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December 21, 2007


Welcome to THE JOURNAL.

On this weekend before Christmas, I'm struck by a paradox. The news is not so joyous. Housing prices and home sales down…more foreclosures predicted…oil near $100 a barrel…the dollar's sinking food prices rising recession looming and yet, on television, and just about everywhere we look, people squeezed to the breaking point are constantly being told to buy buy buy.

AD: Why not let your kids decide?

BILL MOYERS: And if necessary, to go into hock to do it.

AD: Its easy! Even if you've been turned down before, you could be driving."

BILL MOYERS: Commercials even go out of their way to make adults into children and children into consumers.

AD: Make sure you get the right highlighter.


BILL MOYERS: There is some resistance to this constant commercializing. Watching early morning cartoons with my grandchildren the other day, I discovered word girl the PBS series of a fifth grade superhero fighting evil with her amazing vocabulary

WORLDGIRL: Listen for the words vague and specific

BILL MOYERS: In this episode, the villain, Mr. Big, has flooded the market with a brand new product called 'the thing' which everyone has to have

WORLDGIRL EXCERPT: "THE THING" can do all sorts of stuff! Get one today at a low, low price.

BILL MOYERS: What is it? No one knows or seems to care but as commercials for the thing hit the airwaves, citizens everywhere are seduced into believing they can't live without it, so they descend in droves to buy as many as they can get. Enter: Word Girl!

WORDGIRL: Everyone stop, you're being tricked! The Thing doesn't do anything!

PERSON 1: Yes it does! It does so much stuff!

PERSON 2: The commercial says I needed one for my boat!

WORDGIRL: You don't have a boat!

PERSON 2: Hon, we need a boat for our THING!

WORDGIRL: You don't need a THING!

PERSON 2: But the commercial says !

BILL MOYERS: Watching all this, it seemed a good time to put in a call to Benjamin Barber. Like WordGirl, he's standing athwart history and shouting stop.

You may remember Benjamin Barber from his international best seller, JIHAD VERSUS MCWORLD. Among other things, he's a renowned political theorist and a distinguished senior fellow at Demos — a public policy think tank here in New York City.

His latest book is CONSUMED, about how the global economy produces too many goods we don't need, too few of those we do need, and, to keep the racket going, targets children as consumers in a market where shopping is a twenty-four hour business. Capitalism, he says, "seems quite literally to be consuming itself, leaving democracy in peril and the fate of citizens uncertain." Benjamin Barber answered my call - and he's with me now.

Welcome to the JOURNAL.

BENJAMIN BARBER: Thank you, Bill. Great to be with you again.

BILL MOYERS: Here we are, at the height of the holiday season. The malls and the shops are packed. Stuff is flying off the shelves. And like Grinch or Scrooge you stand up and say, "Capitalism's in trouble." Why?

BENJAMIN BARBER: Because things are flying off the shelves that we don't want or need or even understand what they are, but we go on buying them. Because capitalism needs us to buy things way beyond the scope of our needs and wants to stay in business, Bill. That's the bottom line. Capitalism is no longer manufacturing goods to meet real needs and human wants. It's manufacturing needs to sell us all the goods it's got to produce.

BILL MOYERS: But on the Friday after Thanksgiving, you know, go to the mall. Black Friday, the mall in Burlington, Vermont, where I happened to be, was just packed with people. I mean, they're not in there buying nothing. You're saying that they don't need that stuff?

BENJAMIN BARBER: Sure-- sure don't. And they don't need to shop at 4:00 AM. I mean, I've been looking for signs saying, "Please open the stores at 4:00 AM so I can go shopping at 4:00 AM." I don't see any. I mean, that's the stores' ideas. That's the marketers' ideas. That's the idea to create this hysteria about purchasing. About buying and selling. That makes Americans feel that if they're not in the store at 4:00 AM or 2:00 AM, and some of them open at midnight Thursday. And now a whole bunch were open on Thanksgiving.

BILL MOYERS: But, Ben, nobody is forcing them to do that. People are out there looking for bargains. You like a good bargain don't you?

BENJAMIN BARBER: I love a good bargain when it's for something I need and something I want. But here's the thing--here's the thing. We live in a world where there are real needs and real wants. And there's no reason why capitalism shouldn't be addressing those real needs and those real wants.

BILL MOYERS: Well, give me an example.

BENJAMIN BARBER: Give you a fine example. Here in the United States, we do -- the Cola companies, which couldn't sell enough Cola, figure out, why sell Cola when we can sell water from the tap that people can get for free, but we'll sell it in bottles from the tap. Twenty billion a year. Twenty billion dollars a year in bottled water.

BILL MOYERS: Right. Right. In bottled water.

BENJAMIN BARBER: In the third world there are literally billions without potable, without drinkable, without clean water. Now why shouldn't capitalism figure out how to clean the water out there and get people something they need and make a buck off it, because that's what capitalism does. It makes a profit off taking some chances and meeting real human needs. Instead of convincing Americans and Europeans that they shouldn't drink pure clean tap water but instead pay two bucks a bottle for it.

BILL MOYERS: Those people out there don't have the money to buy it. So that-- why would a company go into a place where people don't have money and try to sell them something?

