"Our Undemocratic Constitution"

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School.

He applied the "page 69 test" to his most recent book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), and reported the following:

Page 69 of Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) includes the beginning of a new section, "The Constitution as Inadvertent Promoter of Discontinuity in Government (and Presidential Dictatorship)." The general thesis of the book is that the U.S. Constitution is so far from perfect as to contain a number of "clear and present dangers" in what I call its "hard-wired" features, i.e., the rigid structural features of the Constitution that are not subject to litigation or imaginative (re)interpretation. This particular section discusses the fact that a catastrophic attack on the U.S. that disabled (but did not kill) most senators and either killed or disabled most members of the House of Representatives would leave us vulnerable to the following situation: Because the Constitution requires a majority of its members to constitute a quorum, if a majority of each House was disabled, then, technically speaking, neither House could meet. (Dead senators, incidentally, don't present the same kind of problem, as the 17th Amendment allows governors immediately to name their successors. The Constitution, however, requires that all members of the House be elected. Dead representatives "solve" the quorum problem, but generate a perhaps more serious legitimacy problem if, for example, there were only relatively few representatives alive to constitute the quorum.) Since it would be essential that government act in the immediate aftermath of such an attack, the Constitution itself, because of the way that it can effectively eliminate Congress as an effective/legitimate actor, encourages a presidential dictatorship. As it happens, the Brookings Institution and American Enterprise Institute have jointly suggested a corrective amendment, but it has gone nowhere because of the adamant opposition of former Chair of the House Judiciary Committee James Sensenbrenner, a conservative Republican but radical democrat who hates the idea that governors might be able to appoint any members of the House, even in the circumstances of a catastrophic attack. It will be interested to see if it makes a difference that John Conyers is now chair of the Committee.

Although this is scarcely the most serious defect in our Constitution, p. 69 does illustrate the major theme of the book quite well, save, perhaps, for the relative ease with which this particular defect could be cured. We mistakenly view the Constitution primarily as a charter of rights and tend to ignore its much more important function as providing, for good and definitely for ill, the basic structures of governance.

Read a brief description of Our Undemocratic Constitution.

Review the complete list of books in the Page 69 Test Series.

--Marshal Zeringue