogant enough to believe that everybody will agree with me in all of my specific criticisms, but having spoken to a lot of people somewhat across the political spectrum, I don't find that many people to say, "Oh yes, I think we have a terrific constitution and the very idea that it needs some reforms is heresy." In this Harvard course, one of the week's assignments was the so-called Texas plan constructed by the very, very conservative Texas Governor, Greg Abbott, which calls for a new constitutional convention plus nine quite significant constitutional amendments. There is a Libertarian Institute, I think in Phoenix, Arizona, that has put out some of its draft constitutional reforms but that is about it.

The real point I want to make is that there are lots of people who are willing to say, "You know, there really is a need to think about constitutional reform," but none of these various people across the political spectrum are what might be called leaders within the political class, even Greg Abbott. He floated that proposal and it's gone nowhere. He's got no traction among his fellow conservatives and, quite frankly, he has not returned to talking about it in the last two years.

VI: Sandy, just to clarify, was Abbott’s Texas constitutional reform plan for the state constitution, or was that a national constitutional convention?

Sandy Levinson: No, it's called the Texas plan which is a reference to the Virginia plan. The one that James Madison and his friends had in their coat pocket when they arrived in Philadelphia in 1787. Texans think big and so Greg Abbott thought that if we could talk about the Virginia Plan as the basis for constitutional reform in the good old days, then why not talk about the Texas Plan as the template for reform in today's world.

VI: If there is no national leadership or public will for constitutional reform, how can governing be made more responsive? Let's take the case that you brought up -  healthcare, the Obamacare plan. What was the great objection to the Obamacare plan that enabled Republicans to use it as a means to justify their politics and even challenge its provisions in the Supreme Court when they never even had a plan to replace it?

Sandy Levinson:. When I referred to the frustration of the right, I certainly did not mean to express any ideological sympathy, all I wanted to suggest is that one of the real crises of the current system is that winners of elections, at the national level, almost instantly become frustrated in the realization that winning elections means less than we are often taught to think. There is a dramatic difference, I think, between the national and state level of politics.

Again, whatever one's own particular political views, there is no doubt that if you look at states like  Pennsylvania, Wisconsin, Michigan, Minnesota, California, New York, in fact most of the 50 states, state elections matter. It is very, very common at the state level for a single party to sweep during a given election cycle and for that party, on coming to power, to be able to pass a program. That is what Scott Walker and his Republican friends did in Wisconsin.

The point is that you could say, "Well, you know, this is how elections are supposed to work where two parties fight it out and the winners get to implement a program, and then at a later election, you can vote the rascals out." Scott Walker was beaten in Wisconsin; given, though, that the Republicans remain in control of the legislature in Wisconsin, it is more like the national government right now in being a divided state. 

Again, you can march through a variety of states and see this, with both Democratic governments and Republican governments at the national level, and this does go back to 1787. We have what I think is a Byzantine system of separation of powers/checks and balances where winning the presidency, although nice, doesn't get you what you think it does. Indeed, winning the presidency plus the House of Representatives doesn't get you all that much if Mitch McConnell remains in charge of the Senate.

This also turned out to be the case for the Republicans. They actually had a united government between 2017 and 2019 and it still wasn't good enough to get them what a lot of the Tea Party people wanted, which was not simply tax cuts for the top 1%, but the elimination of Obamacare and they couldn't get it. I think we are now seeing that again with this new election. I am elated that Joe Biden won but do I have any great expectations that the Biden administration will be able to accomplish very much even if you assume, which could be this topic for a different discussion, that he's really ambitious in his own goal?  Even if we give him maximal credit for audacity, will he in fact be able to accomplish very much?

I think the answer is no. Unless, ironically or not, like Donald Trump or Barack Obama or George W. Bush, Biden pushes executive power for all it's worth. It seems to me altogether likely that no longer than five months from now Liberals who were appalled at Trump's assertions about executive power, and what Congress had delegated to the president will find themselves saying, "Well look, Congress has delegated to the presidency the power to do this, that, and the other and Joe should find his fountain pen and start issuing very sweeping ambitious executive orders that he can't get through Congress."