BENJAMIN BARBER: In capitalism you don't expect a profit right away. You make an investment. You create jobs. You create products, you create productivity. That's the way it works. That's the way we created, in the west, our prosperity. But we don't have the patience any longer to do it in the third world. We don't want to bring them into the marketplace. We'd rather exploit a finished marketplace. But you're right, here's the paradox, those with the dough don't have any needs. Those with the needs don't have any dough. And so--


BENJAMIN BARBER: --capitalism has to decide how to treat it. And their decision has been to go for the deed — to go for the dough, regardless of the needs. I was called on Black Friday by a lot of radio and TV stations.

BILL MOYERS: Black Friday, the day after Thanksgiving.

BENJAMIN BARBER: "Tell us what's going on? What's wrong with American consumers?" Which is kind of what you and I have been talking about. But the trouble is we're looking the wrong way. It's not what's wrong with American consumers, it's what's wrong with American capitalism, American advertisers, American marketers? We're not asking for it. It's what I call push capitalism. It's supply side. They've got to sell all this stuff, and they have to figure out how to get us to want it. So they take adults and they infantilize them. They dumb them down. They get us to want things.

And then they start targeting children. Because it's not enough just to sell to the adults. You've got to sell to that wonderful demographic, first it's 12 to 18 year olds. Then it's the 'tweens. The 10- to the 12 year olds. But then it's the toddlers.

BILL MOYERS: You used a word that went right past me. Infantilize? What do you mean?

BENJAMIN BARBER: What I mean is that grownups, part of being grown up is getting a hold of yourself and saying, "I don't need this. I've got to be a gatekeeper for my kid. I want to live in a pluralistic world where, yes, I shop, but I also pray and play and do art and make love and make artwork and do lots of different things. And shopping's one part of that." As an adult, we know that. But if you live in a capitalist-- society that needs to sell us all the time, they've got to turn that prudent, thoughtful adult back into a child who says, "Gimme, gimme, gimme. I want, I want, I want." Just like the kid in the candy store. And is grasping and reaching.

BILL MOYERS: But isn't all of this part of what keeps the hamster running? I mean, it--

BENJAMIN BARBER: -- It is. But part of the problem here is that the capitalist companies have figured out that the best way to do their job is to privatize profit, but socialize risk. That is to say--

BILL MOYERS: What do you mean?

BENJAMIN BARBER: --ask the taxpayer to pay for it--


BENJAMIN BARBER: --when things go down. The banks now that have just screwed up so big, not one of those banks is going t go under because they'll be bailed out by the feds. 'Cause the feds, the federal government will say we can't afford this gigantic multi billion dollar bank to go under. Happened with Chrysler 20, 30 years ago.

BILL MOYERS: Got to keep the wheel going.

BENJAMIN BARBER: And, therefore, it's impossible to fail if you're a business. You never get punished. Now the whole point of profit is to reward risk. But what we've done today is socialize risk. You and I, and all of your listeners out there, pay when companies like sub-prime market mortgage companies and the banks go bad. We pay for it. They don't.

BILL MOYERS: I heard a commercial from a big bank-- a multi-national bank, I won't mention the name here, but it was actually saying, and this is fairly close to the verbatim that I heard. It said, "Okay, we're coming into the season where you want a lot of things, and you don't have any money. What do you do? You call us. Whatever you want, we'll make it happen." And what is that?

BENJAMIN BARBER: Yeah. And this is after the crisis. This is not before. This is after.

BILL MOYERS: Yeah, no, no, this is-- this was a few days ago.


BILL MOYERS: So what's at stake?

BENJAMIN BARBER: Well, here's the--

BILL MOYERS: You know, you're-- you write so much about democracy. What's at stake for democracy?

BENJAMIN BARBER: Well, there are two things at stake here. First of all, capitalism itself is at stake. Because capitalism cannot stay indefinitely in business trying to manufacture needs for people in the middle class and the developed world who have most of what they need. It has to figure out how to address the real needs of people.

And it's not just in the third world. We have real needs here for alternative energy. And I would want to reward corporations that invest in alternative energy. Not just bio fuels and so on, but also that look at geo thermals, that look at wind, that look at tidal. Tidal is an amazing new field where you use the tides and the motions of the tides. It's expensive, difficult right now. But that's what you get the profits for, by investing in that.

So there are lots of things we can do. Coastlines around this country with global warming are rising. We know hurricane damage. Housing that can withstand water. Big thing. You could make a lot of money figuring out how to build inexpensive housing that withstands hurricanes, withstands flooding. Very few people are doing it. That's the way capitalism ought to be working.

So number one then capitalism itself is in trouble. But, second of all, capitalism has put democracy in trouble. Because capitalism has tried to persuade us that being a private consumer is enough. That a citizen is nothing more than a consumer. That voting means spending your dollars spreading around your private prejudices, your private preferences. Not reaching public judgments. Not finding common ground. Not making decisions about the social consequences of private judgments, but just making the private judgments. And letting it fall where it will. .

BILL MOYERS: There was something else that I wonder about. You know, I was in Vermont. In this little town I was reminded, it has a town square, there's a police station. There's a fire station. There's a city hall. There's a school just a block off the town square. There are the shops along the way. It reminded me of Marshall, Texas, where I grew up. Something's happened with these shopping malls. You no longer have a sense of the participation of everybody in anything except shopping.

