>> next, professor sanford levinson sat down with booktv to talk about his book, "constitutional faith" arguing the u.s. constitution is worshiped to a degree that's unhealthy for our democracy. this is part of booktv's college series, and we're at the university of texas at austin this week. >> you're watching booktv on c-span2, 48 hours of nonfiction books every weekend, and we're on campus of the university of texas in austin as part of our university series here on booktv, and we're pleased to be joined by sanford levinson, who is a professor of law here at the university of texas and the author of this book "among -- among others, "constitutional faith" is what we're talking about. do americans have too much faith in the constitution in your view? >> yes. i think that one of the

exceptional aspects about the united states is a great deal of discussion these days about american exceptionalism is the attitude directed towards the united states constitution. there's no other country in the world i'm aware of that has such venneration to their constitution, and it's interesting to compare it with the 50 state constitutions that most americans really are not aware they live under a state constitution as well as the national constitution and except maybe in massachusetts because john adams drafted the 1780 # constitution, and it is, in fact, the oldest constitution in the united states, but otherwise, there's no sense of

safe in state constitutions. most states had around three constitutions. georgia and louisiana had 22 constitutions between the two of them, and it's instrumental. what has the constitution done for us lately? view from the states, they are amended all the time. some people use that as a criticism of state constitutions. i actually think that might be a strength. the united states constitution partly because it is the most difficult to amend constitution in the entire world, and partly because of this degree of this has been amended extraordinarily rarely. i mean, if you put the bill of rights to one side because that's really part of the politics of the original radification process since 1791,

there's been 17 amendment, and that's extraordinarily few. this leads to all sorts of con convinces from my perspective. one of the consequences is that the constitution is tremendously out of date with regard to some of our basic structures which are very, very much the ones that were given us in 1787, but it also means that there's been a lot of what lawyers have come to call informal amendments where congress or the president will act aggressively and then the supreme court will basically uphold it, or on occasion, the supreme court is innovative, and what in some of the american states or in other countries might actually be the subject of

formal amendment in this country takes praise in informal ways in part because of the difficulty to amend the u.s. constitution, and anybody who suggests amendment is going to run head on into newspaper editorials of the like of how dare you think of amending our perfect constitution. i don't think our constitution is anywhere close to perfect. i really wish we had a dialogue, a popular dialogue that addressed the need for the own amendment, and one of the things i find interesting about the president reel race that's -- presidential race that's already occurring, particularly among the republicans, is there is talk of constitutional amendment even though these candidates

fall over themselves with which loves the constitution more than the other, by this doesn't stop them from saying even though they love it, they want to see things changes. governor perry proposed amending the 17th amendment, the election of senators, and it is, in fact, a very important amendment because prior to the 17th amendment, senators were at least formally chosen by state legislatures, and you could make a halfway plausible argument that the senate had something to do with protecting federalism because you could construct a story whereby senators would worry about keeping their jobs, to keep their jobs, they would have to have the good will of state legislators, and this meant they had to be concerned with protecting the prerogatives of state government, things like

that. once senators are popularly elected, they don't worry about state government. they worry about bringing home the bacon, and so from my perspective, the modern senate is nothing more than an affirmative action program for the residents of small state, and of all the affirmative action programs in the country, this is probably the least defensible. yes, to go back to the initial question, i think americans have, at times, the most ridiculous vennration of the constitution far more than the framers themselves who recognized, and i mean this respectfully, not as founder bashing, but they made it up as they went along because there was no precedent for the united states constitution. they were in a very, very hot philadelphia summer trying to

figure out a first draft, and i think they would have been astonished at the fact there has been no national convention since 1787 even though article five presents the possibility of one, and they would be shockedded at how few amendments there's been. >> in your view, does the constitution prohibit progress, or does it stand in the way? >> it certainly stands in the way. i don't think it prohits progress, but i think it stands in the way in that the framers in 1787 we basically suspicious of democracy. the original constitution, even if compared to other political systems at the time was more

democratic. if you compare it to 20th and 21st century notions of democracy, the 1787 constitution is significantly undemocratic, and one of the things that they were fearful of -- this is part of the anti-democratic tilt -- they were very fearful of what they called popular passion, and basically, i would say rule by the great unwashed, so they put in all sorts of veto points. we have a bicameral system which means that for any bill to be a law, it has to pass an identical form in both the house and the senate. that's not written in stone with the very idea of bicameralism. there's bicameral systems around

