America In Context

The Symptoms

Recent events have, not surprisingly, stirred up discussions of amending the U.S. Constitution. The presidential elections of 2016 and 2020 have folks crying out for a Voting Rights Amendment, eliminating gerrymandering, abolishing the Electoral College, and guaranteeing free & fair elections. The events since the last election, leading up to the insurrection on January 6, have led to demands to strengthen checks and balances; clearer definitions of treason, sedition, and impeachment; and improvements in the mechanisms to remove a President who is either incapable, unwilling, or opposed to fulfilling the duties of the highest office in the land. Then there are the age-old battles over the 2nd Amendment; the definitions of speech; the role of religion; and the legality of the Senate filibuster, to name but a few.

I suggest to you that these are symptoms, symptoms of a greater flaw in the Constitution itself, a flaw traced back to the very forming of the Union and the penning of the document itself. The Constitution is too difficult to change, and that is its downfall.

The Root Cause

Amending the Constitution is extremely difficult. Article V requires two thirds of both Houses, or two thirds of the legislatures of the States, to agree to simply propose amendments. Then three fourths of the States must agree to enact anything. This has led to the Constitution being changed only 27 times, and only 15 times in the last 200 years. That’s far too few for such a long-lived Republic. In contrast, the Connecticut Constitution (written in 1818) has been amended 31 times; the Ohio Constitution was effectively rewritten completely in 1912; and the Colorado Constitution has been amended an astounding 152 times. The French have rewritten theirs outright multiple times, the last in 1958, and it has been altered 24 times since then. And as far as the UK goes, well, I don’t have enough time to navigate that maze of constant evolution. The U.S. federal government is clearly an outlier when it comes to revision.

I will admit, there are some benefits to having laws that are difficult to edit. Stability and consistency are important to a civil society. Many countries have capricious laws, with whichever tyrant assuming power rewriting everything to punish the “other side”. There is great comfort in having a solid system of laws that the people can understand and navigate. However, I challenge that it is a far greater risk to have an unchanging, unyielding system of laws, especially in a democratic society.

An Immutable Government

There are several reasons why I suggest this, the most obvious being the practical one. Situations change in 200 years. There’s no way that even the wisest man can predict the effects of a written paragraph two hundred years into the future. Concepts once of high import can become irrelevant. Unforeseen issues can crop up. Even the meanings of words and the application of grammar can change in 200 years. There was no way they could predict the affect of the Internet on free speech or the press. There was no way they could understand that muskets would evolve into assault rifles. It was doubtful they even foresaw that Europe would no longer be controlled by monarchs, or a United Nations would be possible, and in no way were they prescient enough to foresee a world facing the threat of nuclear annihilation.

Then there’s the problem of the courts. Having an inflexible Constitution gives the courts far too much power. The courts rely on one thing above all other, and that one thing is precedent. Every interpretation, every ruling, unless countered through an appellate process, becomes a precedent. This is especially true of the Supreme Court. The Supreme Court is the adjudicator of how this ancient document applies to modern situations, and those judgements become unyielding precedents. And frankly, some of these rulings (Citizens United v. Federal Election Commission, for one) are terrible. Terrible precedents not only linger, they linger for a long time. Consider the worst ruling in the history of the Court: Plessy v Ferguson. That magnificent “precedent” stayed the law of the land … for 60 years! That’s three generations of opportunity lost for millions of African-Americans, all because of the inherent racism of the courts in 1896. But precedent it was, and precedent is God. The people never had a say otherwise. The largest counter, the greatest check-and-balance, to the Supreme Court is the ability to amend the Constitution. Yet that is a nearly impossible task. (Side note: Plessy was never explicitly overruled, it just got squeezed into oblivion by various civil rights rulings in the 50’s & 60’s.)

The Philosophy of Democracy

Finally, there are philosophical problems surrounding an unyielding Constitution. The first seven words of the document state “we the people of the United States”, yet that is no longer true, is it? It is “the long-deceased people of the United States”, who wrote the thing, for their people, in their time. It’s not for us, in our time. We have no ownership, no responsibility for it. It’s a relic of days long past, not a document of the present. It’s almost taken religious significance at this point, something to be held in absolute reverence. This makes us adherents to it, followers of its mandates, instead of us being its master and keeping the fate of our country in our hands.

In 1787, George Bryan, former governor of Pennsylvania, wrote an editorial in the Philadelphia Independent Gazetteer. He spoke, at length, about the immutability of the Constitution. “This appears to me to be only a cunning way of saying that no alteration shall ever be made; so that whether it is a good constitution or a bad constitution, it will remain forever amended. […] The consequence will be that, when the constitution is once established, it never can be altered or amended without some violent convulsion or civil war.” Of course, that is just what happened: it took a civil war for the passing of the first three, and the most significant, amendments since the first 20 years of the nation’s founding.

Bryan continued “If the principles of liberty are not firmly fixed and established in the present constitution, in vain may we hope for retrieving them hereafter.” Here’s an example of a liberty that is not fixed and established: the right to privacy. It’s not in the Constitution, only vaguely implied by stitching together other clauses. It should have been delineated in the Bill of Rights. But nobody thought it would be necessary. And now we have serious privacy problems in this Internet age. We’ll never get that particular liberty.

Bryan also foresaw the problem of entrenched power, a problem we certainly have today, with our lifetime Supreme Court appointments and members of Congress able to serve, unchallenged, for decades. “People once possessed of power are always loth to part with it; and we shall never find two thirds of a Congress voting or proposing any thing which shall derogate from their own authority and importance.” The Congress will never agree to term limits, or a balanced budget amendment, or anything else to reduce their power.

So this is where we sit. A document in a shrine, revered and immutable. An entrenched two-party system. A disengaged electorate, unable to set its own direction. An insurrection in the very halls of Congress. If the 3/5ths Compromise was the Constitution’s original sin, the stringent requirements to amend the highest laws of the land is its original flaw.