BENJAMIN BARBER: Any one of those towns is an exemplar of the variety and diversity of American life. Now compare that town to a mall. You walk through the mall, nothing there but shops. You could walk for miles and think that the whole world is constituted by retail shopping and nothing else. You go to the mall, there's nothing else there.

BILL MOYERS: But there are jobs there. People are working there.

BILL MOYERS: And people say, "This, you know, Barber, Moyers, get with it, this is the 21st century not the first half the 20th century." I mean the world has changed.

BENJAMIN BARBER: Yeah, but there's jobs in the drugs industry. There's jobs in the penitentiaries. You know, you could say, "Gee, the prison expansions are good. More jobs for guards." I mean, sure, anything provides jobs. The question is at what price? Where do we want the jobs to be? Do we want our jobs to be in education? Do we want our jobs to be in the arts? Do we want our jobs to be in general services? Do we want our jobs to be in health? Or do we want our jobs to be in selling gadgets, selling unnecessary food that makes half the country obese? I think it's 55 percent. Where do we want the jobs? And, again, that's a social decision. The market puts the jobs wherever the marketers push them to. What we need to do, as citizens, is say, "Where do we want the jobs to be? What kinds of jobs do we want our young people to have?

BILL MOYERS: So you're saying that there's a role for intervention?

BENJAMIN BARBER: Shh, say that very quietly.

BILL MOYERS: Wherever he is, Milton Friedman is whirling.

BENJAMIN BARBER: Yeah. Well, wherever Milton Friedman is, right now, he's at the soul of the Republican and the Democratic party. And the reality is, here, there is a powerful role for, I'm not gonna say our government, for democratic institutions. For citizens. For participatory institutions. They include our government. They include our townships. They include our PTAs. They include our NGOs and our philanthropies. There's a whole civil society which is a whole lot more than just the government. Where we act not as private consumers, or selfish individuals, but we act as neighbors. We act as citizens. We act as friends to establish the social character of the world we live in. And we keep doing it wrong.

You know, everyone loves Wal-Mart as a consumer. So do I. Lots of goods, cheap prices. But it has social consequences that, as a consumers, we don't think about. We know it means low wages, it means low wages without pensions. It means wage earners who don't have proper healthcare. But, worse than that, it means the destruction of mom and pop stores. The destruction of retail. The destruction of those very little shops you were talking about that are at the heart of America's villages and towns.

BILL MOYERS: But that is the creative destruction isn't it. That's at the heart of capitalism.

BENJAMIN BARBER: But, you know what? Democracy has a simple rule. The social conscience. The citizen trumps the consumer. We, Milton Friedman, with his help, we've inverted that. Now the consumer trumps the citizen. And we're getting a society that manifests the trumping by the consumer of civics. Which means a selfish privatized and, ultimately, corrupt society. And one no one wants their own children to grow up in.

BILL MOYERS: Here's a question. Maybe it comes from your book. When politics permeates everything we call it totalitarianism. When religion permeates everything we call it theocracy.


BILL MOYERS: But when commerce pervades everything, we call it liberty.

BENJAMIN BARBER: Well, that is the central paradox of our times. And, as Americans, I would think we understand that, above all, democracy means pluralism. If everything's religion, we rightly distrust it. If everything's politics, even in good politics, we rightly distrust it. But when everything's marketing, and everything's retail, and everything's shopping, we somehow think that enhances our freedom. Well, it doesn't. It has the same corrupting effect on the fundamental diversity and variety that are our lives that make us human, that make us happy. And, in that sense, focusing on shopping and the fulfillment of private consumer desires actually undermines our happiness.

BILL MOYERS: Help me understand that. Because so many people will say choice is joy.

BENJAMIN BARBER: And they are right. But the question is what kind of choice? You go to LA today, you can rent or buy 200 different kinds of automobile. And then, in those automobiles, you can sit, no matter which one you're in, for five hours not moving on the freeway system there. The one choice you don't have is genuine, efficient, cheap, accessible, public transportation. There's nothing as a consumer you can do to get it. Because the choice for public--


BENJAMIN BARBER: --transportation is a social choice. A civic choice.

BILL MOYERS: I can't go out and buy a subway--

BENJAMIN BARBER: Exactly. You can't do that. And no choice that's available to you allows you to do that. So many of our choices today are trivial. We feel that we're expanding and enhancing our choice, but the big choices, a green environment, a safe city for our kids, good education, simply, are not available through private consumer choices. That's the problem with vouchers for schools. You know, we think that with vouchers we can all find a good school. But if education itself is going under, and is not supported as a social good, no amount of private choices is going to give any of our kids in public or private schools appropriate education.

BILL MOYERS: I read the other day that, for the first time, we are spending more than we are saving. We have become a true significant debtor nation. What does that mean in the long run?

BENJAMIN BARBER: Well, it means a couple of things. And it is, by the way, a devastating economic fact. And here the economists will agree with me, a political scientist and a political theorist, it's no good for a country to do that. As country that stops saving becomes a debtor nation in every way. That's why we're in hock to China and the others who own dollars. That's why the dollar has collapsed abroad.

But it also means that we are no longer in a position to create the forms of industry, capitalism and social consciousness that comes from saving. Saving is how we invest in the future. Saving means that we're putting money aside, deferring our own gratification, to create a future that our children can be part of. When we spend it all on ourselves now, and then more than we have, we put ourselves, and, more importantly, we put the future itself in hock. We're really selling our kids and grandkids when we do that.