I think this is an extremely unfortunate aspect of American politics. I find myself increasingly wondering whether presidentialism itself is such a good idea. Max Weber, literally about 100 years ago, wrote an essay about German politics but also made reference to the United States. He suggested that presidentialism has within it what we today would call the DNA for Caesarism. If you think about modern parties and the degree to which a president is viewed as the true leader of a political party and then layer on top these developments in mass media that Weber could never have imagined, you have an incentive for a certain notion of presidential leadership.

Quite frankly, I think that admirers of Barack Obama, of whom I was certainly one, should realize that his 2008 campaign was in some sense a Caesar-like campaign. Mass rallies, the politics of hope, much less emphasis on a program than on the idea that this extraordinarily talented, single charismatic leader could be the cure for our ills. Even if you think he was a pretty good president, he was not the cure for our ills. He could not have been the cure for our ills because Mitch McConnell wouldn't let him and Mitch McConnell has the power he does, not because he is an evil ogre, but because we have a truly awful United States Senate now apportioned in favor of an unrepresentative set of small states.

Mitch McConnell is behaving the way one would expect the leader of the Senate Majority to behave. It's not his job to help a president of the opposite party. If you have a parliamentary system, the opposition opposes. That's what they're supposed to do but what the opposition can't do is prevent the so-called government from governing.

I often tell a story from my one time visiting China in 1987. I was there for a week-long seminar on the bicentennial of the American Constitution with a group of Chinese scholars.  One morning, one of the scholars came up to me privately and said, "I'm confused. Yesterday, the Congress passed a resolution condemning the policy of the People's Republic of China vis-à-vis Tibet. Then the spokesperson for the State Department, the very same day, said that what goes on in Tibet is an internal matter of the People's Republic of China about which the United States government expresses no views." He asked me, "What is the position of your government?" After thinking about it for a moment or so I said, "Well, the mistake is assuming that the United States has a government. In the same way that Her Majesty in London does have a government."

You always know what the policy of the British government is, for good or for ill. The whole separation of powers system in the U.S. means that, as Edward Corwin pointed out a number of years ago, you have these contending institutions always fighting for who gets to speak for the American people. This also means that while Joe Biden can claim to be the People's Choice, so can Nancy Pelosi.

So can Mitch McConnell so long as we stick with the structures of 1787 and don't regard the U.S. Senate the way that reformers regarded the House of Lords in 1830 where they said, "Look, something really has to be done." So in the UK you did have in the Reform Act of 1832, significant modification of the House of Lords, and that continues in 1910. Then again in the early 20th century when the House of Lords was basically more or less eviscerated in terms of the traditional role it played in British government.

Although you do find some people expressing unhappiness about the Senate, everybody basically throws up his or her hands and says, "There's nothing we can do about it because it's so completely entrenched in Article 5." In a very real sense, that's true. Several years ago my very close friend Jack Balkan at Yale Law School and I published an article on constitutional crises. We distinguished between two forms of constitutional crisis. One of them is where you have a president who says, "I don't care what the Constitution says, I don't care what the law says. I'm going to do this, try to stop me." Even Donald Trump, one has to concede, has not done that. What he has done is to push the envelope of delegated power to the presidency together with sensible Article 2 powers that the president possesses. He's never out and out said, "I don't care what the law is, I'm going to do it anyway." That's a type one constitutional crisis. 

A type two constitutional crisis is where you say, "Look, we're going to have to drive over a cliff because the law just doesn't provide a way of putting on the brakes." Now as we go over the cliff we can say, "Well, at least we were faithful to the constitution."  I think there's something crazy about that. 

