The Constitution's Political Deficit
Harvard Law & Policy Review, Vol. 1, December 2006
6 Pages Posted: 5 May 2011
Date Written: December 2006
Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative branch will not be even remotely representative, and that the Executive branch will likewise, at least on occasion, fail to represent the will of the people. This democratic deficit ought to cause us concern. We should at least have the luxury of debating the point.
Thus, I think Levinson's claim is essentially right, and I would like to make two friendly amendments to his proposal. There is, indeed, a worrisome democratic deficit in our own constitutional scheme. I suggest, however, that there are two additional problems with our constitutional practices, besides those Levinson has flagged for revision, that also impact detrimentally our democratic commitments. Echoing Levinson's framework, I would call the first of these two additional problems a "political deficit," and the second a "legal deficit." Our current dilemma exists not only because our written Constitution clearly tilts against representative democracy in the way Levinson decries. Our constitutional practices also tilt against politics, democratic or otherwise, and the ordinary law - legislation - that is its product. These political and legal deficits also deserve our critical attention.
Keywords: Constitutional interpretation, political theory, democracy
JEL Classification: K00, K10
Suggested Citation: Suggested Citation