Chad Lundquist/Nevada Appeal
As we approach the end of another tumultuous year, I have an important political/historical question for you: Is the U.S. Constitution outmoded? And if so, should it be replaced by a more “modern” document?
This provocative question was raised in the Dec. 9 edition of New Yorker magazine by Jeffrey Toobin, a well-known law professor and legal analyst. “Everyone loves the Constitution,” Toobin wrote, quickly adding that “most other products of the 18th century ... have been replaced by improved models.” So let the debate begin.
To his credit, Toobin presented both sides of the issue. Arguing in favor of changing the Constitution was Harvard law professor Sanford Levinson. “If you had been in Independence Hall (in Philadelphia) on Sept. 17, 1787, would you have endorsed this Constitution?” he asked. Levinson went on to point out the original flaws in the Constitution, such as the continuation of slavery and denying women the right to vote. So far so good, but the Constitution was amended to correct these flaws.
“The (constitutional) system just does not work anymore,” Levinson declared. “The Constitution is both insufficiently democratic ... and significantly dysfunctional.” To counter Levinson, Toobin consulted an outspoken defender of the Constitution, controversial radio talk show host Mark Levin (pronounced “le-vinn”), a feisty lawyer who founded the conservative Landmark Legal Foundation. Toobin calls Levin “the country’s most widely followed commenter on the Constitution.”
Levin is a constitutionalist, which means he believes the Constitution’s meaning was set and fixed by the framers. End of debate. Not really, however, because Levinson and other “progressives” want to address the issue of proportional representation, among others. They argue that our present system is undemocratic because each state, large or small, has two senators.
“The Senate is not supposed to be democratic,” Levin asserted. “The framers did not want the popular vote to control everything.” Longtime conservative Sen. Orrin Hatch (R-Utah) echoed Levin, telling Toobin that the U.S. “has never been a democracy. This is a representative republic with heightened democratic principles.” I agree with Levin and Hatch and believe that the founders created the Senate and the Electoral College, among other institutions, to protect small, relatively sparsely populated states from the tyranny of the majority.
Can you imagine what would happen to Nevada if California had 20 senators and we had one? More than 70,000 tons of radioactive nuclear waste would be dumped on us before we knew what hit us. That’s just one example of how the tyranny of the majority would affect the Silver State.
I think the Tenth Amendment means what it says: “The powers not delegated to the United States by the Constitution ... are reserved to the states, respectively, or to the people.” I share Levin’s opinion that “the Affordable Care Act is the epitome of all that is wrong with modern American government.” And like Levin, I believe that “the Constitution can be understood by any ordinary citizen, not just a small priesthood of lawyers and judges.”
Toobin concluded his lengthy article with his personal opinion. “The compromises, misjudgments and failures of the men in Philadelphia haunt us still today,” he wrote. “But the founders also left just enough room between the lines to allow for a continuing reinvention of their work.” I think he means that judges should interpret the Constitution according to their political beliefs. No thanks! We don’t need to “reinvent” the Constitution. Leave it alone. Happy New Year!
Guy W. Farmer is the Appeal’s senior political columnist.
