Sanford Levinson, Framed: America’s 51 Constitutions and the Crisis of Governance, New York: NY: Oxford University Press, 2012, 437 pages inclusive of index. Hardcover, $29.95, ISBN 978-0-19-989075-0
In the unlikely event I were called upon to help rewrite the federal or a state constitution, I would be sure I had a copy of Sanford Levinson’s Framed: America’s 51 Constitutions and the Crisis of Governance. The book is also eminently useful for the more likely (albeit less dramatic) case of a researcher that wants to think deeply and critically about how American federal and state governments are structured.
Levinson starts by setting aside most of what people think of as “constitutional law.” Topics of major constitutional debate involving controversy over how the Constitution should be properly interpreted comprise what Levinson calls the “constitution of conversation.” Levinson instead focuses on the “constitution of settlement,” those provisions over which there is little disagreement about their meaning. Should federal judges be appointed for life? Should Congress be a bicameral legislature? Should the electorate be able to vote on constitutional amendments? These are not questions of proper interpretation of constitutional text, but rather of the wisdom of structural decisions that, for the most part, were made generations ago.
Reading the book feels a bit like taking a class; Levinson asks more questions than he answers, and he tends to only vaguely allude to his own opinions. On a few matters, though, his views are clear. Whatever the wisdom of the men who drafted the Constitution in 1789, their choices may not be the best now, especially given the United States’ greater population and the increased importance of political parties. Structural choices made in constitutions strongly influence other policy decisions. When considering structural changes, it is wise to look at constitutions of the fifty states and of other nations. I found the discussion of other states’ constitutions fascinating; in many states, constitutional amendments can be proposed and enacted by the electorate, while even the President of the United States is not directly elected.
Levinson’s ultimate proposal is ambitious: a new constitutional convention to revise the federal constitution. Delegates for each state would proportional to each state’s share of the population and selected through lottery. Even though I am not yet convinced that is the best mechanism for constitutional revision, Framed has persuaded me that the federal constitution is in need of some updating. Not every provision is sacred, and we need not be afraid of reworking the foundational document of our government to make it more efficient and effective.
Framed is an intellectually stimulating and refreshing course in constitutional design. It is scholarly, but mostly free of jargon. It is a great choice for academic and public libraries.