Peaceful Political Revolution in America

S3 E 2 Constitution-Making in America with Sanford Levinson

• John Mulkins • Season 3 • Episode 2

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Welcome back to another episode of the Peaceful Political Revolution in America podcast.

Today, I will be talking with Sanford Levinson. Levinson is the W. St John Garwood and W St. John Garwood, Jr. Centennial Chair in Law. He teaches Law at both Harvard and the University of Texas Law School in Austin. Sanford is the author of over 450 articles and book reviews, and seven books, including Our Undemocratic Constitution, Framed: America’s 51 Constitutions and the Crisis of Governance, and Democracy and Dysfunction. Sanford is an early proponent of replacing our Constitution with a more democratic one, and for several good reasons; he knows more about our outdated and increasingly dangerous Constitution than almost anyone in America. I first interviewed Sanford in May of 2022, at which time he offered to come back to talk about his experience with the Democracy Journal project to draft a new model constitution for the United States. 


Levinson chaired the project, calling upon several prominent legal scholars to contribute to the contents and style of this ambitious document. My hope is that this conversation might shed some light on the process and pitfalls of constitution-making in America, as we uncover some of the challenges even the best of planners have encountered. You may not know that in 2020, the National Constitution Center had also commissioned the drafting of three new models, each reflecting the values and goals of three very different worldviews. Specifically, these models were designed to reflect a Progressive, Libertarian, and Conservative worldview.  None of these models got much attention. In Sandford's own words, they just fell flat. Apparently, the American public had no interest, and the media graciously obliged by ignoring the whole thing. Was it the process, the results, or American hubris that led to the failure to engage the American psyche in the deliberations, or was there a deeper, and even more concerning problem? 

I began our conversation by asking Sanford why no one had simply proposed to draft a more democratic model. 

Outro

Persuading the people that a convention is thinkable should be easy in a democracy. After all, that's what democracies are based on. I can think of a lot of things that are more unthinkable than a convention, like what our world will look like in a post-3-degree world. Tune in next time for a heated discussion about the failure of government to confront the Climate Emergency, with Dr Peter Carter, climate scientist and founder of the Climate Emergency Institute. This conversation is about to heat up!


SPEAKER_00:

Welcome back to another episode of the Peaceful Political Revolution in America podcast. Today I will be talking with Sanford Levinson. Levinson is the W. St. John Garwood and W. St. John Garwood Jr. Sentinel Chair in Law. He teaches law at both Harvard and the University of Texas Law School in Austin. Sanford is the author of over 450 articles and book reviews, and seven books, including Our Undemocratic Constitution, framed America's 51 constitutions and the crisis of governance and democracy and dysfunction. Sanford is an early proponent of replacing our constitution with a more democratic one, and for several good reasons. He knows more about our outdated and increasingly dangerous constitution than almost anyone in America. I first interviewed Sanford in May of 2022, at which time he offered to come back to talk about his experience with the Democracy Journal project to draft a new model constitution for the United States of America. Levinson chaired the project, calling upon several prominent legal scholars to contribute to the content and style of this ambitious project. My hope is that this conversation might shed some light on the process and pitfalls of constitution making in America as we uncover some of the challenges even the best planners have encountered. You may not know that in 2020, the National Constitution Center also commissioned the drafting of three new models, each reflecting the values and goals of three very different worldviews. Specifically, these models were designed to reflect a progressive, libertarian, and conservative worldview. None of these models got much attention. In Stamford's own words, they just fell flat. Apparently, the American public had no interest, and the media graciously obliged by ignoring the whole thing. Was it the process, the result, or American hubris that led to the failure to engage the American psyche in these deliberations? Or was there a deeper and even more concerning problem? I began our conversation by asking Stanford why no one had simply proposed to draft a more democratic constitution.