the world where you can break deadlocks where the equivalent of house representatives could break deadlock with a super majority vote or something like that. we don't have that system, but besides the consequences of bicameralism, part of that, of course, is a wildly narrow portioned senate, so it is one house that is roughly representative of the people; the other house is grow tees ky misrepresented by the majority of the united states because the fact that wyoming and california have the same representation in the senate even though california is 70 times the population, so, for example, if one wants to understand why we have basically a dreadful agriculture policy, you have to understand the undo influence

that the upper midwest has in the senate that if the house got to make agricultural policy, we'd have quite different policies, but it's not simply that bicameralism makes it difficult to pass legislation. we really are in substantial ways a tricam rail system because of the -- tricameral system because of the presidential veto, and it's not simply the use by the president of the veto, which means that this one individual can just wipe out legislation that is supported by 60% of both the house and the senate -- that's not good enough because it takes two-thirds of each house to override, but also the very threat to veto legislation will shape legislation, will make it -- will lead members of

congress to pull back. sometimes you're not introducing legislation at all, sometimes to make compromises that weaken it. now, what this does, does the constitution stand in the way of progress? i would say yes, but you can also say people who like the constitution more than i did would say, well, the constitution also stands in the way of falling back or of regressive legislation. the real point is that the constitution makes difficult to pass any legislation. as a political liberal, i could come up with a great deal of legislation that i think the country very much needs, that the constitution, that the structures established by the constitution make it very difficult, and in some cases, impossible to pass, but if i

were a political conservative, i could come up with a different litany of legislation that i thought was tremendously important, that our system also makes it impossible to pass. i like the idea of a strong medical care bill. my complaint about the one that passed is it's not strong enough. i would have liked a single payer system. >> how does that fit into the constitution? >> well, because i think a single payer system was never a real starter because the senate would block it, so that putting to one side whatever character tendencies president obama has to be very quick to compromise, i also think he realized that it was just hopeless to get a stronger bill than he got through the senate. we're all familiar with these

sausage-like compromises that he had to make with mary landruie in order to got to the vote, but the modern senate uses the filibuster, but let's say i was a political conservative who thought that the affordable care act is terrible and should be repealed as soon as possible. well, it's not unrealistic to imagine that president obama will be reelected in 2012 and that the republican party will continue to control the house and game the senate, so one would expect them hr1, you might very well expect to be a bill to repeal what they call obamacare, but the president will veto it. now, as a political liberal,

that's fine with me, but if i were conservative, i would be furious. i'd say, look, we've had this national debate, we won the house and the senate, but it really doesn't matter because this one person can block the legislation, so i really do think that americans spend an insufficient amount 6 time thinking -- of time thinking of issues that if they've ever been taught, it might well have been when they were in the 7th grade because what i'm really talking about is what used to be the subject matter, a very old-fashioned civic course. how does a bill become a law? how many votes does it take to overturn a presidential veto? how do we overturn the constitution? most people find these subjects extraordinary boring. they want to talk about rights. they want to talk about first

amendments. what can you talk about without getting thrown in jail and affirmative action, and guns. things i teach they talk about, but i also think that these civics course sorts of issues are not at all boring. once you realize that they really explain why it is that we can't address as a national political system the most important problems that are in prompt of us, -- front of us, and what the supreme court does frankly is of importance to issues like medical care, climate change, getting control of entitlement spending, developing a rational policy on immigration, i mean,

there are whole sets of issues. some of them that would be perceived as having a liberal tilt, some perceived as having conservative tilt, but i think what most people agree on, and you find this increasingly in newspaper columns that the pundits write or editorials whereas the editor that our government is dysfunctional, that, in fact, tom friedman in the "new york times" described this path loming call. now, what upsets me about somebody like friedman who is obviously very, very smart and clearly recognizes, i believe, correctly, that our political system is in trouble, is that he doesn't connect the dots between the constitution itself and some of the explanations for the pathologies or dysfunctionalties. i don't think it's all the fault

