In this Review, Professors Charles and Randall Kelso discuss Professor Levinson’s book Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). Levinson’s book has two major purposes: (1) to document and describe the many ways in which our Constitution produces or could produce countermajoritarian results and (2) to urge (in light of these antidemocratic “flaws”) that we hold a constitutional convention to draft a new constitution for submission to the electorate.
They describe Levinson as a supporter of “deliberative democracy” as an end in itself, perhaps the ultimate end of political institutions. Indeed, all of Levinson’s suggestions, from making the Senate less antidemocratic to doing away with lifetime tenure for Supreme Court Justices, are attempts to move toward a society where government “accord[s] with what the people want, as expressed in election returns, assuming a very broad electorate, with each person’s vote counting the same.”
While Professors Charles and Randall Kelso commend Our Undemocratic Constitution for its conciseness, clarity, and organization, they find it unconvincing in two respects. First, even assuming that Professor Levinson’s project for deliberative democracy is sensible, they argue that none of his proposals are pragmatic. The probability of the polity organizing for a constitutional convention to write a new constitution is nearly zero, and the political barriers that must be overcome to implement Levinson’s proposals in the manner he suggests are prohibitively high. Second, Professors Charles and Randall Kelso question the wisdom of Professor Levinson’s elevation of deliberative democracy as an end in itself. They point out that “the choice that must ultimately be made in advanced societies regarding majority rule and individual or minority rights is between rational principles of justice versus either self-interested interest-group politics or following the customs and traditions of society.” This is so because rational principles of justice are not necessary outcomes of democratic processes.
Referencing Lawrence Kohlberg’s six stages of moral reasoning, the authors of this Review argue that rational principles of justice are a higher end than democracy, and therefore the force of democratic majorities must be mitigated or mediated by those principles of justice (e.g., the “self-evident” truths espoused at the beginning of the Declaration of Independence). Thus, Professors Charles and Randall Kelso disagree with Professor Levinson’s core claim that deliberative democracy is the end to which our political institutions should be structured. They conclude by urging Professor Levinson to write a follow-up book in which he might attempt to discover solutions to the problems he identifies that work within the existing constitutional framework. They believe that a book along those lines would be worthy of generating “heated, and critically important, debate.”
