BOOK REVIEW by Bhanu Dhamija

Making a New American Constitution by George William Van Cleve; Maroon Bells Press, Denver; 2020

This book by Professor George William Van Cleve makes the case that America’s size, society, and politics have all changed drastically since the Constitution was adopted in 1787, and the country now needs a new one. “The Founders’ checks and balances have been destroyed,” he argues. “We are slowly abandoning the reality of republican government and instead becoming a de facto elective monarchy dominated by a wealthy oligarchy.”[pg.9]

Van Cleve calls for a new Constitutional Convention and makes a slew of recommendations. To address the country’s “decaying social bond,” he suggests creating new civil rights to primary and secondary education, childcare, healthcare, eldercare, and offering some form of reparation for slavery. To “restore public control of private wealth,” he proposes regulating or breaking up technology companies, limiting inherited and other types of wealth, and taxing the wealthy.

The professor also suggests many institutional changes, most of which have been debated many times already. He proposes an end to the Electoral College, more restrictions on presidential powers, and making maladministration an impeachable offense. For Congress, he wishes to end the filibuster and the Senate’s equal representation of all States; expand the House of Representatives; enact congressional term limits; end gerrymandering, and redraw some districts across state lines. As for the Supreme Court, Van Cleve wants to impose term limits on Justices; limit the Court’s jurisdiction, and empower the Senate to overturn certain decisions.

“The entire separation of powers concept needs to be re-examined,” declares Van Cleve, “and alternatives such as parliamentary governments or some hybrid system should be seriously considered.” [pg. 98] At the very minimum, he wants the new Constitution to require that Presidents appoint members of Congress to their cabinets, and participate in congressional deliberations.

Many of these suggestions and criticisms are similar to those forwarded by Sanford Levinson in his 2006 book Our Undemocratic Constitution. Levinson even writes that Van Cleve’s book is “an act of high citizenship” in its foreword.

Both authors hold the same, highly partisan views. They are left-leaning scholars who seem frustrated that the Democratic party’s agenda is not advancing under the existing separation of powers system. Both books were published when a Republican President occupied the White House. Mr. Levinson was forthright: “Some have accused me of being motivated simply by hostility to the Bush administration, a hostility that I certainly have.” [pg.212] Professor Van Cleve’s wish list of new civil rights—childcare, healthcare, taxing the wealthy, etc.—are longstanding Democratic aspirations.

But Van Cleve’s fundamental contentions are fallacious. America is neither a “wealthy oligarchy,” nor an “elective monarchy,” nor is its Constitution “undemocratic” or “broken.” 

His “wealthy oligarchy” accusation is based mainly on the country’s rising economic inequality and declining economic mobility. Capitalism is prone to such periodic ailments. But this doesn’t warrant abandoning the Constitution’s capitalistic underpinnings. The American system’s method of electing officials and its separation of powers have dealt effectively with capitalism’s ills before, and can do so again. Van Cleve himself admits that “during the Progressive era, and emphatically again in the New Deal, our citizens rejected as un-American the idea that an economy that works well only for the wealthy and reduces everyone else to poverty or wage slavery is acceptable.” [pg.22] 

As to the charge of “elective monarchy,” there’s no evidence of that.  Van Cleve may have been perturbed by President Trump’s attempts to act autocratically, but the U.S. system’s guardrails held firm. He was weakened within two years of coming into office; lost more power in the first midterm elections, and scholars have shown that he wasn’t able to follow through on most of his pre-election bluster. The man was impeached twice, lost his reelection bid and now faces tons of civil and criminal investigations into his actions.

Van Cleve, Levinson, and others accuse the Constitution of being “undemocratic” mainly because of its preferential treatment of small states in the Senate and Electoral College. In Van Cleve’s words: “The Constitution today has a built-in political bias favouring oligarchic wealth because its artificial strengthening of small states now gives systematic political advantages disproportionately to Republican opponents of economic fairness and their allies.” [pg.58]

This view fails to grasp that in the American system all states are equally important, because the government relies on local accountability. Governance in small states will suffer if they don’t have a full say in the selection of the nation’s chief executive or in federal lawmaking; hence the Electoral College and equal representation within the Senate. Without these protections, what is to stop the largest states from dominating all three branches?

Van Cleve’s suggestions can be categorized as policy, non-structural, and structural changes. Policy matters such as childcare, healthcare and a balanced budget are better left to the existing Constitution’s deliberative processes. There are some non-structural changes I do agree with—congressional term limits, mandatory retirement age for Supreme Court justices, and ending gerrymandering.

But I hope the American people reject Van Cleve’s suggestions for structural changes. They will only make the country more majoritarian, bringing it a step closer to a socialistic, welfare state.

Is the U.S. Senate Built on A Flawed Foundation?

Should the Electoral College Be Abolished?

Should the US Senate Abolish the Filibuster?

Should U.S. Supreme Court Justices Have Term Limits?