BILL MOYERS: You know, we're at the mercy then, aren't we, of China and Dubai? I mean, just as we're sitting here talking, I have resonating in my head the report on the radio the other morning, that Citi Corp is receiving a $7 1/2 billion infusion from Abu Dhabi. What's going on?

BENJAMIN BARBER: People-- that have to go into their ancient history memories, banks, to remember, that just a couple years ago Dubai ports, you know, was the biggest-- "We can't let Dubai ports take over our ports in the United States. We have our sovereignty," and so on. And people screamed and, you know-- uproar about it. And Dubai ports was eliminated from the mix. But, meanwhile, Dubai is buying the United States wholesale, along with China and other countries. We make a fuss about our sovereignty and politics, and we have debates. But we sell our sovereignty down the river by becoming a debtor nation. Becoming a nation which, in effect, lives beyond its means. Has to borrow from abroad. Has to sell its dollars cheap abroad in order to go on being a debtor nation. Go on being a consumer nation. These, again, are social and public consequences of private choice which we just don't-- when you and I go to the mall on Black Friday we just think, man, there's a bargain.

BILL MOYERS: But that's globalization, isn't it?

BENJAMIN BARBER: We do all that — it is globalization, but we're on the wrong end of the globalization.

BILL MOYERS: What do you mean?

BENJAMIN BARBER: China, that owns our dollars, is on the right end of globalization.

BILL MOYERS: Right. Right.

BENJAMIN BARBER: The US is selling itself, China's buying. China is buying into the global market. America is selling itself out in that global market. So you're right, you've got to deal with an interdependent world. You've got to deal with globalization. But the way we're doing it, selfishly, using only a consumer mentality, is to assure that America's on the losing end.

BILL MOYERS: But paradoxically, you know, money is washing through the world. Lots of big winners right now. Who's losing in all of this?

BENJAMIN BARBER: Well, not only are there billions, literally billions, you know, people in the developing world in Africa, in southern Asia, in Latin America, who continue to be, not just losers, but losers bigger than before. Because the gap in rich and poor is growing not declining. Up until about 1970, from World War II--


BENJAMIN BARBER: --to the 70s, it diminished. Starting in the 70s it plateaued out. And now it's been increasing and increasing. That's true of both north, south. And it's true even within the United States.

And, of course, the point about the losers is they are invisible. There's that great book called THE INVISIBLE MAN back in the days when, to be black, was to be invisible. Now it's the invisible poverty of the world. And the great majority of the world's people live in poverty. They have real needs and wants. Capitalism won't address them, 'cause it doesn't figure it can make enough profit off addressing them. And so, instead, it addresses all these faux needs — that inequality of course, is the deep driver behind global instability, global war, and even global terrorism. I don't mean, by that, that terrorists are poor. I mean to say--


BENJAMIN BARBER: I mean to say the instability, the weak state systems, the economic poverty that disables societies, create a climate within which terrorism and fundamentalism can grow. So we are ignoring an inequality that is going to come and haunt us. In fact, we are living, today, in a new world of walls. You know, what we think is that every time you see some inequality, build a wall. Gated community here in the US. A wall between us and Mexico. A wall between Israel and the Palestinians.

Isn't it ironic, Bill, that, what is it? Seventeen years after the fall of the wall which was the emblem of totalitarianism in Berlin, and between east and west in Europe, we have now turned to the wall as our primary defense against even seeing the inequalities, let alone in dealing with the inequalities that our capitalism is creating.

BILL MOYERS: But don't leave us down in the dumps. How do we encourage capitalism to do what it does best, which is to meet real human needs?

BENJAMIN BARBER: Well, let me see, I think there's three things we can do. First of all we, as consumers, have to be tougher. We are the gatekeepers for our kids and our families. We have to be tougher. I mean, I ask anyone out there who needs to go out at 2:00 AM to go shopping? For God sakes, wait 'til Monday afternoon. Second thing is capitalism has to begin to earn the profits to which it has a right, when it takes real risks. And there are companies doing that.

I'll give you a couple of hopeful examples. There's a company in Denmark that's gotten very rich very fast making something called the Life Straw. It's a thing about this long. And in it are about nine filters that filter out all the contaminants and germs that you find in third world cesspool water. If you buy one of these for a couple bucks that's all it takes, a woman in the third world and her family can drink through that straw, and it doesn't matter what water they have available. It cleanses that water. A little firm in Denmark that makes that life straw is making out like a capitalist bandit we'd say. But properly so. They're being rewarded for taking a risk.

Inventing something that is needed. Folks working in alternative energy, some of them are going to make real money. And that's a good thing. That's what they ought to be doing. So capitalism has to start. And there are many cases of where--

BILL MOYERS: Creative capitalism and tough consumers. Third?

BENJAMIN BARBER: And, number three, we've got to retrieve our citizenship. We can't buy the line that government is our enemy and the market is our friend. We used to say government can do everything, the market can do nothing. That was a mistake. But now we seem to say the market can do everything and government can do any-- nothing. Government is us. Government is our institutions. Government is how we make social and public choices working together. We've got to retrieve our citizenship.

BILL MOYERS: The book is CONSUMED. My subtitle is staying in bed or coping with cognitive dissonance. Benjamin Barber, thanks for being with me.

