From the WSJ Opinion Archives
BOOKSHELF
What Happens
On Election Day
Do we need a constitutional convention?
If the party you prefer loses a string of elections, one response is to concede that it has the wrong policies or the wrong tactics. Another is to argue that the system itself is broken. Two new books take the second course and contend that American constitutional democracy is in deep trouble. Neither is written from what would be called a Red State perspective, which raises the question: Will a Democratic victory in today's election suddenly restore the integrity of America's political system and make the books less urgent for readers who have been feeling despair for the past couple of years?
In "Does American Democracy Still Work?" Alan Wolfe answers his own question with something equivalent to: if so, just barely and badly at that. For him, American democracy is in radical decline. Americans no longer get the information they need to make decisions properly, and politicians are no longer held accountable for the decisions they make in office. Emotional populist appeals, he believes, block out important facts. Meanwhile, "disinterested institutions," like the mainstream media and the courts, no longer do their jobs. The media feature "news items fashioned to public taste," and the courts, he argues, including the Supreme Court, are no longer nonpartisan, neutral arbiters for resolving disputes. As for the loss of accountability among elected officials, it stems from the uncompetitive nature of elections.
Such claims themselves have an unreliable, partisan feel. The rise of the Internet and of C-SPAN in recent years has generated more information than ever before--lightning-fast data on policies and their effects, on fund-raising sources, on voting records, and on the truth of campaign charges and countercharges. Emotional appeals and crude populist slogans still play a part in political debate, to be sure, but they are nothing today compared with the shrill and malicious campaign style of a half-century or century ago--and they wield less power now that Americans are better educated. That is one reason that class-warfare politics--a category particularly susceptible to demagoguery--is less potent than it was in the last century.
Nor is it clear that the American political system is less competitive. While most individual House races are not closely contested, it is party control (of entire chambers of Congress and of the presidency) that matters, determining the course of politics and ensuring overall accountability. On this measure, our electoral system has recently become more competitive. In 1994, for the first time in 40 years, the House changed hands, and it may do so again today. The Senate has shifted control five times in the past 26 years. Democrats are no longer the natural party of the national legislature, but they have not been shut out the way Republicans were for 30 years in the second half of the 20th century.
Mr. Wolfe fails to show that the institutions he praises as once "disinterested" were anything other than bastions of liberalism. Recent empirical analysis has suggested that reporters in the mainstream media lean overwhelmingly Democratic and that their reporting can show a leftward bias. The Supreme Court in the era that Mr. Wolfe celebrates imposed policies that were too unpopular to be enacted by elected officials (think only of busing). Mr. Wolfe's book, despite its title, actually mourns the demise of the aristocratic rather than democratic element in American politics.
In "Our Undemocratic Constitution," Sanford Levinson locates the flaws of the system in America's founding document itself--the Constitution. His book is more compelling that Mr. Wolfe's because of Mr. Levinson's breadth of erudition and his willingness to propose solutions to the flaws he perceives. On discrete matters he can be especially persuasive: He is entirely correct, for instance, that the Constitution should be amended to permit the temporary appointment of members of the House in the event that a terrorist attack harms a substantial number of them. Otherwise Congress will lack a quorum, and the government will cease to function when it most needs to.
Mr. Levinson is less persuasive when it comes to his larger argument: that Constitution is so pervasively flawed that a constitutional convention is required to revise our fundamental law. He contends that the Electoral College, the Senate, the presence of two legislative chambers and the presidential veto all detract from "real" democracy. The Electoral College and the Senate give an unfair advantage to voters in less populous states; the requirement that both House and Senate approve of a bill makes it harder to fashion new law, and the veto makes it harder still, privileging the status quo.
Of course, the Constitution's design has a purpose--to make democracy republican and not "direct," to slow it down, lest wayward passions push the country too violently in one direction or another. Time seems to have vindicated the Framers' wisdom on such matters. Under this Constitution, the U.S. has become the most prosperous nation in the world, the dynamo of the world's scientific and technological progress, and the defender of international liberty against the scourges of fascism and communism. It has also achieved a remarkable record of political continuity through periods of drastic social change. Mr. Levinson does not come close to showing why it would be prudent to rebuild this framework and put its redesign up for grabs.
Nor is he correct in some of particular complaints. Are populous states really put at a disadvantage by the Electoral College? In fact, candidates pay more attention to them because they are more likely to make a decisive difference in the electoral vote. (John Kerry and George W. Bush spent far more time in Ohio and Michigan than in New Mexico and Maine.)
As it happens, the Electoral College and the popular vote generate different results only in close elections, and in close elections the margin of error is such that voting results might differ if the election were held two days earlier or later or even if sunny weather gave way to rain. The electorate is always fickle at the margin. When the margin matters, no system can assure that a candidate is more popular in a transcendental sense. The Electoral College no less than the popular vote provides what is essential in a democracy--a common understanding of substantial support and legitimacy.
As for bicameralism and the veto power, the Framers themselves noted that these aspects of our system are meant to confer political stability. Such stability promotes both the private enterprise that is the source of our wealth and the steadfastness in honoring global commitments that is the source of our security. Forms of government, including democratic forms, are instruments of such greater goods, not ends in themselves.
Mr. McGinnis is a professor at Northwestern University's School of Law.
