wounding and painful experiences in this country. because the hopes and dreams and aspirations, virtues, institutions, values, principles that created the conditions that put me here today are being sabotaged and eroded by those who have good intentions but often do not think through the con scweptions of public policy -- consequences of public policy decisions because they have different views on the human person and human dignity than those who actually structured our government in the first place. >> you can watch this and other programs online at booktv.org. >> next, professor sanford levinson sat down with booktv to talk about his book "constitutional faith" in which he argues that the u.s. constitution is worship today a degree that is unhealthy for our democracy. this interview is part of booktv's column series.

this week we're at the university of texas at austin. >> and you're watching booktv on c-span2. 48 hours of nonfiction books every weekend. and we are on the 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 others, "constitutional faith," is the name of the book that we'll be talking with him about. professor levinson, 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 veneration directed at the united states' constitution. there is no other country in the

world i'm aware of that has such veneration of it national constitution. and it's also interesting to compare the united states' constitution with the 50 state constitutions. um, that most americans really aren't aware that they live under a state constitution as well as the national constitution, and except maybe in massachusetts because john adams drafted the 1780 massachusetts constitution, and it is, in fact, the oldest constitution in the united states. but otherwise there's no sense of veneration or faith in state constitutions. most states have had around three constitutions. georgia and louisiana have had 21 constitutions between the two of them. and there's a much more

instrumental what has the constitution done for us lately view at the states. they're 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 veneration 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 ratification process since 1791, there have been 17 amendments. and that's extraordinarily few. this leads to all sorts of consequences 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 there's been a lot of what lawyers have come to call informal amendment 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. um, and what in some of the american states or in other countries might actually be the subject of formal amendment in this country takes place in inform always in part, as i say, because of the mixture that the constitution is extraordinarily difficult to amend and anybody

who suggests amendment is going to run head on into newspaper editorials and 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, popular dialogue that addressed the need for more amendment. one of the things i find very interesting about the presidential race that's already occurring particularly among the republicans is that there is talk of constitutional amendment even though these candidates fall over themselves in competing with which loves the constitution more than the other. but this doesn't stop them from saying that even though they love it, they would like to see certain things change so that rick perry, the governor of texas, has proposed repealing

the 17th amendment -- >> which is? >> which allows for popular election of senates. 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 goodwill of state legislators, and this meant that they would have to be concerned with protecting the prerogatives of state government, things like that. once senators are popularly elected, they don't need to worry about state government. what they worry about is bringing home the bacon. and so from the my perspective the modern senate is nothing more than an affirmative action

program for the residents of small states. and i think that of all of the affirmative action programs in the country, this is probably the least defensible. um, but, um, yes. i mean, to go back to your initial question, i think the americans have at times the most ridiculous veneration for the constitution, far more so than the framers themselves who recognized that they were -- and i mean this respectfully, not as founder bashing -- that they were making it up as they go along because there was no precedent for the united states constitution. they were in this very, very hot philadelphia summer trying to figure out kind of 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 v

provides for the possibility of one, and i think they'd be astonished at how few amendments there have been. >> well, professor levinson, 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 prohibits progress, but i think it stands in the way in that the, the framers in 1787 were 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 was 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. is they put in all -- so they put in all sorts of veto points. we have a bicameral system which means that for any bill to become a law, it has to pass in identical form in both the house and the senate. that's not written in stone with a very idea of bicameralism. there are bicameral systems around the world where you can break deadlocks, where the equivalent of the house of representatives could break deadlock with the supermajority vote or something like that. we don't have that system. but besides the con scweptions

of bicameralism -- and part of that, of course, is a wildly mall apportioned senate. so it is one house that is roughly representative of the people, the other house is grotesquely unrepresentative of the majority of the united states. because of 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 agricultural policy, you have to understand the undo influence that the upper midwest has in the senate. that if the house got to making a churl policy, we'd -- 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 tricammal system because of the presidential veto. and it's not simply the ability of 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 make it, will lead members of congress to pull back. sometimes really not to introduce legislation at all, sometimes to make compromises that weaken it. now, what this does, you said does the constitution stand in

the way of progress. i would say, yes, but you could also say people who like the constitution more than i do would say, well, the constitution also stands in the way of, um, a falling back or of regressive legislation. the real point is that the constitution makes it very, very 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 impossible to

pass. i like the idea of a strong medical care bill. my complaint about the one that passed is that it isn't strong enough. i would have liked a single-payer system, and -- >> how does that fit into the constitution? is. >> 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 characterlogical 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 landrieu and ben nelson in order to get to the 60th vote because not only do you need 50 votes in the senate, the modern senate uses a

filibuster. but let's say i were 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 gain the senate. so one would expect them -- h.r. 1 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 would say, look, we've had this national debate, we've 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 of time thinking of issues that if they've ever been taught it might well have been when they were in the seventh grade. because what i'm really talking about is what used to be the subject matter of very old-fashioned civics courses; how does a bill become a law, how many votes does it take to overturn a presidential veto, how do we amend the constitution? most people find these subjects extraordinarily boring. they want to talk about rights. they want to talk about first amendment, what can you say without getting thrown in jail, affirmative action, guns. ..

>> 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 was written by alexander

hamilton where he said, you know, altogether plausibly that if we became a more democratic system given that the majority of the country is have nots, they would use their political power to try to take from the haves. and that the great thing about the supreme court is that it would try the protect the property of the haves against redistributed 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 -- not all, but a number of the framers were concerned about was 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's most strongly protected by our or structural constitution is the residents of small states because they have this disproportionate 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 who is concerned about a particular racial 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 mark. but then you look at wyoming where the vote of each wyomingite is worth 70 times the vote of somebody from california, and that's not viewed as at all strange. ..

