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For better or worse, an old, flawed and hard-to-amend Constitution binds us

Last in a series of articles. You can read the whole series here.

Here we are, as I type this final installment, a nation in shock from the aftermath of yet another – possibly the worst ever –massacre of innocent children by assault weapon, wondering whether Congress and the president might decide to establish some new restrictions on access to automatic weapons.

And yet we know that any such restrictions as Congress might impose will have to survive the scrutiny of the U.S. Supreme Court, which will divine the true meaning of the three commas in the (really badly drafted language of) the Second Amendment, which guarantees the right of the people to keep and bear arms. The court most recently ascertained that the first 13 words of the amendment, which suggest that the amendment has a lot to do with the importance of well-regulated militias, had little effect on the last 14 words, about the right of the people to have “arms.”

The authors of that language (not the Framers, but members of the first Congress) knew nothing of the kinds of weapons, nor the kind of random gun violence America would experience centuries later, that would help make their republic the random mass-murder capital of the industrialized world.

Those authors were thinking about efforts that the British Crown had made to limit access to weapons in the run-up to the War for Independence. In full historical context, they were also referring back to the effort of the Catholic King James II of Britain to ban Protestants from owning weapons in the England of the 1680s. (Strangely, the first official right to bear arms, which was contained in the British Bill of Rights of 1689, just after James had been deposed, specified only that “Protestants” had a right to own guns.)

New convention?

So personally, yes, I’d sign onto Professor Sanford Levinson’s idea (to which I alluded in the previous installment) of a new constitutional convention, or at least a very wide-open discussion of what kind of systemic changes might make things work better.

But I don’t assume that the nation is open to constitutional change on that scale. And bear in mind that unless they cheat – as the Philadelphians did – whatever they proposed would still have to be ratified by three-fourths of the states. Think about our nation as it is right now. Can you think of any substantial change on which 38 of the 50 states could agree?

Plenty of Americans, including some who have commented on this series, are terrified at what the American leaders and electorate of today might do if they had a chance to start afresh and design a system of governance taking the previous two-plus centuries of experience and knowledge of 21st-century conditions into account.

I understand that trepidation, and share much of it. But it’s sad to accept that the nation trusts itself so little that it prefers the dead hand of the Framers and a document written without the benefit of that experience and knowledge.

Still, so far as I can tell, Levinson’s rallying cry has not yet rallied the kind of supermajorities necessary to seriously discuss calling such a convention, let alone replacing, the Constitution.

Imperfect Union: The Constitutional roots of the mess we're inSo there the argument sits, if you could even call it an argument. We are a nation very frustrated with the dysfunction of our government. But we view the document that created the structure of that government as the most sacred and nearly perfect of secular documents. Asking a group of ordinary Americans to consider fundamental changes in the Constitution might be a bit like asking a group of Christians who believe that the Bible is the literal and inerrant word of God for permission to edit the document to bring it up to date.

I said earlier that disrespecting the Framers isn’t the point. Worshipping them shouldn’t be the point either, except to note that our tendency to want to worship them gets in the way of understanding the role that our Constitution plays in the things that are bothering us.

In a speech on Constitution Day in 2010, Harvard Law Professor Michael Klarman suggested that America suffers from a case of “constitutional idolatry” that renders us largely unable to face up to the shortcomings of the Constitution.

Klarman’s speech, which I highly recommend, was a thorough critique of the Constitution. He argued, for example, that even the most reputedly heroic Supreme Court decisions – those like Brown vs. the School Board -- that form the foundation of popular reverence for the system as it functions, occurred in most cases only after the Supreme Court had taken the other position earlier (see Plessy vs. Ferguson) and after the majority of the country had changed its view.

But the “idolatry” with which mainstream America views the Constitution and the Framers generally blinds us to what those looking on from outside the religion can see. The Framers did the best they could to launch the project of a republic based on a written Constitutions. They had few models to study.

Studied our experience

Those that have come after, who have had opportunities to study our experience, have benefitted from the successes, the failures and especially the anachronisms of the American model.

Many countries are on their second or third constitutions. (So are many of the states of the United States.) We are alone among the nations of the world in maintaining a written, 225-year-old, seldom-amended Constitution.

There was a time when the United States was so well-established as the leading light of world democracy that new democracies tended to study our document and adopt many of its features. But the rest of the world has changed its mind about the American system.

Two law professors studied constitutions adopted by 188 countries from 1946 to 2006. Until about 1970, they found, emerging democracies tended to rely on the U.S. Constitution as an important model. Since then, starting in the ‘80s, countries that were adopting new constitutions have looked elsewhere.

Under the headline, “’We the People’ Loses Appeal With People Around the World,” the New York wrote early this year:

The turn of the twenty-first century, however, saw the beginning of a steep plunge that continues through the most recent years for which we have data,” wrote Professors David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia, to the point that the constitutions of the world’s democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II.

None of the new constitutions utilize any mechanism resembling the Electoral College for choosing their national leaders. None are as difficult as ours to amend. Many of them place limits on the ability of the courts to overrule the elected legislatures. Some rule that power out entirely. None of them allow anything as anti-democratic as the filibuster (although the filibuster is not the fault of the Constitution). And in general, none of them place as many barriers and choke points between a proposed bill and an enacted law.

