Tom Hurst writes on liberty, free markets, private property rights, government and the Constitution from Nevada, USA
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The Embarrassing Sanford "Constitutional Convention" Levinson

By Tom Hurst, 27 September 2007

On Constitution Day this year (17 September) I had the unfortunate opportunity to hear the infamous "Constitutional scholar" Dr. Sanford Levinson speak at the University of Nevada-Las Vegas. And speak he did, mercilessly pumping his recent book, "Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It)", explaining how he desperately wants to convene a Constitutional Convention "for the good of America". A Constitutional what? The man must surely be crazy, I thought. Well, by the end of the evening he had confirmed beyond a shadow of a doubt my initial impression that a Constitutional Convention would be America's worst nightmare. Let me tell you what he said, and why he is emphatically and totally wrong in his views - so very wrong that he might be considered un-American according to the values of the Founders.

He first set the stage for the debate by proclaiming his non-partisanship, which he repeatedly and irritatingly re-proclaimed throughout his speech. Unfortunately, though expectedly, as the evening wore on it was more than obvious that his views on the Constitution were decidedly partisan no matter his proclamations. And knowing that he is an eminent and respected professor of law, I'm assuming you know which way he leaned, or rather fell. In any case, his basic thesis was that what he called the "hard-wired" parts of the Constitution - the mechanics of elections, the number of elected representatives each state should have, etc. - are "totally dysfunctional", and that he intended to talk about that and not about the spirit or substantive parts - protecting rights, limiting government power, etc. - of the Constitution. Fair enough - except for the ultra-obvious fact that by far the more important aspects of the Constitution are the latter and not the former, and that it is also the latter and not the former that, despite the words written in our Constitution, are mightily and frequently abused by one and all. In fact, the Founders wrote the Constitution intending that the only valid function of government was to protect our fundamental rights - life, liberty and property. Strike one.

My next observation is that if our government conducted business per the spirit and letter of the substantive parts of the Constitution, it would be largely irrelevant how Dr. Levinson's supposedly dysfunctional "hard-wired" parts worked to elect public servants or determine how much representation each state had. That is, of course, because probably 99% of what our current government does - whether legislative, regulatory, judicial or financial - is absolutely and totally unconstitutional. If you doubt my words, simply look to the writings of the Founders to see that their ideal was an extremely limited government whose only function was to protect our fundamental rights. Not to provide for us via a welfare state, not to promote liberty via the warfare state, not to steal the fruits of our labor, and not to manage every aspect of our lives and the economy. Without these responsibilities which the government has unconstitutionally taken on, there would be little need for special interest groups or corporate lobbyists to influence government for beneficial legislation, subsidies or contracts because there would be no rewards to be had. Simply stated, one need not fear that the evil hand might steal from an empty cookie jar - and that is the situation the Founders sought to create via the Constitution. So, if we had a Constitutional government, Levinson's primary thesis is simply irrelevant. Strike two.

Finally, just think about what nightmarish changes would come about if we were to convene a Constitutional Convention with most people and most politicians being socialists through and through. Remember, these are people who in spite of our existing Constitution continually praise and invoke the coercive power of government to take from individuals according to their means and give to others according to their "needs". Such people would no doubt insure that the substantive parts of any new constitution would allow them to run absolutely every aspect of our lives. In fact, I'd venture to say that if we convened a Constitutional Convention now, we would end up with something more akin to the Communist Manifesto than a constitution designed primarily to protect the rights of sovereign individuals. At the very least, they would end up institutionalizing and codifying a powerful "tyranny of the majority" - something that the Founders rightly feared and greatly despised. In the words of Thomas Jefferson, "A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine." How true, and for that reason the Founders created a Constitutional Republic, *not* a democracy. Of course, that distinction was totally lost on Dr. Levinson as he incessantly proclaimed that the majority should determine how the country is run, that the Constitution is "insufficiently democratic", and that America is a "democracy". Further, he felt that democracy was something that America should "promote around the world". Whatever has happened to Jefferson's Constitutional wisdom of "peace, commerce, and honest friendship with all nations - entangling alliances with none."? In any case, while I will concede that there are some minor structural problems with the Constitution, I am wisely not willing to play with fire in the powder magazine. Strike three.

And so the evening ended with Dr. Sanford Levinson striking out. It was sad, actually, to listen to an influential academic with such seemingly little knowledge of the Constitution of the Founders proceed to tear it down based on his own distorted vision of how it should be. How would Dr. Levinson change the "hard-wired", structural parts of the Constitution to his liking? Low population states should have fewer Senators, and high population states should have more was one idea. Others were that passing legislation should take fewer votes, amending the Constitution should be far easier, and that the president should be elected by popular vote and have no veto power. All of these changes would, of course, in an instant lead to the aforementioned tyranny of the majority and, ultimately, to pure socialism. I wonder, why does he think the Founders created three branches of government, or gave the House and Senate differing compositions, responsibilities and rules of election? Or does he realize that the Founders - all of them exceptionally wise, educated, and honorable - wrote the Constitution as they did because they knew that a Constitutional republic with very limited government powers would be a far better friend to liberty than the popular democracy that Dr. Levinson and his ilk promote? Truly, it is pathetic that in the 21st century people like Dr. Levinson have somehow come to pass for eminent Constitutional scholars. For reading beyond his preposterous new book - if you think you can stand it - he has also written an infamous article, "The Embarrassing 2nd Amendment", yet another travesty to liberty (and the inspiration for this article's title). To be fair, though, last year's Constitution Day speaker, Akhil Reed Amar, author of "America's Constitution: A Biography" and also a supposedly eminent Constitutional scholar, was no better in that he amazingly interpreted the humble "commerce clause" in the Constitution to authorize government to run absolutely every aspect of our lives. The fact of the matter is that both of these men are quintessential representatives of the statist, socialist, intellectually shallow, self-serving mind set that has become endemic to our system of higher education. And through their ignorance, both would willingly sacrifice our hard won liberty as they rewrote - literally or figuratively - our Constitution. Well, at least you now know of some prominent enemies of liberty and a few books not worth your time!

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Tom Hurst - Defender of liberty, free markets, private property rights, and the Constitution