Sanford Levinson’s Framed begins with a familiar indictment of the American constitutional order and what seems like a romantic fix. The indictment is that we live in a time of national ungovernability. The fix is “a new constitutional convention” (p. 8). Familiar and idealistic (or not), Framed is an essential step towards returning constitutional thinking to the practical political relevance it had at its founding. (One is reminded of Robert Dahl’s equally quixotic purpose in How Democratic is the American Constitution? [2001]) So before I say anything else about Framed, I applaud Levinson’s longstanding commitment to making the study of the Constitution a work of practical engagement and not just of academic exegesis—a commitment manifest earlier in Constitutional Faith (2011) and in Constitutional Stupidities, Constitutional Tragedies (with William N. Eskridge, 1998). Bravo.

In returning constitutional theory to its origins, Levinson asks us to set aside our fascination with the “Constitution of Conversation,” or the Constitution of ambiguities and uncertainties (and in turn to set aside a constitutional theory that privileges questions about how we should interpret the Constitution), in favor of thinking about the “Constitution of Settlement.” The settled Constitution is the Constitution of institutions, structures, and rules. It is the Constitution of “self-enforcing” provisions, whose meaning is “sufficiently obvious…that they require no adjudication at all (p. 22).” If the Constitution of Conversation invites questions as to what the Constitution means, then the Constitution of Settlement invites us to think about what works. This is the kind of constitutional inquiry that necessarily occupies the mind of framers and putative framers. And it is the kind of constitutional thinking that should lead engaged citizens to consider whether institutions, offices, and rules crafted in the 18^th century should be revisited in the twenty-first. If one might criticize Robert Dahl, as did James W. Ceaser, for “abstract theorizing about political life, in which changing regimes is treated in much the same way as one would treat a policy question” (James W. Ceaser, Liberal Democracy and Political Science, 1992, p. 140), Levinson’s effort explicitly “is a call, if not to revolution, then at least to active citizenship (p. 391).”

Levinson’s pointed criticisms of the Constitution cover a lot of territory. In chapters 5 through 16, for example, Levinson discusses flaws respecting elections, the Electoral College, bicameralism, presidentialism, the organization of the executive branch, impeachment, emergencies, Article 3, Article 5, and federalism. Readers acquainted with Levinson’s earlier work will find many of these criticisms familiar. Levinson’s trenchant discussions about the composition and internal organization of the Senate (and especially its equal division of power among states) and Article 5, “the most truly dreadful part of the Constitution,” which is weighted so heavily against formal amendment and thus constitutional reform, are especially compelling.

The real flaw in the current constitutional order, however, is one that courses throughout Levinson’s repeated references to what some call “democratic deficit.” One of Levinson’s principal purposes is “to understand why proponents of republicanism and de facto proponents of democracy advocated” the structural components of the original Constitution and why those components remain “significantly unchanged more than two centuries later” (p. 81). Levinson’s discussion of the Electoral College makes the point forcefully, if arguably at the cost of alternative explanations for its function. (See Akhil Reed Amar, America’s Constitution: A Biography, 2005). Again, this reflects the central claim in Framed that the chief causes of our democratic discontent lie in constitutional design.

In a longer review one might discuss Levinson’s criticisms of particular constitutional arrangements and structures in more detail. Here, however, I want to raise a couple of larger points. Implicit in any call for a new constitutional convention, Levinson’s included, must be two assumptions. The first assumption is that the causes of our current “crisis of governance” are grounded in some substantial way in the Constitution itself (however defined). Because they do, fixes can be found in the same form, especially if we look (as did the authors of the Federalist Papers) to other constitutional orders—foreign constitutions and the constitutions of the fifty states—for guidance.

Levinson is clear on this point: He claims (as indeed he must if we are going to take the call for a new convention seriously as a potential prescription) that the causes of our political dysfunction trace in some significant way to the Constitution itself. A “major premise” of Framed, he writes, is that “there is a connection between the perceived deficiencies of contemporary government and formal constitutions (p. 5),” while conceding that “[n]othing in this book should be read to suggest that a ‘good constitution’ is the cure to whatever ails society or that a ‘bad constitution’ is necessarily a harbinger of doom” (p. 7).

But I wonder about the causal claim that inheres in the charge that the source of our political dysfunction is the Constitution. Levinson does a very fine job of highlighting and discussing the many flaws that stain our constitutional framework. But it requires a leap of (constitutional?) faith to think that the Constitution itself is the cause of our dysfunction and not something else, like statutory public law, or political or popular culture, or contemporary politics, or even fever. We might wonder how much dysfunction traces to constitutional failure and how much to other factors. A robust conception of constitutional failure is a necessary first step to meaningful constitutional reform.

In what I hope Levinson will consider a friendly amendment to his argument, we can maintain the argument that constitutional forms contribute causally to our dysfunction if we think about the Constitution in more expansive ways, as itself creating or at least contributing to a dysfunctional political culture—not only because individual provisions are obsolete or unworkable, as Levinson convincingly demonstrates, but also because how we think about the Constitution (as calling for our veneration and as entrusted to judges for its enforcement) contributes to democratic deficit (See John E. Finn, Peopling the Constitution, 2014). Indeed, Levinson himself has observed elsewhere that the real impediment to constitutional reform may be less in the specific procedural hurdles erected by Article 5, and more in a larger culture of “constitutional reverence” that discourages citizens from thinking critically about constitutional matters (See Sanford Levinson, Our Undemocratic Constitution, 2008).

Secondly, do we have any good reason to suppose that the product of a new convention will be more likely than current arrangements to move us closer to a more perfect union? What reason do we have to think that the product of a new convention will yield a constitutional order that is superior to the profoundly imperfect one we have now? As Levinson (and so many others before him, including William Lloyd Garrison and Frederick Douglass) reminds us, the first convention resulted in repugnant compromises (especially regarding political representation and slavery) that continue to encumber our efforts to construct a more perfect union. One wonders (and possibly fears) what sorts of compromises might result from a second convention. In asking this question I want to do more than simply voice the oft-heard objection (and widely shared, at least among elites) that we have no Madison, no Hamilton, no Gouverneur Morris, no Patrick Henry or Robert Yates. (One might add that Levinson's proposal that delegates should be chosen by lottery makes the prospect of finding such individuals purely a matter of chance.) I do not, in other words, want to suggest that we should fear a convention because we should doubt the constitutional capacities of the people themselves. Instead, I want to ask a more fundamental question—one premised upon the very opposite assumption and grounded in the belief and hope that We the People are indeed capable of reason and reflection: What if We (or our delegates) determine that the fault is not in the Constitution but rather in constitutionalism, or that it is a constitutional way of life itself that impedes our search for the good or other preambular ends? What if We conclude that the ends identified in the Constitution of 1787 are best secured not through constitutional reform, or even a new constitution, but through some other form of political organization? So a second assumption behind the call for a new constitutional convention is that human communities are in fact best organized along principles that are broadly constitutionalist in character. A convention might put that assumption at risk as well.

These and related concerns illustrate why some of us will think Levinson’s call for a new constitutional convention is unlikely to be realized, if not also feared. The concerns rest on the suspicion that the people cannot be trusted to safeguard and preserve constitutional values. A convention (peopled by demagogues chosen by lottery rather than statesmen, scholars, and lawyers) might give us more democracy and less constitutionalism. Others of us, Levinson included, think the people may be up to the task of constitutional self-governance, especially if given some genuine measure of responsibility for maintaining the Constitution. The real value of Levinson’s call to a convention is not whether it is plausible, but rather the sparks of conversation it generates about the health and vitality of our constitutional order. Framed is an invaluable contribution to these discussions.