SPEAKER_02:

I think the basic problem is that a lot of people are quite willing to concede that there are problems with the Constitution. You don't find many people these days who say, oh yeah, we have a perfect constitution. It doesn't need any change at all. The problem is that it's next to impossible to envision change happening because Article V makes it difficult to the point of practical possibility. It's also the case that I believe very strongly that the kind of change we need would effectively come about only with a new convention. And I can simply tell you, I can tell you two things. First of all, there are very few people who agree with me, including my family, my professional colleagues, and the like. Most people are afraid of a convention. I'm discovering that a new this semester, when I'm teaching two courses at the Harvard Law School that relate to this topic. And people are just the students are just skittish about the idea of a convention. But the second point I want to make that also relates to what you said is that at least on the left, there is literally nobody of prominence who's willing to say that, you know, first of all, the constitution has its problems. And secondly, the best way to address them would be through a new national convention. Um, you do have some people on the right wing, though, even there, what's interesting is that they proceed primarily through stealth. You don't have any prominent right wing politician who's going around the country trying to mobilize support publicly for a constitutional convention. What you do find is that they're going around the country trying to mobilize support among state legislators to petition, as Article V allows, to petition for a convention. But that's very different from going out on the hustings. You know, I I have for years indicated my really deep unhappiness with Bertie Sanders, whose politics at one level I probably share much more often than not. But my disappointment with Sanders is that he ran two presidential campaigns in which he described himself, this wasn't the description of his enemies, this was his own description, that he was a revolutionary, that he wanted to attack a rigged system. But never once, literally, never once, did he suggest that the rigging began in 1787, and that uh even if by some miracle he became president, he could not wave a magic wand and bring about Medicare for All, or any of most of the other programs that he was supporting. And you know, to be frank, uh I think that most of the young people who flocked around Sanders really don't know much about American government. And uh Sanders could have used his campaign as a massive effort in civic education uh precisely to promote the kind of conversation, national conversation, that you suggested at the very outset. That is, a we've got problems with the Constitution, B, the only effective way to meet them is through a convention, silence. And that's true for you know all of the you know democratic so-called leadership, including those who are viewed as progressive or viewed at least as somewhat outside the box. Um and I don't know how to break that. Um, you know, I I have often said that getting from zero to one is the hardest single problem. That if you get one person of prominence, or for that matter, one pundit, then others will respond, even negatively, but it then starts generating a conversation. Um, if somebody is a sufficient stature, they're invited to the Sunday talk shows or they'll write op-eds. And you know, slowly but surely, or even maybe even quickly, with a tea party, which began with a rant on national television, it nonetheless provoked a response. And so, you know, I've become really quite depressed with regard to the unwillingness of people who will say that yes, we're in trouble. A number of them even use the language of constitutional crisis. But at the end of the day, they really exhibit very little imagination. The best they can do is suggest litigation and you know, the hope that somehow or other the courts will save us. But I think that's a mistaken hope, not only because the Supreme Court has been captured by conservatives, but also, quite frankly, even if it were quote, our court, unquote, if if Ruth Ginsburg had not been a raving egomaniac and had retired in 2013 and had allowed Barack Obama to replace her, or if Hillary Clinton had run a better campaign in 2016, so there would be a so-called liberal Supreme Court. The fact is the Supreme Court cannot draft a program to confront global warming. It can't draft a Medicare for all program. It can't really um address a genuine problem with immigration and you know draft a complex sort of deal that traditionally is what we expect Congress could do. And one of the great tragedies of contemporary politics is that the Senate reached a deal in 2012, I think it was. Bipartisan deal. Mario uh Marco Rubio signed on to it, Democrats signed on to it. It never came to a vote in the House because John Boehner was following the truly pernicious so-called hastard rule that he wouldn't bring anything to the floor that didn't have the support of majority Republicans. The bill would have passed overnight with a coalition of mainly Democrats and some Republicans, and we would not be in the particular kind of crisis we are today. Supreme Court can't be blamed for that, and it couldn't resolve it.

SPEAKER_01:

Let's go back to the Democracy Journal project. Because you're saying you brought together several progressive scholars. Am I correct about that?