BENJAMIN BARBER: Thanks so much Bill.

BILL MOYERS; From listening to the candidates on the campaign trail, it's easy to believe that the election next year will put us back on the path to political health. My next guest says don't count on it. He says we are suffering a democracy deficit- that our institutions aren't promoting self-government. And the problem, he says, goes to the most sacred of our secular documents — the Constitution.

Why venerate a document he asks that puts in the White House candidates who did not in fact get a majority of the popular vote? A document that gives Wyoming the same number of senate votes as California, with seventy times the population. A document that enables the president to overrule both houses of congress simply on political grounds. That allows Supreme Court justices to serve as long as they want and then time their departure to influence their own choice as to who succeeds them. A document that makes it possible to build "a bridge to nowhere."

Wrong, wrong, wrong, says the heretic Sanford Levinson. And he tells why in this powerful book, OUR UNDEMOCRATIC CONSTITUTION — published last year. It's one of several he's produced - along with 200 articles scholarly and popular journals.

Sanford Levinson has been pondering these matters for more than a quarter of a century — as a scholar and professor at the University of Texas Law School and as a visiting professor at Yale, Harvard and Georgetown Universities. His mission is to make us think about what we the people can do to get the Constitution we deserve. Welcome to the JOURNAL.

BILL MOYERS; In your book, in your columns and op ed pieces, on your blog - to which we will be linking - I get a sense of real urgency. Why is that?

SANFORD LEVINSON: The main sense of urgency that I have is that we allow the commander in chief to fire generals who are thought to be incompetent. Lincoln fired a number of generals. George Bush, in effect, has fired a number of generals. Though what we're now discovering is that most of the generals he fired actually were fired because they were trying to tell him the truth about the number of troops it might take really to do an effective job in Iraq. This is going back to General Shinseki. So, we allow the Commander in Chief to fire generals he no longer has confidence in. But, we can't fire a Commander in Chief we no longer have confidence in.

BILL MOYERS; But, it's not just the Bush administration that has you-


BILL MOYERS; --all riled up. I mean you say very clearly don't get your hopes up that no matter who's elected in November of 2008 and takes the Oval Office in January of 2009 the basic fundamental grievances of our democracy are going to be solved.

SANFORD LEVINSON: Well, I think that's absolutely right. That one of the subtext of the book is precisely that presidents in both parties-- this is not President Bush's doing. But, presidents in both parties have announced over and over again that we're committed to spreading democracy around the world. But, we have not had a really serious discussion in this country of what we mean by democracy.

Is the Constitution sufficiently democratic? One of the mantras of contemporary democracy is some notion of one person/one vote. That is obviously violated by the Senate in a spectacular way. But, I think we should realize the Presidential veto gives way too much power to one individual. And violates I think or what I would think we should see as a 21st century notion of democracy. In fact, the American President regarding the use of the veto power is second only to the President of Cypress in his ability successfully to stop legislation. And the President of Cypress wins only because there's no possibly for an override. But, presidents can successfully stop legislation 95 percent of the time.

SANFORD LEVINSON: One of the reasons I am convinced that so much money is put into presidential races is because people who spend money know that you can get a huge return on your investment if you can get a sympathetic president in the White House, who will threaten to use the veto power. That, in order to buy control, if he had just talk-- in the most cynical language right now---which I don't fully believe. But in order to buy Congress, you have to buy a majority of the House of Representatives, and the majority of the Senate, which is really not easy to do. If, on the other hand, you can buy the president, then you have somebody who can use the power that we now give a president as the third house of the legislature-

BILL MOYERS; --they can also put the Federal Communications-


BILL MOYERS; --Commission, sympathetic-


BILL MOYERS; --commissioners.

SANFORD LEVINSON: Right, the control of the bureaucracy. And this is a massive, massive display of power that could not have been part of the 1787-


SANFORD LEVINSON: --vision, because they never imagined what the, what the national government would grow to become.

BILL MOYERS; I was just this morning reading an essay by some historians and scholars who say that what we're experiencing in Washington right now is not just gridlock, but paralysis?


BILL MOYERS; Paralysis, more difficult than we've had since the period, the decade before the Civil War.


BILL MOYERS; Do you think that's true?

SANFORD LEVINSON: I certainly don't think it's untrue. I mean, I think the best example of that, in terms of social tensions, is immigration. I mean, again, given my own politics, I'd rather talk about Congress being unable to resolve issues of medical care or things like that. But it's very, very obvious this election year that immigration has become the hot button-


SANFORD LEVINSON: --issue. The Republican candidates, in particular, are falling all over themselves to declare which of them will be tougher on immigrants. Though the dirty secret is that for better and for worse, there's not that much a president can do. That Congress would have to pass a great-


SANFORD LEVINSON: --deal of legislation. And what we have learned over the last year or two, and this isn't particularly a matter of sheer partisan politics, because to give George Bush his due, on the issue of immigration, he's quite sensible. If-

BILL MOYERS; --and he and the Democrats-

SANFORD LEVINSON: And-- and-- as--

SANFORD LEVINSON: --as governor of Texas-


SANFORD LEVINSON: --he was not like Pete Wilson, who-

BILL MOYERS; California?

