Sanford Levinson - Our Undemocratic Constitution: Where the Constitution Goes Wrong

As always, the most pleasant pages to write are those acknowledging the assistance of persons and institutions without which this book would either not have been written at all or would have been considerably worse. One institution certainly has justified priority: The Rockefeller Foundation, by inviting me to spend a month as a fellow at its center in Bellagio, not only provided me (and my wife, about whom more presently) an unforgettable opportunity to experience an almost Edenic life, given the beauty of the venue and the attentiveness of everyone who operates the center, but also made it possible for me actually to write this book. There are few acknowledgments more truly merited than this one. I also express my deepest thanks to three colleagues and friends who wrote persuasive letters of recommendation on behalf of my residency and project, George Fletcher, Barry Friedman, and Linda Mullenix.

Part of what is special about Bellagio is the range of people there. This book is directed at a lay audience, and I am immensely grateful for the helpful (and encouraging) feedback received from Dr. David Coster and Polly Pen, both nonlawyers who nonetheless threw themselves into reading the manuscript at its earliest stage. I also benefited and received encouragement from having the opportunity to present an outline of my project to the fellows, all of whom asked probing questions and offered helpful suggestions. It is especially fortunate that the group during my stay included Raul Pangalangan, the dean of the University of the Philippines Law School, not least because his country has, perhaps unwisely, borrowed more extensively from the U.S. Constitution than other countries that have written postWorld War II constitutions.

I have often received helpful feedback from my wife, Cynthia, but never more so than in this case. She is a better writer than I am. Moreover, as a nonlawyer, she is part of the target audience. She was willing to read multiple versions of every chapter and to offer many helpful suggestions (especially with regard to such writing tics of mine as the overuse of parenthetical phrases). I have no doubt that she has made the book more reader-friendly and better than would otherwise have been the case.

Another institution that deserves ample mention is the University of Texas Law School, to which I am endlessly grateful for the ways it has allowed me to flourish for what is now more than a quarter century. Although there are many colleagues who deserve to be mentioned, I must single out Scot Powe, a dedicatee whose friendship and general colleagueship have been an important part of my life at UT over this entire period. He read both the earliest and latest versions of this manuscript and saved me from some errors, at least of fact. I must also single out my friend and now, alas, former dean, William Powers, though the alas is mitigated by the knowledge and pleasure that he is now president of the University of Texas at Austin. He was a major reason that I came to UT in 1980 and that I will live out my career at UT. Other colleaguesErnie Young, Mitch Berman, Lynn Baker, Larry Sager, and Charles Silveroffered me valuable feedback, including, in some cases, sharp criticism of my own criticisms of the Constitution. I should also single out one other University of Texas friend and colleague, Philip Bobbitt, who consistently expressed his dismay at my ideas as I set them out in many pleasant walks around Town Lake in Austin.

I have also been blessed by a number of important friendships with colleagues from institutions other than the University of Texas, though my relationships with two of them began there. Jack Balkin left Texas for Yale, but, fortunately, that has not hindered a close friendship and collaboration in the ensuing years. It was during a joint seminar on constitutional design that we offered at the Yale Law School that I fully realized how deservedly uninfluential the U.S. Constitution was among constitution drafters in the half century following World War II. (Conversations with another Yale friend, Bruce Ackerman, also brought home this point.) Another very special colleague is Mark Graber. His extraordinary book on the politics of slavery taught me the baleful importance of the Constitutions exclusive reliance on narrowly based local representation in the Congress, though the importance of Mark to my work goes far beyond this one citation. From commenting on my initial proposal to Oxford University Press to reading several different versions of the manuscript, he has proved himself to be the consummate friend and colleague. I am confident that he made the book far better than it would have been otherwise; perhaps it would have been still better had I accepted even more of his suggestions with regard to substantive points on which we disagree. He is an admirable adherent of the Madisonian tradition that I, who discovered my unexpectedly deep Jeffersonian roots in the course of writing this book, am attacking.

In some ways, the gestation of this book is a long walk that Bill Eskridge, John Ferejohn, and I took back to our hotel in New Orleans after a 1995 conference at Tulane University on constitutional design, when we started riffing on what were the stupidest parts of our own Constitution. That conversation ultimately led first to a symposium published in Constitutional Commentary and then a book, Constitutional Stupidities, Constitutional Tragedies (1998), both of them co-edited by Bill and myself. I am grateful not only to Bill and to the editors of Constitutional Commentary, but also to Linda Greenhouse, who wrote about the symposium in the New York Times and thus encouraged NYU Press to publish the book in 1998. I am also grateful to the Georgia State University School of Law, which in 2000 gave me an opportunity to deliver a lecture on Why Its Smart to Think about Constitutional Stupidities. Later that year, following the Bush v. Gore debacle, the Washington Post gave me space to discuss the extent to which the Constitution generated the possibility of various train wrecks, in this case through the operation of the electoral college. Finally, Findlaw.com in 2003 printed a column in which I initially explained my refusal to sign the Constitution at the National Constitution Center.

The Internet serves to create a world of colleagueship even among people who have never met and who often sharply disagree with one another. I have been a long-time userand sometime abuserof a constitutional law listserv created by my friend Eugene Volokh of the UCLA Law School, and a law-and-politics discussion group moderated by another friend, Howard Gillman. One of the participants in the former is Danny J. Boggs, a member of the U.S. Court of Appeals for the Sixth Circuit, who provided me with valuable information about the makeup of the Senate that saved me from an embarrassing error.

I am deeply grateful to the following friends, several of them, very importantly, nonlawyers, who read the manuscript and offered valuable suggestions: Sam Bagenstos, Lief Carter, Betty Sue Flowers, Roberta Krakoff, Dana Lee, Rosemary Mahoney, Bill Marshall, Richard Rabinowitz, Miguel Schor, Louis Michael Seidman, Margo Shlanger, Ariel Waldman, and Alan Wolfe. And, as always, I appreciate beyond measure my two splendid daughters, Meira and Rachel, the first a political philosopher and middle-school social studies teacher, the other a lawyer, both of whom offered valuable perspectives in conversations about the themes of this book.

Finally, once again I happily praise Dedi Felman, who was sufficiently intrigued by a brief outline of this book to offer me a contract. Even more important is the consistent interest she has taken in every aspect of the project throughout its preparation. She is indeed a model editorand friend.