of the constitution. one has to talk about other sorts of general problems, but i do think the constitution makes its own negative contribution to the present unhappiness where i think current polling data shows that congress has an approve rate of something like 12%-14%, and at that level, it simply can't be explained on grounds of partisanship. i mean, you might imagine, well, democrats don't like congress, but republicans would or republicans wouldn't like congress, but departments would, but when it's 12%, one of the things you know is that an overwhelming amount of the country really does feel alienated from its political system. >> professor, when you go back to the original intent of the founders, and i'd like you to expand on that phrase "original

intent" but wasn't part of the original intent to protect the minority and to avoid allowing for trendy constitutional amendments? >> sure, sure. >> such as prohibition or balanced budget amendment? >> sure 6789 -- sure. there's no doubt they were concerned with putting impediments in what i call as democratic decision making, that is majority rule. now, the problem, i think, with focusing in the general way on protecting minorities is, well, which minorities are you must concerned about, and which of them most deserves protection, and how does the constitution protect these minorities? if you read the framers, i think it's fair to say that the minority they were most concerned about were people with

property. this is made very clear in the 78th federalist paper which is the principle justification for judicial review. it's written by alexander hamilton where he said all together plausibly that if we became a more democratic system, begin that the majority of the -- given that the majority of the country is have-notes, they would use their political power to take from the haves, and the great thing about the supreme court is it would try to protect the property of the haves against the redistribute of legislation that would shift it to the have-nots. it's also the case that the various impediments that i was mentioning to legislation are a way of protecting the status quo, and i think that the most important status quo that a

number of -- not all -- but a number of the framers were concerned about is protecting the current distribution of wealth and trying to prevent the majority from changing that distribution. now, as i said a few moments ago, the minority that is most strongly protected by our structural constitution is the residents of small states because they have this disproportioned power in the senate, and i think it's -- i think it would be telling that if a proponent of what we generally view as affirmative action in american politics, somebody concerned about a particular race or ethnic minority said, look, in addition to putting a little bit of a thumb on the scale, when

admitting people to college or hiring people for jobs or the like, let's give members of this group 20 extra votes. that would be viewed as un-american wildly off the market, but then you look at wyoming where the vote of each wyoming is worth 70 times the vote of somebody from california, and that's not viewed as at all strange. with regard to the still disputed election of 2000, where most of the ang #er and -- anger and debate is about florida and bush vs. gore, but it's also the case that george w. bush won the election because

by carrying the three states of wyoming, south dakota, and south dakota, he got nine electoral votes whereas al gore by winning new mexico, which has the same total population as the two dakotas and wyoming, only got five electoral vote, and that made all the difference, but that wasn't viewed as anything to be concerned about. one of the astonishing things in the aftermath of the 2000 election is that there was so little date about the -- debate about the electoral college which is another feature of the political system that serves us very, very badly, and i think that one of the reasons it got so little attention is not merely the -- in fact,

gallop poles show since 1994, the majority of americans if asked a straight up and down question would replace the electoral college with popular election, but you run into the view that nothing can be done because it is next to impossible to amend the constitution, so that -- have with regard to this presidential season, even if you have proposals to amend the constitution like the 17th amendment or to prohibit same-sex marriage, prohibit flag burning and the like, nobody seriously believes that any of these amendments, will, in fact, be adopted, and in the case of say like a flag burning amendment, it would have no genuine impact on the way american politics are conducted. if one is concerned as i am about these more structural

impediments, then nothing's going to change. the people who support the repeal of the 17th amendment aren't crazy, and i think it's unfortunate that liberals who oppose repeal of the 17th amendment do so usually by saying, well, it's just crazy to think of amending our constitution rather than to say, no, the 17th amendment was a very good addition to the constitution because there's no reason in the world to have this senate picked by state legislatures. you really want people to pick our national officials, and then ultimately, this is a reason why i think we should have direct election of the president rather than to go through this rather bizarre institution of the electoral college. >> in the new after ward to your book that you originally wrote in 1988 -- >> uh-huh. >> this is a 2011 after ward.

you wrote a major point is the founders were fully aware they wrote an imperfect document and expected it to be amended as americans learned the lessons from learning under it. we betrayed that aspect of the founders' vision. instead, one can find in a left wing magazine like "the nation" an attack on tea party constitutionalism that concludes ordinary americans love the constitution as least as much as far right ideologs. it's our constitution, too. it's time to take it back. then you write, well, i am one american who very definitely does not love the constitution, and therefore, has lost whatever faith i might have had that the conversational possibilities were enough to justify a commitment to it. >> yep. i wrote it, and i believe that.

