Yesterday, I had the honour of meeting UT Austin constitutional law professor Sanford Levinson. Amongst other celebrated works, he wrote Our Undemocratic Constitution: where the Constitution goes wrong (and how we the people can correct it). In this book, Levinson targets the mythical 1789 Constitution of the United States. He boldly argues that several aspects of its design do not meet 21st century democratic standards. I summarize three of Levinson’s arguments and try to show that his analysis is also relevant to Dutch constitutionalism.
One of the major issues Levinson considers is the allocation of power in the American Senate. According to Article 2(3) of the Constitution, the Senate of the United States shall be composed of two Senators from each State. 225 years ago, it might have seemed plausible or even necessary to give each state equal suffrage in this representative body. Today, however, the seven smallest states (total population 14 million) have, taken together, the same amount of Senators as the seven biggest states have (total population 124 million). It boils down to the fact that almost a quarter of the American Senate is elected by less than 5 percent of the total US population. Or, to put it differently, that a citizen from Nevada has seventy times more voting power than a citizen from neighbouring California. Some degree of unequal representation exists in almost every senate, Levinson admits. But the question is whether the extremely unequal representation in the US Senate can continued to be justified.
The second issue Levinson discusses is the extent of presidential power. A modern US president operates basically under the same constitutional framework as George Washington (America’s first president) did. During the past 225 years, however, presidents have accumulated more and more additional powers, especially in times of crisis. This process has been particularly visible since 9/11. Wide-ranging discretionary powers have been conferred upon the office under the heading of the War on Terror. The legislation in question has been interpreted very broadly and off-the-scale emergency powers have been assumed. This development brought about the issues of torture and controversial NSA intelligence gathering, amongst other things. The problem is that the old 1789 constitutional document does not offer a clear understanding of the limits of presidential power. Levinson warns for ‘the possibility that the occupant of the White House is too unconstrained and can all too easily engage in dramatic exertions of power, especially in the realm of foreign policy’.
The rigidity of the US Constitution is another aspect Levinson denounces. Article V provides that two thirds of both houses of congress and three fourths of the several states’ legislators can amend the document. The Congress and the states can also call for a constitutional convention. But, in reality Article V is an ‘iron cage’. It is virtually impossible to amend the Constitution with regards to anything truly significant. Levinson points towards the possibility of developing other, more informal, methods of constitutional change. However, such methods are not always available and may raise important objections with regard to the lack of transparency that is commonly attached to informal processes.
Levinson’s critical analysis of the US constitution may inspire Dutch constitutionalists to assess the democratic merits of our own constitution. The 1815 document of the Netherlands still grants the upper house of parliament (de Eerste Kamer), for instance, a veto power in the legislative process while this house is only indirectly elected. A contemporary account of democracy could plead for a more modest role. Another issue of concern may be the political party. The Dutch constitution is silent on this important institution. As a consequence, it awkwardly allows for political parties that have only one voting member, namely the leader himself. But the most important issue would surely be the Dutch constitutional amendment procedure. Like its American counterpart, this procedure renders the document functionally impossible to change. The result is that the Dutch people can hardly regulate constitutional issues properly. And what is more, they have been left with a few unalterable dictates from generations long gone. Levinson challenges us to ask to what extent we can call such a constitutional system democratic.