The great paradox of the United States, and I think this more than anything else is what American exceptionalism is all about, is that we venerate our national constitution in a way that no other country venerates its constitution, and no state venerates its constitution. Each of the American states has had an average of about three constitutions over its history. If it hasn't actually changed its constitution, then it may have literally hundreds of amendments and referendums to make significant incremental changes. 

The U.S. Constitution has only 27 amendments - ten of them passed in 1791. We just don't look at the national constitution in an instrumental way where we can ask, "What has it done for us lately, and what sorts of reforms are necessary?" There is an extremely important difference between the U.S. Constitution, and not only other national constitutions including constitutions of as sober a country as Switzerland, but also about half of the American state constitutions where there is the ability for we the people to do end runs around a sclerotic formal structural system by having initiative referendums.

The first state one thinks of is California. Unfortunately, too many people view California as simply a wild and crazy state, and its initiative referendum as an example of wild craziness. But Nebraska, for God's sake, which nobody views as a wild and crazy place, got rid of its state Senate in 1934 because of an initiative and referendum. It's a small state. I'm not suggesting actually that the United States could do well without a Second House. I despise the Senate as the form of the Second House that was chosen, but I would not advocate simply having a unicameral House of Representatives. The point is that if we had the opportunity for national initiative referenda, perhaps we could reconstruct the Senate and make it something that would be truly useful rather than a graveyard for reform legislation.

If one combines the reverence that we have for the Constitution and for the framers whom we treat not as people doing the best they could in 1787 given the political challenges of that time, but instead as demigods who constructed The System for all time. You put on top of that the fact that part of the system they constructed is a system of amendment that in effect makes it impossible to change what they gave us in many important respects, then we are driving over the cliff.

VI: Sandy, let's look at an active national movement that is sort of an interstate referendum to reform the Electoral College. It is called the National Popular Vote Interstate Compact where states agree to award their electoral votes to whichever presidential candidate wins the overall popular vote. Is this an example of how states can initiate reform of the federal government?

Sandy Levinson: Yes, and no. It is an example of how one might achieve an end run if you do get up to the magic number of 270 electoral votes with regard to states who are willing to say, "We will order our electors to vote for the popular vote winner," if enough other states will agree to do so. There are two problems. One of them is a lawyer's problem., Ned Foley, an election law specialist at Ohio State, argues that for that to work, Congress would have to approve it because it would be a  so-called interstate compact. The Constitution says broadly that interstate compacts have to be approved by Congress. 

VI: By a simple majority in the House and the Senate?

Sandy Levinson: Yes, but presumably also signed by the president. I have other lawyer friends who say, "No, it wouldn't require congressional approval, but there would undoubtedly be years of litigation." 

That is not my principal qualm about the so-called fair vote proposal. Instead, it is that it responds entirely to 2000 and 2016 where the person who came in second got the prize. It doesn't respond to 1968 and 1992 where the persons who got to the White House - that is Richard Nixon in 1968 and Bill Clinton in 1992, each had only 43% of the popular vote. My view is that a president of the United States in the 21st century ought to be able to make a plausible claim that he or she is the choice of the majority of the people.

That's the way the French do it, that's the way people in the State of Georgia do it, that is the way it can very easily be done. Maine has adopted, for example, a single alternative transferable vote. That means that you don't get elected to office in Maine unless you have demonstrable support from the majority of the electorate. The fair vote proposal dances around this issue. I think that one form of it says, "Well, you have to get 45% of the national vote in order for this to be triggered."

Well, 45% is closer to 50% than 43% but I want 50%. I would much rather we just get rid of the electoral college by constitutional amendment and include a process of either runoff elections or the alternative transferable vote and at the same time, incidentally, establish a national procedure for carrying out at least national elections so that people will have confidence in the transparency and accuracy of the electoral process. What we are seeing literally right now is not that. It does appear as a matter of fact, contrary to what a lot of people were afraid of, that all the states seem to have run relatively fair and transparent elections. No doubt there was some voter suppression in some of the states because of their clamping down on early voting, or where they placed precincts and stuff like that. Just three months ago, there were much more apocalyptic articles about how the electoral system would just break down. We got through that minefield but still, most countries around the world have far better formal election systems than we do.