i don't want to say, because i certainly don't believe, that i reject every last word in the constitution. i'm very, very serious when i say that i think the preamble is inspiring, and i think we ought to read and think about the preamble more than we do because that tells us what the point of this enterprise is to establish justice, to secure the blessings of liberty and the like, and i think we ought to be inspired by the vision of the framers, but then i think we need to ask, well, to what extent does the system they gave us provide a way of establishing justice or assuring the blessings of libber ten -- liberty and the like, and there i would be much, much critical,

and the quote you read from the nation, an article written by a good friend of mine, i do have grudging respect for some of the members of the teayw/ it might help if state legislatures were once again given the power to elect senators. now, i don't share that vision, but i think it's a valuable conversation to have, and what -- as i say, what i commend in them or the balanced budget

amendment, which i also strongly oppose, but it does serve as a way of initiating conversation about what are the implications of adopting certain structures of government or limit some government. also if it needs to be safe, i like the bill of rights. i like the 14th amendment. it's not, as i a, that i want to tear up the constitution and everything in it, but i have come to believe that the most important parts of the constitution are the ones we generally don't talk about which are the structural provisions because especially since world war ii, we have focused element exclusively on the rights provisions like the bill of rights or the 14th amendment, and i think that's a very, very

big mistake. if we had more time, i would be happy to be very, very critical of the way that constitutional law is taught in american law schools because we focus so obsessively on what the supreme court does, and i think even in those high schools that do teach courses on american government, they spend most of their time talking about the rights provisions because they are fun to talk about, and kind of convey a sense to the students that things like bicameralism and the veto and the ways we can amend the constitution are just dull and boring and not really worth talking about, and i think that's just a fundmental mistake if you're trying to understand

both how our system works and much more relevantly why people are so angry these days. they just don't feel that they're being well served by their government, and i think they are right, and then you ask, well, why not? for me, part of the reason, not all of the reason, but part of the reason is this set of structures that makes it systematically near impossible to respond adequately to the challenges of the 21st century. >> sanford levinson, what about the magna carta system that the british have? does that work better to have an unseen, unwritten constitution? >> well, that's a very, very important question. i have come to believe that there are real strengths to a parliamentary system.

by definition, it means if you win the election, you can tell because the party that takes over, the coalition that takes over can really do things, and, of course, this raises the specter maybe they are moving too quickly, maybe too abrupt, maybe they'll pass bad laws, but it's certainly difficult to look at the united kingdom and say they had a noticeably worse system of government than we have based on whatever criteria you wish. one of the things that i add advocate in the book that i published most recently called "our democratic constitution" as i elude to in the afterward is that i'd like to see a new constitutional convention, and my fantasy for a new constitutional convention is that it would last two years,

and that the people at the convention, and i assume it would be on c-span. i already enlisted c-span to broadcast this as the ultimate reality television show. is that they would do really what james madison did to study very widely different kinds of political systems, not only all over the world, but within the united states. i mentioned earlier my interest in state constitutions. one of the really interesting things about american state constitutions is how different many of them look from the united states' constitution. the united states' constitution, i come to believe, was written and ratify at the last possible historical moment where you could have gotten a constitution as basically undemocratic as the united states' constitution is if you look at the 1820s and

afterward, you find very different kinds of constitutions for better or for worse, and by 1846, the new york constitution, very influencing on other states, adopted the practice of electing judges. most judges in the united states are legislated or are electorally accountable. now, this is very controversial. a lot of people don't like this, but there are really interesting aspects, and there's something to be said for an elected judiciary as well as to criticize it. as you move to the west coast, but not only the west coast, you find much more direct democracy, initiative referendum, the ability of people basically to go around the legislature. the united states constitution

is committed exclusively to representative democracy. there is not an ioata in the united states constitution. 49 of the 50* states have some element of direct democracy, and many of us think immediately of california, and california is always a controversial state, but maine also has direct democracy so that couple years ago the elector rat in maine was able to vote done a same-sex marriage law that had passed the main legislature and had been signed by the governor. given my views, i am very, very sorry that the main electorat repealed that law. that being said, i actually like a political system where an

aroused legislation can veto something passed by the governor. i think we'd be better with an element of direct democracy, so i really do think that, you know, we can say, yes, i love parts of the constitution, but a lot of thepu constitutiondxej i distinctly unlovable,. and we should try(i to make it$ñeú mox: lovable.u the constitution is not tied to our unconditional love. maybe our children and spouses are entitled to unconditional love, but not the constitution. >> we're on the university of texas campus in austin talking with professor sanford levinson about one of his books, "constitutional faith".