>> or to prohibit same-sex marriage, um, 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 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 to have 17th amendment -- 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 this is no reason in the world -- there is no reason in the world to have the senate picked by state legislatures. you really do want people, the electorate, 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. >> sanford levinson, in the new afterword to your book which you originally wrote in 1988, this is a 2011 afterword, you write one of its major points was that the founders were fully aware that they had written an imperfect document and expected it to be amended as americans learned the he is son of experience from live -- the lesson of experience from living under it. we have, alas, the trade that

most fundamental aspect of the founders' vision. instead, one can even find in a left-wing magazine an attack on tea party constitutionalism that concludes, quote, ordinary americans love the constitution at least as much as far-right idealogues. it's our constitution, too, it's time to take it back, end quote. and 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. >> um, yep, i wrote it, and i believe that. i don't want to say because i 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 liberty and the like? and there i would be much, much more critical. and apropos that quotation you read from the nation, it was an article written by a good friend of mine, i do have grudging respect for some of the members of the tea party because along

with what i do think is excessive veneration for the constitution, they're also able to connect the dots and to say if you want to reinvigorate a strong sense of states' rights, states' autonomy, state power, call it whatever you will, then 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 i -- 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 limits on government? if it needs to be said, i like the bill of rights, i like the 14th amendment. it's not, as i say, 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 almost 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 the -- to talk about. and kind of convey a sense to the students that things like to amend the constitution are dull and boring and not really worth talking about, and i think that's just a fundamental 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're right. and then you ask, well, why not? and for me part of the reason -- not all of the reason, but part of the reason is the set of structures that makes it systematically near impossible to respond adequately. >> sanford levinson, what about the magna carta system that the british have? does that work better to have, basically, an unseen, unwritten constitution? >> well, that's a very, very important question. i have come to believe that there are means by which 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 whole specter maybe they're going to move too quickly, maybe

they're going to be too abrupt, maybe they're going to pass bad legislation. but there is a sense of elections really counting. and it's certainly difficult to look at the united kingdom and say that they have had a noticeably worse system than we have based on whatever criteria you wish. one of the things that i advocate in the book that i published most recently, a book called "our undemocratic constitution" as i allude to in the afterword, is i would like to see a new constitutional convention. and my fantasy is that it would last two years and that the people at the convention -- and i assume it would be on c-span. i've already enlisted c-span to broadcast this as the ultimate reality television show.

and then you would do what james madison did to study very widely political systems -- nothing 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. the united states constitution, i've come to believe, was written and ratified 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 by 1846

the new york constitutional convention which is very influential on lots of other states has adopted the practice of electing judges. most judges in the united states are elected or are -- [inaudible] now, this is very controversial, a lot of people don't like this, but there are really interesting aspects, and there is 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 and referendum, the ability of people, basically, to go around the legislature. um, the united states constitution is committed exclusively to representative democracy. there is not an iota of direct democracy in the united states' constitution. forty-nine of the fifty 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 a couple of years ago the electorate in maine was able to vote down a same-sex marriage law that had passed the maine legislature and been signed by the governor. given my views i am very, very sorry that the maine electorate repealed that lawment that being -- law. that being said, i actually like a political system where an aroused electorate can respond to legislation passed by the legislature or the congress or signed by the governor or the president. i think that at the national

level we'd be better off if we had 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 the constitution is distinctly unlovable. and we should try to make it a more lovable. the constitution is not entitled to our unconditional love. maybe our children and our spouses are entitled to unconditional love, but not the constitution. >> and we are on the university of texas campus in austin, and we're talking with professor sanford levinson about one of his books, "constitutional faith." very quickly, professor, the cover of this book, it looks -- is this a take on the ten commandments here? is in the image that we're supposed to get? >> um -- >> or a stone tablet, a set in stone type thing?

>> well, there's certainly -- 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. um, i think you're right, i think it does evoke a bit the ten commandment, the written in stone aspect. but i think also if you wish you can see in that elements of the gravestone. so, i mean, constitutions have lifetimes. our first constitution in the united states, national constitution, the articles of confederation which lasted six years and it was decidedly an unromantically -- and unromantically junked by the framers in philadelphia because they thought that it was wildly

dysfunctional. they didn't use terms like dysfunctional, but that was their view of the articles. a colleague of mine here at the university of texas government department, zack elkins, is co-author of a book on the endurance of constitutions. and if you look all over the world, the average length of a constitution in endurance is 18 years. now, you can look at the american constitution experience in a variety of ways and say, look, our first constitution lasted six years. our second constitution in a very real way lasted only until 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, because of 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 that 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 then, 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 has 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 eloquently in the gettysburg address. >> constitutional faith is the name of the book, sanford levinson is a professor of government and law here at the university of texas, what do you teach? >> i teach constitutional law, emergency powers. oh, 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 to grasp the differences.

and sometimes might well believe that 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 in 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 course of this term as to which provides the better model. um, do we -- on the one hand, i mentioned the judiciary a few minutes ago. 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 justice stevens 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 elect 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. rick perry 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 1-year term -- 18-year terms. but i think it's just kind of crazy to have the system of life tenure that we have, and it's illuminating that the only two states that have life tenure are rhode island and new hampshire which are old states. um, 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 to go. >> and finally, when we -- before we got started we're down 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. >> yes. >> what are those? >> so glad you asked. [laughter] mine is a book published by oxford university press called "framed: america's 51 constitutions and the crisis of governance." my daughter, maiera from austin, originally, teaches the harvard graduate school of education, and she has a book published by the harvard university press called "no citizen left behind.

"um, and 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 to 14 or 15-year-olds on the children's march in birmingham, alabama, in 1963 called "we've got a job." and it, it focuses on four african-americans in birmingham then who took part or were part of this really monumental event because the older viewers may remember bull connor and the fire hoses. and what i suspect they