One of the virtues for me of the constitutional convention that I continue to want is that we could have an extended public national discussion about how to cure the electoral college, which ironically most people agree that the electoral college should be eliminated, but they don't agree how this can be done. It gets caught up in the practical impossibility, from the perspective of most people, of doing it cleanly through a constitutional amendment. Alexander Keyssar, who teaches at the Kennedy School, published a terrific book earlier this year called, “Why do we still have the electoral college?’’

The answer can be boiled down into several sentences. First of all, since 1816 there has been systematic criticism of the electoral college and widespread agreement that something should be done about it, but it hasn’t happened because of Article Five and the difficulties of passing a constitutional amendment. The closest we came in 200 years was in 1969 when two-thirds of the house voted for an amendment. It was on its way to probable approval in the Senate until it was stopped by a filibuster led by Sam Ervin and Strom Thurmond. 

VI: Actually what you do hear now in the debate about the role of the electoral college is that what we have in the United States is a republic not a democracy. Right Wing Republicans are really not interested in a one person, one vote deomocratic system because that would lead to majoritarian rule. The United States is about minority rule and protecting minority rights. These groups are talking about the worth of the electoral college rather than its obsolescence.

Sandy Levinson: I think that's a very important point. I'm old enough to remember the slogan of the John Birch Society, an American republic not a democracy.

VI: People forget that the John Birch Society was organized to confront the Warren Court and its efforts to support civil rights and do away with the Jim Crow Laws that suppressed the Black vote.

Sandy Levinson: That's exactly right. It is an unfortunate truth that can't be successfully swept under the rug. That the framers of 1787 were profoundly suspicious of democracy. As a result, the Constitution was written in such a way that it would minimize, not eliminate, but minimize the ability of an aroused populace to govern. Beginning with the fact that there's not a scintilla of direct democracy, and then going on to constructing this elaborate system of separated powers, that means that in essence, an aroused public would have to be aroused for at least six years and three election cycles in order really and truly to capture the house, the senate, and the presidency.

Maybe you want to add another two or three election cycles in order to capture the federal judiciary, in order to have truly reformist programs. FDR did it more or less but one has to focus on less as well as more because the white supremacists in the senate prevented Roosevelt from extending many of the New Deal measures to African-Americans in the South. It was Warren Harding the Republican who supported the first anti-lynching bill which FDR never did because of his need for his white supremacist southern Democratic base.

I think you're absolutely right that it is interesting, that at least some Republicans are willing quite openly to challenge the idea of majoritarian democracy.

VI: Let's look at that concept of an aroused public that the framers were concerned about. Can we say today that we have a very aroused public on both sides of the political spectrum? You have the millions in the streets because of the Black Lives Matter movement protesting against police violence and systemic racism. Then, you also have the Trump rallies that vehemently support his notions of injustices and societal problems. How does a functional democracy deal with an aroused public?

Sandy Levinson: I wish I had a confident idea. Political scientists, or I should say some political scientists, have argued for many years that a low voting turnout is a sign of political health because it means that most people, at the end of the day, don't care all that much. Life is treating them well enough. There are political junkies who care, but otherwise, life goes on. For this group of political scientists, the fact that we had the largest turnout in at least 100 years, in terms of percentages, would be a sign of potential trouble rather than a cause for celebration. Especially when you realize that the person I consider a dangerous sociopath got 72 or 73 million votes, while Joe Biden, I presume, is at 78 or 79 million. This is not good news. I spend more time than I probably should, thinking about analogies to the Weimar Republic in post World War I Germany.