SANFORD LEVINSON: --in California, who really bashed immigrants. That's not who George Bush was in Texas. It's not the George Bush who's been in the White House, and I'll give him some credit for that. But you have a very divided country over what the right thing to do with immigration is. Some of this takes regional form. So you have these very sharp divisions. Congress can do nothing. You see more and more states. You see localities, I think trying to pass their own legislation. You look at Congress, and it's just incapable of functioning. And that's where don't think immigration is likely to lead to civil war. But it is leading to an increasingly, nastily divided country.

BILL MOYERS; Let me briefly list some of what you called the grievous defects in the Constitution. And you tell me why they're-


BILL MOYERS; --so grievous? The allocation of power in the Senate. You say the Senate is among our most grievously flawed institutions?

SANFORD LEVINSON: Well, just on the one person, one vote notion. That to give Wyoming, with one 70th of the population of California, the same political power. And I'd mention one other feature. We have a bicameral system in Congress that gives each house a power absolutely to veto the other. So, that the Senate can block anything the House does, which makes Wyoming and the other upper-Midwest states so powerful in the Senate.

The modern Senate works, frankly, as the worst sort of affirmative action program for the residents of small states. It doesn't protect the values of federalism, state autonomy, diversity and the like. Rather, it means that senators of small states, particularly the small states that are clustered together in the upper-Midwest, quite frankly can make out like bandits. So that-

BILL MOYERS; That's where they get the bridge to nowhere?

SANFORD LEVINSON: We--the bridge to nowhere. You also have what is widely agreed to be a dysfunctional-- agricultural program.

BILL MOYERS; Oh, yeah.

SANFORD LEVINSON: That has all sorts of consequences, ranging from the obesity epidemic, to whether Africans who grow some of these crops can get a fair share of the world market. And the reason that candidates from both parties-- support the ethanol subsidies are unwilling, at the end of the day, really to touch the sacred cows of our agricultural programs is because of the power these states have in the Senate.

BILL MOYERS; The small states-

SANFORD LEVINSON: The small states.

BILL MOYERS; --exactly. Next grievance. The, and I'm quoting you, "the almost certain presidential dictatorship that will follow any catastrophic attack on members of Congress."

SANFORD LEVINSON: Let's say we have a catastrophic attack that, flight 93 had not been forced down-

BILL MOYERS; In Pennsylvania-

SANFORD LEVINSON: In Pennsylvania they actually-

BILL MOYERS; Hit the Capitol?

SANFORD LEVINSON: Hit the Capitol.

BILL MOYERS; Right, which is-


BILL MOYERS; --it's target, apparently.

SANFORD LEVINSON: Apparently. And if it had, let's say it had had not killed, but disabled 60 or 70 senators. The difference is that if senators are killed, they can be replaced the next day, because the 17th Amendment says that if there's a vacancy in the Senate, the governor can name a substitute. If a senator is disabled, then the governor, by definition, can't act.

And to get even more technical, you can't even have a quorum for the Senate to meet if you don't have a majority of the membership. With regard to the House, frankly doesn't matter, in the Senate, whether members of the House are killed or disabled, because under the Constitution, all member of the House of Representatives must be elected. Now there was a study group of the American, Conservative American Enterprise Institution, the liberal Brookings institution, that's concerned itself with this problem of continuity and government. And the fact is my Republican Senator, whom I'm generally not a supporter of, but I admire Senator Cornyn because he actually-

BILL MOYERS; From Texas?

SANFORD LEVINSON: --from Texas, who introduced an amendment that would provide a way of taking care of this problem. Now, it isn't going anywhere in Congress. It's just another piece of evidence as to the inability of Congress to respond effectively, even where the issue is completely non-partisan.

BILL MOYERS; Next example: the electoral college, which you say renders some states, i.e. Massachusetts, nearly irrelevant in presidential politics. Those voters up there might as well be living in Bermuda, as far as their vote's going to count in this year. So, what about the electoral college?

SANFORD LEVINSON: Well, actually, my wife and I split our time between Austin, Texas and Boston. And we can say with confidence that over the last two election cycles, and almost certainly for this election cycle, in effect, we didn't know an election was taking place, except during primary season, because no candidate visits Massachusetts or Texas. We happen to vote in Texas. If you're a Democrat, there's no reason to show up, because Texas, at least into the foreseeable future, is a predictable Republican state. Massachusetts, of course, is a predictable Democratic state.

BILL MOYERS; So the candidates stay away?

SANFORD LEVINSON: So the candidates stay away. And they don't address the issues that the safe states have. You would really never know from the political campaign, up to now, that most Americans actually live in cities. Texas, as you know far better than I, has three of the ten largest cities in the country. California has a number of very large cities. New York, Illinois. These are all safe states. So, there is no incentive of the candidate really in either party to give a stem-winding speech about what he or she will do for San Antonio or for New York City, or LA or Chicago, because you can predict exactly how those states are going to vote. So, the election, modern elections boil down to battleground states.

SANFORD LEVINSON: Now, this, I think, is a pernicious feature of our politics.

BILL MOYERS; Of the electoral college?

SANFORD LEVINSON: Of the electoral college. There are all sorts of things that are wrong with the electoral college. The freezing out in given states of political minorities. And also, the fact, I mean, all of the attention is place on the fact that George Bush got the White House without coming in first. But, if you look at American presidents elected since only World War II, let alone before that, you discover that an amazing number of them didn't get a majority of the vote.