SPEAKER_02:

Yeah, there were I would say twenty five to thirty-five people, almost all of them academics, with one exception, a friend of mine from Austin, Texas, who is in fact a community organizer. Um and thanks to COVID and Zoom, we ended up spending a lot of time genuine conversation and debate, much more than would have been the case without COVID, frankly. Um and we drafted a constitution that Michael Tomaski, who is editor of Democracy and also of the New Republic, turned over the summer 2021 issue to our project. And I'm extraordinarily grateful. Uh he reprinted the Constitution, I had a 5,000-word introduction, there were some dissents, etc. And it was extraordinarily illuminating. One of the things that was illuminating is that progressives don't necessarily agree with one another, so that we had genuine debates and genuine votes. And you know, I'm very proud to claim a certain kind of leadership role in you know, asking the people, organizing it, working with Michael. But it's not the Levinson Constitution. There are things I wanted that were turned down.

SPEAKER_01:

Yeah, what is curious to me is that the progressive community did not latch on to this. And you had a number of fairly prominent progressive Americans involved in that project, but why do you think that it more or less fell flat that the progressive community did not approach that?

SPEAKER_02:

That's a great, great question, and I wish I had a good answer. I cannot at all speak for Michael Tomasky, but he did give us the whole issue, and he gave it to us at a time when Democ when the journal Democracy had kind of taken over from the you know National Review as the favorite magazine of the White House and of other Washington insiders. Biden ran a moderately progressive campaign. The perception, especially in 2020, 2021, was that you know he he would be a transitional president, but the transition was would include you know a progressive understanding of what the country needed. And so I'm quite certain that he was optimistic that it would be read by Washington insiders and others, but also by you know people living within the think tank community in Washington, as well as outside of Washington, and it didn't happen. And I've never spoken with him on you know his assessment of why it didn't happen.

SPEAKER_01:

Um it just didn't it fell flat. So my my thought is that you know we had the National Constitution Center uh their project, right? They had a progressive and a conservative and a libertarian uh models created. And when I first saw that, my immediate response was why aren't they just creating a more democratic model?

SPEAKER_02:

You know, I think the problem with that is that from the very beginning, you know, 1787, if you want to treat that as the beginning, there has always been a very basic conflict about the meaning of democracy and the commitment to democracy. So my wife and I have written a book together that was literally just published in its third edition called Fault Lines in the Constitution. And one of the people we quote is Elbridge Gary, who is best known for having given his name to Garrymandering. Um, but he was a delegate in Philadelphia and he said, our problem is too much democracy. And that was a widely shared view. Um and you know, we do have, in many ways, a fundamentally undemocratic or anti-democratic constitution by design. That's what Bernie could have pointed out. But those debates remain so that people who call themselves conservatives and libertarians are critics of what they would call radical democracy, or what they always put forth is the possibility of tyranny of the majority. And the fact is that all Americans, wherever they are in the political spectrum, all Americans beginning in the third grade are educated into the dangers of majority tyranny. So that political liberals also want guardrails against too much little d democracy. And so, you know, one of, I as I said a few moments ago, one of the lessons I learned from this incredibly valuable experience that I had in working with, you know, largely my friends from the legal academic community, is that we really did disagree on a lot of issues, even though all of us defined ourselves as somewhere on the left. That wasn't enough to lead to true consensus. You know, it could lead to agreement, but where we had votes and people who lost were graceful in accepting the defeat. But I think what's valuable about the National Constitution Center project is precisely that it illustrates some of the real differences within the American community at large. The people who drafted the so-called conservative constitution speak for millions of Americans. The people who drafted the libertarian constitution also, I mean, I've said to a number of people that the big winners from the present political moment are libertarians. Because you look at what particularly the Trump administration is doing, and what one thinks of is governmental overreach. And so one natural response is to say, well, we really do have to weaken the powers of government, period, and return government, return little g government to the people who will make their own decisions rather than have the decisions made for them by big government. Now, the fact is that political progressives like myself generally like big government. We like the New Deal, we like the prospect of Congress passing meaningful legislation on climate change and this, that, and the other. But at this particular moment, big government is the enemy, or it's perceived as the enemy. Um and so any national conversation that would have any prospect of success has to be, I don't want to say nonpartisan, which is a term that I really detest, but it has to figure out a way of bringing people who really disagree with one another into some kind of conversation to see what we might be able to agree on, because the one thing that I think is true wherever you are on the political spectrum these days is that you really don't trust the national government. Congress remains 15 to 20 on a very good day, maybe 25 percent approval. The Supreme Court is under majority approval for the first time in our history, and the president, again, whether it's Democrat or Republican, presidents you tend to be under 50 percent. And so if you ask people, you know, do you really trust the government to look out for you? The answer generally is no, wherever you are on the political spectrum.