One of the things you can say about Weimar is that they were highly mobilized groups. The problem was that, in a sense, for every socialist or communist, there was a Nazi. It's one thing when you have singular mobilization like let us say the civil rights movement, in the 1950s and '60s. Whereas today, what you have is very high mobilization across the political spectrum. You have what are increasingly called base elections, rather than elections aimed at the mythical median voter or independent voter who will decide the elections. You could make the same analysis incidentally about American politics in 1859 or 1860. I'm extremely hesitant to offer any nostrums. My own view is that what we have sociologically or politically, is a highly divided polity with mobilization on both sides, that then runs up against a formal political system that makes it nearly impossible for any of the mobilized movements to enjoy the kinds of victories that ironically enough lead to demobilization.

You've gotten what you were fighting for and then you go back to tending your garden and spending time with people who might disagree with you on lots of issues, but they're your coworkers, you go to church with them, or whatever it is. I don't see that happening at least in the near future.

VI: All of this political division is taking place during a time of great national crisis, because we have a pandemic which is showing no signs of abatement, and is wreaking havoc around the country. Rather than bringing people together to fight this as a national crisis, it just causes more divisiveness.

Sandy Levinson: I think of Rahm Emanuel and his comment that a crisis is a terrible thing to waste. We are in a very deep sense wasting this crisis, or it may simply illustrate the fact that we're so completely divided in how to meet it. You have quite different mobilizations as a way of meeting the crisis.

VI: That also brings us to another uncomfortable situation, that there is no truth in this country anymore. One of the things that has to function in a democracy is you have to have transparency and accountability and some grasp of facts, and that seems to be a casualty of the last four years.

Sandy Levinson: I think this is another really very serious problem in every way. Both of us are old enough to remember when there were three networks and everyone trusted Walter Cronkite. It has literally, I think, been years since I've watched any of the 6:30 network programs. I will confess to watching a lot of MSNBC.

I don't know how a political system operates without some degree of belief in shared truth, shared empirical evidence. I think that's going to be one of Biden's greatest challenges. Can he make the government credible when they start saying-- That is they, the government, starts saying, "Yes, there is a genuine problem of climate change, and there are genuine things we need to do.”  Or before the vaccine gets distributed that people not only should wear masks, but perhaps have to wear masks.

I think this is a tremendous, tremendous challenge. In 1965, during all the turmoil, it was still the case that 65 or 70 percent of the public thought the national government was looking out for people like themselves and that, by and large, you could trust what the national government said. Then we ran into the credibility gaps over the war in Vietnam but there, ironically enough, the argument was that they were lying to us. They knew what the truth was, but they were lying to us for their own craven reasons. 

Whereas, I think that Donald Trump has no notion at all of truth or falsity, it's all what's convenient for him.The real fear is that he's managed to locate every climate change denier and put them in charge of a federal agency so they don't think they're lying. It's simply that 90 percent of the communities that we trust think that they're charlatans. There is something just very scary about that aspect of our current state and I have nothing useful to say.

VI: All right, Sandy we're coming to end our time here. We've had an interesting conversation about the current state and future viability of democracy in America. How the Constitution should be reformed for us to have a functional and fair government. We can hope that with a new administration taking over in January it will bring in sincere people who  will attempt to rectify some of the ills that we have in our society - certainly deal with the pandemic, try to rectify racial and economic inequalities, and begin to meet the expectations of all citizens. Let’s have a conversation this time next year and see what the Biden/Harris administration has been able to accomplish.

Sandy Levinson: I hope you're right. It is important that hope springs eternal. I just really do wish that some of these structural challenges will become part of our conversation as well.

Sandy Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School and is also a Professor in the Department of Government at the University of Texas. He is an American legal scholar, best known for his writings on constitutional law. Professor Levinson is notable for his criticism of the United States Constitution as well as excessive presidential power and has been widely quoted on such topics as the Second Amendment, nominations to the Supreme Court, and other legal issues. He has called for a Second Constitutional Convention of the United States.