BILL MOYERS; How many, do you remember?

SANFORD LEVINSON: Harry Truman, John Kennedy in 1960. Richard Nixon in 1968. Bill Clinton in both of his elections. And of course, George Bush notably in 2000. And there's an asterisk with Gerry Ford, because he never ran an election at all. And in fact, it's a real mistake simply to focus on what happened in 2000, and to think that it's really that much better that Richard Nixon and Bill Clinton became president in 1968 and then 1992, with 43 percent of the vote. This is not the sort of support you want with a president who really can, on his own, send people to die in wars.

BILL MOYERS; Here's one in your book, one case study in your book, that took me back, as well. Because I was taught to believe, growing up, that life tenure for Supreme Court Justices meant they were above politics . And yet, you say this is one of the offenses of our Constitution?

SANFORD LEVINSON: Yes. I think that the original rational for life tenure is easily defended. That is, you want to protect judicial independence. And the best way to protect independence, it's like tenure, and I'm grateful every single day, let me tell you. I'm grateful every day to have tenure at the University of Texas Law School. But one of the things that's obviously true is that every value involves a tradeoff with another value. And so life tenure today, and I don't think it meant this 100 years ago, 200 years ago.

Life tenure today means that there's a perverse incentive on the part of presidents to appoint relatively young members of the Supreme Court, so that they can hang on for 35 or 40 years. Now, I don't think we need that lengthy a term in order to preserve independence. There's a suggestion a make in the book is that a single, non-renewable term of 18 years would be--enough. There's also the feature, with life tenure-- that justices obviously don't have to serve until they die. They can choose to resign. Well, when do most judges choose to resign? It ought not be a big surprise that they wait or they try to wait until a president of their own party is in the White House. This is not judicial independence. This is political partisanship.

And so what you have is Justice O'Conner waiting until a Republican president is in office to resign. You also have quite frankly, the unseemly efforts of Justice Marshall and Justice Brennan to hang on for dear life until a Democrat got into office. Now, neither of them made it. But if we had simply a non-renewable 18-year term, then no justice could try to gain the system. And I think we'd be better off.

BILL MOYERS; Let me play back to you one of your own thought experiments that you described in the book. "Imagine that the United States Constitution contained a provision whereby every 20 years, the electorate could vote for a new Constitutional convention that would assess the Constitution, and recommend changes." If this were such a year, would you, Sanford Levinson, vote in favor of a new convention?

SANFORD LEVINSON: Oh, of course I would.

BILL MOYERS; But wouldn't you be opening a Pandora's box? Wouldn't you be risking losing some of the tested safeguards that have developed through 200 years of more or our own Constitution?

SANFORD LEVINSON: Well, since this is the most often asked question, especially by friends and members of my family, I have an answer to it. And I'm not so fearful, for a number of different reasons. First of all, how would I choose members of the convention? My answer is to go back to ancient Greece, or to look at the way we choose juries. And I would have 700 or so of our fellow citizens chosen at random. Meet for two years, pay them the salary for those two years of a Justice of Supreme Court, United States Senator, because they would be fulfilling the highest possible function of citizenship. Give them time to reflect and learn about these issues.

And one of the things they would learn is if they insisted say, on whatev-- what is everybody's worst nightmare, getting rid of the Bill of Rights, or any of the other really hot button issues. Then one of the things you learn if you look at the roughly 220 state Constitutional conventions that have been held over our history, is that those attempts at reform fail. You may recall that Texas tried to reform its Constitution in 1972, I think it was. I think it's fair to say that most Texans of all political persuasions believe that the reconstruction era Constitution needs some reform.

What brought down the reform? It's easy. Big business couldn't resist the temptation to put a right to work provision in the Constitution. So that led labor unions, in turn, to vote against the new Constitution. And then there were other people who say, "If it ain't broke, don't fix it." Or, "If it's good enough for grandpa, it's good enough for me." Or they might not have liked some other feature. So the only way you would ever get significant change, is if you convince people across the political spectrum. Then, I think, you might be able to imagine these being approved in the ratification process.

If, on the other hand, you had a convention taken over by single issue zealots, whatever the single issue is, then the most likely thing is that the convention would just break down. People would simply start shouting at one another. And then it would never be ratified.

BILL MOYERS; Why not just amend the Constitution?

SANFORD LEVINSON: Well, I think in many ways that would be a satisfactory response for at least some of the criticism - or all of the criticism which call for a Constitutional amendment. The reason we need a convention instead of going the route of Constitutional amendment really is because Congress is just too busy that each and every one of these issues that I am interested in would take a significant amount of time and energy to explore.

Today's Congress even if they didn't have to spend an inordinate amount of time raising money which I think most members of Congress despise, but even if they didn't have to spend the time raising money they also deal with a remarkable range of issues that are always competing for their scarce time and attention. Since 1959 the numbers of the members of the House and Senate had remained constant. 439 members of the House, 100 members of the Senate. Since 1959, our population has gone up by 2/3s and the responsibilities of the national government now include as they did not in 1959 health, education, the environment, urban policies, issues of war and peace of nuclear arms are ever more complicated than they were.