SPEAKER_01:

Isn't that interesting? Because we all know that we have this kind of a form of minority rule, I call it. Like you say, the the tyranny of the majority is has kind of forced us all to accept minority rule because somehow uh a smaller group of people, maybe they're experts, uh, maybe they have more experience or more insight than the rest of us or something, that they're gonna have, they're gonna make better decisions than the majority of Americans. I really feel this is uh this is the crux of the problem that we we have in our genes, in our epigenetic makeup, we have inherited this perspective that somehow the majority is dangerous. You have Russ Feingold out there with a book, um The Constitution in Jeopardy, right? And I went down to Stanford a few years ago to hear him talk about that. And there wasn't a I there wasn't a peep about creating a constitution that would actually give the majority of Americans the power to create policies and programs, yet we all they all stood there knowing that the constitution, the preamble began with we the people, and that we are supposed to have a government of by and for the people. I don't think that meant of by and for the minority. And yet I went out after the uh lecture into the courtyard at Stanford and I met uh Michael McConnell, who was the uh Constitutional Law Center director. And I went up to him and I said, uh, you know, I asked him, why aren't we talking about creating a more democratic constitution that will actually represent the majority? And his response was actually stunning. I he he just said, Well, I wouldn't want that. I don't want the mob to rule. I I wouldn't trust the majority to run my life. And and you know, when it comes to regulations and all this stuff, people are always up in arms about the government getting into their business or or preventing them from doing what they want to do with their land and property or whatever. It's a tragedy of our American experiment in democracy that we would actually fall prey to this kind of propaganda that the minority are smarter than the rest of us. And and I'll finish by saying I think this is fundamentally undermining our society. If we don't trust the majority of Americans to make good decisions, it's as if when we're walking around our neighborhood, we're suspicious of each other. We don't trust our neighbors to make good decisions. So those are the that's that's the people.

SPEAKER_02:

No, I think that's absolutely right. I mean, as somebody who spends a modest amount of time trying to defend the idea of a national constitutional convention, and the immediate response is don't I fear or run away? And the answer is no, I don't. But what I point out is that the the degree of their suspicion of what might happen at a convention, the degree of their mistrust of you know the abstract delegates who might be there, logically entails that you don't really respect elections either, because why would you you know accept the result of an election if you didn't at some level trust the voters? Now the problem is Donald Trump, that I presume that neither of us really has much trust in the people who voted for Donald Trump. And that's why I say that libertarians are the big winners, because you know what libertarianism preaches is very small government. Uh, conservatives are more complicated. They want small government in some areas and are very happy to have very intrusive government in others. And so Michael McConnell, who's a friend of mine, was one of the people who wrote the conservative constitution for the National Constitution Center. So it's not surprising that he said what he did to you, because he is an unabashedly proud conservative who, by the same token, is appalled by much of what he sees in Donald Trump, is working on some of the litigation trying to rein Trump in. But the, as I say, this debate about, first of all, the degree of trust you got in your fellow citizens, and then the degree of power you're willing to give them, even if you do basically trust them. So, I mean, the whole argument for a Bill of Rights is that you want to say that there are some things majority just can't do, period. And that involves a certain mistrust of political majorities. Um the whole emphasis on checks and balances, separation of powers, reflects a fear of political majorities. And it is hardwired into all of us as Americans. And I think it's gone way too far, because I think you are absolutely right that for majority tyranny we've substituted minority tyranny. But if we got the Constitutional Convention that I very much wish we would get, we would have very serious debates about how much power really were willing to place in 51% of the voters. Exactly, 100%.