Law, an author of that study, also developed in an interview with me the theme of Americans’ collective view of the Constitution as a “sacred text.” (As I was writing this installment, I Googled up the New York Times piece from last February about Law’s survey of new constitutions. By accident, I stumbled first on a comment thread in a conservative site, FreeRepublic. It was startling to see how angry the commenters were about the fact that other nations weren’t copying our Constitution, or that the Times would commit the sacrilege of publishing a story about the study.)

The framers made it structurally hard to amend the Constitution, Law told me, and since then, popular American culture has made it “psychologically and emotionally hard” to amend or even to think clearly about the strengths and weaknesses of the Constitution because we have made what was intended to be a “concrete plan for a government” into “the rock on which the nation was founded and the symbol of everything that’s great about America.”

These are all problems for those who believe the Constitution needs to be “updated,” Law said.

Twenty-five years ago, my first effort at Constitutional history was titled “Our Constitution: The Myth that Binds Us.” Our Constitution binds us in many ways, some more beneficial than others. A country that believes in its constitution has a place to turn at crucial moments for answers, a more orderly and peaceful place than rioting in the streets, as Egyptians are doing right now over constitutional questions.

But a Constitution as old and hard to amend as ours also binds us to the best guesses of long-dead ancestors as to the best way to govern ourselves, guesses that at the very least were imperfect.

Thanks to any and all open-minded readers who have joined for this journey of inquiry.

Note to readers: In the coming months, MinnPost will produce an ebook version of this series. Details on how to purchase the ebook will be available soon.

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Comments (5)

Chokepoints and Changes

I understand the various flaws pointed out and agree with some of them. But the biggest counter-argument to any kind of wholesale change is that the Constitution *works*. Our government has largely followed the will of the people and in most cases where it hasn't (war policy and such) it has been because of actions that were beyond what the Constitution allows. In fact, I can't think of any widely supported policy (persistently 60% or above) that is blocked from becoming law. On the other hand, if we weakened procedures for amendments, then we would have had a Traditional Marriage amendment rather than DOMA, etc.
If I was starting from scratch I'd do some things differently, sure, but overall the Constitution works very well.

Respect and Honor the constitution

I know of no one who “worships” the constitution.
I know of many who respect and honor the constitution and spend a great deal of time endeavoring to exegete and interpret what the authors meant by what they wrote. This seems to be a worthy pursuit.
Almost all agree that the constitution is imperfect and needs clarification to our present affairs. It seems that there are sufficient and careful mechanisms within the constitution to accomplish this task.
To pursue the exercise to trying to make the constitution mean what it never meant, seems to be the agenda of many.
However, what is really scary, would be the attempt to write a new document.

Thanks

for an enterrtaining and informative series.

"Idolotry" is about right

Great wrap up to a great and insightful series, Eric. I think you're series has made a good case for a something like a Constitutional convention. It might have to start with something like those peace conferences where about a year was taken to decide about the shape of the table, but if we could get Congress to appoint a group of respected and trusted people, I'd say why not give it a go. As you say, it would take 3/4 of the states to approve anything. Why not get some ideas at least flowing?

I find it incredible to read that the Constitution "works" because the government follows the "will of the people." No it doesn't. Going back a very long way, the government only works for the wealthy elite property owners of the country. The "1%." Or maybe really the "0.1%." The US is a very good place to be if you have great wealth. For the rest of us, life is made far harder than it has to be. Anyone who's traveled much abroad to other "industrialized nations" as they used to be called, knows that this country lags far behind in the standard of living and well being enjoyed by people of similar class and means elsewhere. People who must work for a living, the "wage slaves" , are helpless against the masters of property. Which is precisely why nothing will get done about this obsolete Constitution. Because that's the way it "works."

The Constitution is demonstrably harder to edit than the Bible

"Asking a group of ordinary Americans to consider fundamental changes in the Constitution might be a bit like asking a group of Christians who believe that the Bible is the literal and inerrant word of God for permission to edit the document to bring it up to date."

Ironically, the Bible is perhaps the most edited and modified work in history:

- There are numerous English translations/editions (the Revised Standard Version, the Authorized King James Version, the New King James Version, the English Standard Version, the New International Version, etc.).

- Many non-English versions contain sections not included in the English versions; for instance, the Greek Septuagint contains numerous books not found in the Latin/English Bible, but these books are still considered 'canon' by the Roman Catholic Church (though not by many Protestant sects, which is why most Americans have never been exposed to books like Judith and 1 and 2 Maccabees). Various Eastern Orthodox sects include other books not found in Western versions of the Bible.

Of course, the comparison isn't wholly accurate -- identifying that there are numerous different 'flavors' of the Bible extant both now and throughout history is much more like pointing out that many different societies have taken the U.S. Constitution as more or less of an inspiration when creating their own founding documents. Still, I found the reference amusing, in that we also consider the Bible to be much more of a 'fixed' document than it has actually been throughout history, and there's no truly good reason why the Constitution could not be similarly malleable.