very quickly, professor, the cover p this book, it looks -- is this to take on the 10 commandments here? is this the image we are supposed to get or a stone tablet, set in stone type thing? >> well, first of all, i'm very grateful to the princeton university press both for reprinting this book with the afterward after close to 25 years, and also this design. i like the cover a great deal. i think you're right. i think it does evoke a bit the 10 commandments, the written in stone aspect, but i think also if you wish, you can see in that elements of the gravestone so constitutions have lifetimes. the -- our first constitution in the united states, national

constitution, the federation, which lasted six years, and it was decidedly and unromantically junked by the framers in philadelphia because they thought that it was wildly dysfunctional. they don't use terms like dysfunctional, but that was the view of the articles. a colleague of mine here at the university of texas government department, sach -- zach, is the author of department of constitutions, and if you look all over the world, the average length of a constitution, an endurerance is 18 years. you can say, look, our first constitution lasted six years. our second constitution in a very real way lasted only to 1861 when we had the bloodiest civil war in the west up to that

time, and in part because of the 1787 constitution, not in spite of it, but because of the it, the various compromises with slavery, the constitution is radically transformed or at least it was attempted to be radically transformed by the so-called reconstruction amendments, but in some ways what was being reconstructed ideally was not only the defeated south, but also a constitution that had proved to be unfortunate to say the least with regard to the ability to face first the problem of slavery, and them secondly, imaginatively, to try to face the problems of integrating the former slave population into the body, the full body of american

citizens, and, of course, that had been the great issue since 1868, and it lives with us today, and there is still an issue to what extent the constitution might not need additional reformation or reconstruction in order to achieve that aspect of our national promise that is set out most elegantly in the gettysberg address. >> "constitutional faith" is the name of the book, and sanford levinson is a professor here at the university of texas. what do you teach? >> congressional law, emergency powers, and this particular semester, i'm visiting the harvard law school and teaching a course comparing the united states and american state

constitutions because i really do believe that it's just eye opening. sometimes the u.s. constitution gets it better, but other times i think we have something to learn from the state constitutions, and it's really, i think, telling that so few students, whether in grammar school or law school, are really educated about their state constitutions, and how they really do differ, and then you can get, i think, into very interesting conversations. at least, i have in the court of this term as to which provides the better model. do we -- on the one hand, i mentioned the judiciary a few moments ago, but on the one hand

at the national level judges serve full life tenure. that is they can serve as long as they want so that justice stephens retired two years ago now at the age of 90 after serving 34 years. if you look at the american states, not only do most of them legislate judges, but they, with two exceptions, they all have limits on how long they can serve, usually 70 years old, and my own view, actually, i'm with rick perry on this one who calls for putting limits on the number of years you can be on the u.s. supreme court. i do not think you have to be politically conservative in order to believe that makes a great deal of sense. my own preference would be single 18-year terms, but i think it's just kind of crazy to

have the system of life ten year that we have, and it's illuminating that the only two state that is have life ten year are rhode island and new hampshire, which are old states, but all the other states have decided that they need judiciaries. they like judges. you know, more or less, but there is a time for them toy5 g. started, we're here in austin because of the texas book festival, and you mentioned that next year, you, your wife, and your daughter all have new books coming out. what are those? >> yes, so glad you asked. my is a book by the oxford university press called "framed: america's 51 constitutions in the crisis of governance." my daughter, from austin

originally, teaches the harvard graduate school of education, and she has the book published by the harvard university press called "no citizen left behind." it is very much about civic education and the extent to which we do or do not empower children to imagine themselves as active citizens when they grow up, and my wife has a wonderful book written for basically, i think, 9-15-year-olds on the children's march in birmingham, alabama in 1963 called we got a job, and it -- it's focusing on the four african-americans in birmingham