SPEAKER_01:

And I would say actually majoritarian democracies are not as efficient as a consensus democracy. So, you know, as you, I agree, we need to have proportional representation and create a multi-party system. Yeah.

SPEAKER_02:

For better and for worse. Yeah. Um and um and at this particular moment, at least those who put themselves forth as political leaders don't seem very interested in compromise.

SPEAKER_01:

I just worry about the You know, the 4951 split, it leaves a lot of people disenfranchised and dissatisfied. And I I feel like that's part of the problem with our political system.

SPEAKER_02:

You are also correct that it's absolutely bizarre that a country as large as our own operates with only two political parties.

SPEAKER_01:

Isn't it? It's amazing that we've gotten away with it so far. But after World War II, you know, because I think we had won the war, Americans felt completely satisfied, if not justified, to keep this 18th-century political system hanging around their neck. Right.

SPEAKER_02:

I mean, the war was billed as a war of the democracies against the dictatorships, and the democracies, including the Soviet Union, won. And there was also just a lot of self-satisfaction about the Constitution. I'm old enough to remember the freedom train that went all over the United States, with I think either the original of the Bill of Rights, you know, that is the original paper, or something like it, maybe a replica of the Liberty Bell. There's a very, very good book called I think the Constitutional Bind or the Bind of the Constitution by Aziz Rana, who argues, and both of us agree, that it is the undue veneration of the Constitution is largely a product of the two world wars. It began, you know, the war to make the world safe for democracy, that presumed that we were a democracy, which of course we certainly weren't in during the time of World War I. Women still couldn't vote, generally speaking, and blacks in the South were certainly prevented from voting. But we built ourselves a democracy and we entered the war to make the world safer democracy. And then came the Second World War, which was much more dramatic in many ways. And so we came out of that, and to you know, to our credit, we did get a civil rights movement in part based on the premise that look, we can't fight a war against racism without addressing the racism within the United States itself. So we have the Voting Rights Act and stuff like that. But we don't get any serious discussion of the degree to which the Constitution was beneficial, detrimental, or just irrelevant. That, you know, my own view is that most of the time the Constitution is probably irrelevant. But some part of the time it can be beneficial, and other parts of the time it can be disastrous. And my own view is that at the present moment, we're much more in this last phase where we really should address the extent to which the Constitution itself is a problem. And then that comes back to what I think both of us agree on: that there's no significant national discussion of this taking place, except ironically enough, in some circles of the right wing, which where you do have some people of modest prominence, like Rick Santorum, who had been senator from Pennsylvania and then actually ran for president completely unsuccessfully. But he is the leader of a movement calling for a constitutional convention. Greg Abbott, the governor of Texas, advocated a constitutional convention in 2016. But the response of the so-called progressive community was very much like Russ Feingold, whom I know somewhat and I like him personally, but common cause that let's circle the wagons, and it should be unthinkable to have a constitutional convention. And I want to make it thinkable.

SPEAKER_01:

And you want to make it I do, and I I think a lot of this does come down to how we frame this argument. You know, there's a lot of pushback I see in my social media posts where Americans say to me that democracy is actually evil, that we're not a democracy, we're a republic, that they don't want the government in their business. And and I think the fundamental question that we have to ask ourselves in light of the rise of fascism in America today is whether or not we are a democracy. I mean, I don't think we have clarity on that one fundamental question anymore.

