The Hydraulics of Constitutional Reform: A Skeptical Response to Our Undemocratic Constitution

Abstract

Sandy Levinson's latest book, Our Undemocratic Constitution reveals Levinson at his most provocative and engaging. We are trapped, he tells us, in the "iron cage" of Article V. Our Constitution is in desperate need of amendment due to structural flaws that are hard-wired into the text of the Constitution. In order to avert the many crises Levinson describes, we must hold a constitutional convention. Though the bulk of the book is devoted to what Levinson has elsewhere termed "constitutional stupidities," Levinson's real quarrel is with Article V, which he argues "brings us all too close to the Lockean dream (or nightmare) of changeless stasis." The book is replete with references to Article V as a "cage," even an "iron cage-with its almost kryptonite-like bars." When one reads the book, especially its mournful concluding chapter admitting that little can be done, it is hard to escape the conclusion that if we loaned Levinson a constitutional eraser, Article V would instantly disappear. If I am overreading Levinson, then at the very least I take it that he wants to do anything possible to make constitutional conventions easier to hold, whether that means developing a tradition of having regular constitutional conventions, as Jefferson proposed, or loosening what are conventionally perceived as the strictures of Article V.