BILL MOYERS; Terrorism

SANFORD LEVINSON: Terrorism. So that to get members of Congress to say we are really going to spend the time that it would take to have a serious conversation about these this just sounds academic in the most pejorative of senses You're undoubtedly right. And then this comes back to another thing we talked about earlier this hour, which is that we describe ourselves very proudly as a democracy. The preamble of the Constitution, which I think is a wonderful preamble.

BILL MOYERS; Magnificent.

SANFORD LEVINSON: I think it's magnificent. And I think we ought to think about it almost literally every day, and then ask, "Well, to what extent is government organized to realize the noble visions of the preamble?" That the preamble begins, "We the people." It's a notion of a people that can engage in self-determination. What I have discovered, is a real fear of popular government. And I think that for a variety of reasons having to do with the nature of politics in recent years, there is this incredible mistrust of people who don't share your views. And you think that they're out, in some ways, to wreck the country. This is what populist politics is thought to mean. There are a number of political scientists and sociologists. My friend Alan Wolfe is one of them.


SANFORD LEVINSON: Who has argued that if you actually talk to Americans in their own homes, in their own workplaces, they're really, it's not that everybody agrees. But they're not so polarized as our current political system is. And there really is the opportunity to create a more Democratic politics. But I think, frankly, and somewhat sadly, more and more people are losing that face in popular government. And so then we might have to ask ourselves, "Well, what's the alternative to popular government? Is that government by experts? Is it government by elites? Is it government by those who have most money?"

BILL MOYERS; That's what we have now.

SANFORD LEVINSON: Yes. Yes. And I really-- I don't think we should give up on the promise of Democracy.

BILL MOYERS; I hope that you have launched a beginning of a national conversation. We will link your blog, which is a fascinating one, to our site at, and I hope a lot of people read, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG AND HOW WE THE PEOPLE CAN CORRECT IT. Sanford Levinson, thank you very much for joining us.

SANFORD LEVINSON: Thank you. The pleasure is mine.

GEORGE MITCHELL: For more than a decade there has been widespread illegal use of anabolic steroids and other performances enhancing substances by players in major league baseball.

BILL MOYERS; There's been talk all this week about that stunning report from former Senator George Mitchell revealing that Major League Baseball players, including some of the sport's biggest stars, have been using steroids for years. The findings prompted my fellow journalist and friend Dick Starkey to recall an important insight into America by the eminent social critic, Jacques Barzun. A Frenchman by birth, now 100 years old and living in Texas, Barzun, like his illustrious ancestor Alexis de Tocqueville, has been a canny interpreter of the American character. "Whoever wants to know the heart and mind of America," he once wrote, "had better learn baseball."

So what do we learn about ourselves from the Mitchell Report? That something is flowing through our veins other than red corpuscles. It turns out owners, players and the players' union were complicit in ignoring the growing use of steroids and other illegal drugs in our national pastime. But suppose our national pasttime has become our national pathology? Ours is a society on steroids, and we're as blind as baseball's owners were a decade ago.

In our drugged state, we cheer the winners in the game of wealth, the billionaires who benefit from a skewed financial system -- the losers, we kick down the stairs. We open fire hoses of cash into our political system in the name of "free speech." Television stations that refuse to cover government make fortunes selling political bromides over public airwaves. Pornography passing as advertising assaults our senses, seduces our children, and pollutes our culture. Partisan propaganda gets pumped up as news. We feed on the flamboyance of celebrities. And we actually take seriously the Elmer Gantrys who use the Christian Gospel as a guidebook to an Iowa caucus or a battle plan for the Middle East. In the face of a scandalous health care system, failing schools, and a fraudulent endless war, we are as docile as tattered scarecrows in a field of rotten tomatoes.

As for that war, you may have heard that a quarter of the heavily-armed ‘shooters' working in the streets of Baghdad for the Administration's mercenary Blackwater foreign legion are alleged to be chemically influenced by steroids or other mind-altering substances.

The other day, before Mitchell issued his report, the former pitcher Jim Bouton was holding forth on the importance of a level playing field in the sport at which he had long excelled. Were he playing today, Bouton said, he wouldn't want to lose his livelihood because his competitors had an unfair advantage.

You don't get a level playing field with performance enhancing drugs, any more than you get an honest government with political action committees and bundled contributions, or a fair economy with some derivatives, hedge funds, and private equity managers taxed at rates lower than their janitors. You get a level playing field only when the fans demand it. Suppose people stopped attending games in large numbers, stopped watching on TV, stopped buying the products hyped by the icons. The leveling would happen, or baseball as a money-making business would die. It's not likely to happen. If we can't organize to stop a brutal, bloody war in Iraq, or rectify an economic system that divides us further every day, we can hardly expect collective action from baseball fans.

There was a lesson in George Mitchell's report that I'm not sure even he recognized. The day Americans don't feel strongly enough about the need for level playing fields to fight for them -- the day when cutting corners and seeking an edge become the national pastime -- is the day democracy will be lucky even to find a seat in the bleachers.

The JOURNAL continues online.

My colleagues Rick Karr and Peter Meryash report on this week's FCC vote to increase monopoly control over the press. Check out their web-exclusive coverage at

FCC COMMISSIONER ADELSTEIN: The law tells us that we're here to serve the public interest not those who seek to profit by using the public airwaves.

BILL MOYERS; That's it for the JOURNAL. I'm Bill Moyers. See you next week.

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