SPEAKER_02:

One of my unfavorite sentences is Winston Churchill, democracy is the worst form of government except for all the others. And the reason I really dislike it is because it assumes what we know, that we know what a democracy is. So if he wants to say that any form of democracy is better than Stalinist communism or Hitlerian fascism, the answer is yes. On the other hand, if you start saying, well, look, here are literally 40 countries around the world that are described as quote, democratic, unquote, but they're really different in important ways. We can talk about Sweden, we can talk about the UK, we can talk about Spain, we can talk about Australia, et cetera. And so let's talk about some of these differences, all of which count as democracy. And why might we, that is the two of us, prefer Danish or Scandinavian democracy to other forms of democracy that are on offer? So, you know, the Churchill quote simply leads to a certain kind of intellectual flabbiness. Because we say, well, look, the alternative to this mysterious notion called democracy is fascism, and surely you don't support that. And the answer is yes, we don't support that. And then it assumes, well, the conversation is over because all of us now support democracy is against fascism, but we've not had a serious conversation about the extent, say, to which the American form of democracy, in fact, has so many flaws in it that it is generating a very scary form of authoritarianism as well as aspects of fascism. You know, how can that be? It's not Nazi Germany, but it certainly does have some analogues that we didn't think were possible.

SPEAKER_01:

I would say the minority has become more powerful over time in America. You know, I mean we went through the Gilded Age and the Robber Barons and all of that, but now uh in light of what's happening with the digital age and artificial intelligence, the wealth disparity is becoming more and more extreme, increasingly dangerous, and they are using that power to essentially control the government for their benefit.

SPEAKER_02:

That was the appeal of Sanders' you know campaign about a rigged system. Um but you know Donald Trump is a talented demagogue. He recognized that there was a whole lot of popular support for cracking down on immigration. You know, I regret that. But what he has done is to amass political power to cut taxes for the rich and to increase the problem of inequality, while at the same time developing a genuine sort of populist politics that has generated tremendous mass support. You know, I think that has to be recognized simply as a political reality, that he could not have done it had he run his campaign simply on a platform of cutting taxes for the rich.

SPEAKER_01:

Is that because there has basically been a vacuum? Uh he's filling the void. There was very poor representation in Congress. Our legislature was very ineffective in getting anything done. I would say for decades it hasn't really been responsive to the vast majority of people in this country. And I I feel like the political insiders on the right decided that this system was no longer viable. They needed to install a strongman to come into the arena and take command of the situation and create the world that they wanted because the legislature was just ultimately ineffective.

SPEAKER_02:

Where I would disagree with you, and I don't know whether I'm happy to disagree with you or really depressed, is that Donald Trump is not the creation of political insiders. You know, you could even say, like Adolf Hitler, he is a marginal figure who comes down the escalator, is treated basically as a clown. In the 2016 primaries, he did not get a majority of the Republican popular vote. The problem is that the 15 other candidates could never agree on who would fall on the sword and coalesce around somebody who could have beaten Trump. Trump notably doesn't get even a plurality of the popular vote in 2016. So his skill is in mobilizing mass politics. Well, it's two things. Mitt Romney was the insider candidate. You know, he's Bane Capital. Trump is a fraudster who is not respected by people with real money. The banks won't lend to him. He'll stiff all the creditors. You know, his success, the German right who supported Hitler, thought that they could control him. And that you know, he would be a pawn basically for the interests of German industrialists or whatever. It turns out that Hitler was not controllable in that way or in any other way. And so, you know, you look at Trump's tax policy, which one assumes the business class loves, but they don't love his tariff policy. They don't love his immigration policy. Um, it's not clear that they love his very erratic policies on international affairs, but he has amassed legally this remarkable degree of personal power that he's using to the utmost. Congressional Republicans are just rolling over and playing dead. And the Supreme Court seems to be of no real help. But I do think it's a mistake to view Donald Trump as simply, you know, kind of a pawn of the business community. That, you know, I'm sure if you ask them privately their degree of support or trust in Donald Trump, it would not be that high. But they feel stuck with him. And in that case, in that sense, one has to recognize his abilities as a demagogue. And the Constitution was supposed to protect us against demagogues. In Federalist 68, Alexander Hamilton says the greatness of the Electoral College is that it will protect us against the demagogue. Clearly, that's false. The Electoral College lost whatever its original purpose might have been no later than about 1806, 1804, 1808. Um, and so we are subject to demagogic rule. And it's all the worst, as you pointed out, because of social media and the law. I mean, when we were growing up, there were the three networks, there were the handful of major newspapers, but as well as you know, flourishing local newspapers. Now that's gone. And all of that is a very, very real problem.

SPEAKER_01:

Dean Chemrinsky at UC Berkeley has a new book out, you I'm sure you're aware of, uh No Democracy Lasts Forever. And you know, his argument is that over time the Constitution is becoming increasingly dangerous. And it's now the threat to democracy because basically it's it's reinforcing stronger and stronger minority rule over time. I think he's absolutely right.

SPEAKER_02:

But again, I think one of the things we, that is, people like you and me, have to explain, just as is true of the Tamaski, what I call the Tomaski Project, is why has Tremorinsky's book basically fallen flat? That is, it got a few reviews, and they were respectful reviews, but it did not trigger, you know, he didn't cross the barrier between zero and one, so that no prominent pundit said, you know, Dean of the Berkeley Law School calls for a constitutional convention, says the constitution is fundamentally broken. You know, I've been saying that for a long time, but I'm not the dean of a major law school. And so, you know, I can offer that as a partial explanation. One might have thought that Erwin could, you know, light that fire, but it just didn't happen.

SPEAKER_01:

I what do you think it is? I mean, I know that there is a strong patriotic element to uh uh respecting and loving our constitution. It's it's as if we if we didn't love the constitution, we we don't deserve to be Americans. And I get this a lot again in my social media posts. The responses indicate that there is this um blind faith in a document that people really don't understand, or if they do, apparently they have a very different uh maybe they're just more libertarian.

SPEAKER_02:

I mean, but they just No, again, this is a very, very important question. My first book was called Constitutional Faith, and it was all about this. And and I can also simply report the response of most of my students at the Harvard Law School that I'm teaching this term, that A, they are fearful of a so-called runaway convention, and B, a number of them say, look, the only thing that unites us as Americans is support of the Constitution. We are so uh diverse a society that you know we're just not sufficiently homogeneous to be defined as you know Americans, except that we're willing to uh uh celebrate July 4th and then Constitution Day on September 17th. It's very difficult to break that, um, because it if that is your view, then it is kind of terrifying. What do you substitute for the constitution? There are times, I'll have to say, when I really do think the country is too large and too diverse to be governed effectively by any government. This goes back to Montesquieu in the 18th century that what he called a republic required a relatively small population and a relatively homogeneous population. Um, that's not the United States, that's not most countries in the world today. And so, you know, how do you achieve a requisite degree of stable consensus where the losers are willing to be good sports, in part because they think they might win the next election, and then you know, we'll get our policies. Um I I don't have a good answer for that.

SPEAKER_01:

If we do nothing, I think uh the wealth inequality is going to become so extreme that we may end up with greater equality, that being most of us will be very poor and without jobs.

SPEAKER_02:

I think that's absolutely right. I mean, that that is why so much of this is just very depressing.

SPEAKER_01:

What can we do to build a movement which will empower Americans to actually control their constitutions of government or to actually create a government that represents the vast majority of Americans? That's that's the million-dollar question. Do we not need to bring together in a common space uh all the people who are interested in this conversation?

SPEAKER_02:

I mean, the answer is yes, we do, but that obviously requires a lot of resources, and it's not clear, you know, who is who would be willing. I mean, just the the banality of travel. As I said before, what allowed the Tomaski project to work was COVID and Zoom.

SPEAKER_01:

That's great. I've been saying we're we are individuals are so much more powerful now than they were in 1787 because of Zoom and there's no doubt.

SPEAKER_02:

But ultimately, for this to work, it's also necessary to meet personally, to you know have discussions with one another, but then also afterward to go out for coffee or dinner, somebody whom you somewhat disagree with rather than completely disagree with. Because if it's only somewhat, then you can expect the dinner to say, okay, you know, you want um you want A, I want B, but neither of us wants F. But tell me why you know you're so suspicious of what I want. And let me tell you why, you know, I disagree with you on what you want, and that you really can't do on Zoom. Um that the value of conferences happens, you know, during breaks and during dinners. Yeah. The discussion itself can take place wonderfully on Zoom. But I'm you know, I'm not kidding when I say that just the logistics of figuring out where people could come together, who's gonna pay for their plane tickets or train tickets, their meals, their child care, and then ultimately how you reach out beyond a relatively small group of people you're already associating with, you know, to broaden it. And this also also ultimately is going to require persuading what I'm calling the political entrepreneur to say that, you know, here are followers looking for a leader, and I can be that leader by showing up, and then also by using my own political skills. Here's how you run for office, here's how you get access to other people who are willing to donate, etc. But you know, I have no demonstrable skills in that, but it is why generally I'm not very optimistic because most people are, as you said before, are just so suspicious of one another. The idea of a convention strikes horror. And that means that you have all sorts of psychological pressures to say that what we've got isn't perfect, but it's good enough.

SPEAKER_01:

I'm a pretty simple person in a lot of respects. I feel like this is a pretty, or it should be, a pretty easy conversation for most Americans. That is, let's let's think of it in terms of three questions. Are we a democracy or not? That would be the first question to settle. And if we are a democracy, why are we not the best? That would be the second question on my list. And the third is simply if we're not the best, how can we be the best?

SPEAKER_02:

But it's very important that you're a Californian, because one of the things that I constantly bring up in the courses I teach is that if you really do support rule by the people, then you ought to support the possibility of direct democracy, the initiative referendum. And I can simply tell you that most people I've talked to, maybe because I'm on the East Coast, don't, that the initiative referendum is seen these days as more likely to be the equivalent of mob rule than of little D democracy. California instituted the initial referendum at the beginning of the 20th century because of demonstrable failures in representative government. And so the initial referendum was a safety valve, a way of going around the limits of representation. So if at the national level, if we were like California at the national level, then you and I would be standing on street corners trying to get petitions for initiatives and referenda to do end runs around Congress. Can't do that because the Constitution, as drafted, was designed to insulate the process of government from any direct rule by the people. The only thing we can do is select representatives. So even if we had a much, much better electoral system than we do, one that had proportional representation, we would still be faced with problems that you see all over the world in parliamentary systems of dissatisfaction with the way government operates. I mean, if there are too many political parties, then it's very unlikely you will have effective governance. You know, some of the most interesting countries, like Switzerland, really do rely quite a bit on referenda. Um New Zealand does, Ireland. And but you know, that is just not part of the conversation either. And it's an unfortunate truth that California is much more of a poster child for a direction we shouldn't go than an inspiration.

SPEAKER_01:

So how do we build a movement towards a convention? I think we agree we need to have a new convention in America.

SPEAKER_02:

It's a very naive answer, but right now the best answer I can give is to engage in one-on-one conversations with people who have a roughly compatible politics with your own who really object to the idea of a new convention. Find out what their objections are and try to persuade them that they really don't need to have the worries they do. Because I as I say, I really have found, particularly this semester, um, and you know, as wildly unrepresentative as students at the Harvard Law School might be, the problem is not persuading people that there is a need for constitutional reform. The problem is persuading them that a convention is thinkable.

SPEAKER_00:

Persuading the people that a convention is thinkable should be easy in a democracy. After all, that's what democracies are based on. I can think of a lot of things that are more unthinkable than a convention, like what our society will be like in a post-three-degree world. Tune in next time for a discussion about the failure of government to confront the climate emergency with Dr. Peter Carter, climate scientist and founder of the Climate Emergency Institute. This conversation is about to heat up.