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Posts Tagged ‘U.S. Constitution’

The Problem with the U.S. Constitution

Posted in history, Uncategorized, tagged , , on February 9, 2021| Leave a Comment »

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.

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Happy Independence Day!

Posted in Uncategorized, tagged , , , , on July 4, 2009| 2 Comments »

A Difficult Birth

I watched HBO’s excellent mini-series “John Adams”, about the famed patriot and second President of the United States. As I posted waaaaay back in December of ’07, John Adams is my favorite Founding Father, and I think HBO did him justice, flaws and all. Beyond a fairly accurate portrayal of Adams himself (although I do think HBO downplayed the staunch religious beliefs shared by John and his cousin, Samuel Adams), the mini-series gave a very accurate portrayal of the nation’s gritty past.

John Adams

There’s this great mythology around the birth of this nation. We have this image, inspired by John Trumbull’s famous painting, of nattily-attired statesmen, gathered in a great hall, proudly proclaiming our independence for all the world to hear. Unfortunately, that image is not at all accurate. I won’t go into all the factual details here, sites like Americanrevolution.org describe them well enough. I do want to go into what our vaunted image, and even a nitpicking of the facts, does not convey, and that is how risky and dangerous, and messy and complicated, the birth of this nation really was.

This was such a dangerous endeavor that the members of the Continental Congress were rarely, if ever, all present at the same time. They would appear in shifts, as it were, with individual representatives of a colony present but almost never a full quorum of a delegation. Some of the notables, like the Adams cousins and William Ellery of Rhode Island, had open warrants for their arrest by the British colonial government long before the 2nd Continental Congress convened, and would certainly have been hanged if they were caught travelling to Philadelphia. Almost the entire New York delegation would be missing at times, most of those delegates lost home or property, and the wife of one (Francis Lewis) was captured and held prisoner by the Brits for many months during the Revolutionary War. This type of personal danger is almost never conveyed in American mythology.

John Trumbull Painting

There were also health and transportation problems. Yellow fever was not uncommon in Philadelphia in those years, and travel was risky. British blockades and privateers made sea travel dangerous, forcing travel over land. It took weeks if not months to ride the roads to Philadelphia, and in some circles families would weep from grief if loved ones had to travel, it was so dangerous. Remember this was the early days of America, cities were small and far apart, and there were great tracts of land void of civilization and comfort. It wasn’t the highly developed contryside that marked Europe in the 18th century, this was something far wilder. Getting all these great men to Philadelphia to draft the Declaration, create and fund a Continental Army, and plead for help from France and Spain was not an easy affair.

After the Revolution, things were still sloppy and complicated. There’s a sordid mess surrounding the crafting of the Constitution itself. Yes, it’s a beloved document and has served us well, but in reality, it was a contentious and difficult document to craft. The nation first had to go through the sloppy failure of the Articles of Confederation, a configuration so weak it nearly allowed the 13 states to break apart or, even worse, rejoin Great Britain. It was not easy to keep the Union together, and in the end, the only way to guarantee continued independence as well as undivided strength was by guaranteeing the continued enslavement of an entire race of man for decades thereafter.Constitution

People shouldn’t forget that our founding fathers enabled that greatest of travesties, but in a way, these men were forced to do so in order to avoid becoming servants again, through dissolution of the Union and potential reconquering by Britain.  I’m sure that last sentence can be debated: what if our founders banned slavery in 1787? Would we have been split into two, or perhaps more, nations? And would that have been a bad thing? It’s an interesting debate, but the fact still stands: slavery stood for 89 years after the Declaration of Independence  was first read to an assemblage in Philadelphia. All men created equal? Hardly, it would appear.

In my opinion, it’s vitally important for all Americans to understand that we are a flawed nation. We had a difficult birth and a flawed childhood and, to this very day, we struggle and wrestle and fight with our greater ideals and our conscience. We’ve fought unjust wars, we mistreated our own citizenry, we’ve “prospered” ourselves into great poverty, and we’ve poisoned our waters and air and land. But we’ve also had successes: we freed Europe from the ravages of war, our scientists have stopped polio and invented transistors, we’ve created unique and beloved forms of art and music, and we’ve been an example to the world in terms of freedom and liberty. Best of all, we’ve managed to survive and thrive in spite of our great mistakes and failures.Revolutionary War Collage

Success and failure, failure and success. Hmmm, sounds like we’re human. And part and parcel of being human is being flawed. It can be said that the greatness of a person can be judged by how well that person responds to his or her own failure. We all make mistakes, and we all have to learn from them and overcome them. This is true for people and true for nations. Those who think they themselves, or the United States of America itself, are incapable of making mistakes and deserve continuous adulation are not only inaccurate but incredibly arrogant.

It has always been my view that arrogance is the worst human characteristic. Arrogance, that belief that you can do no wrong and can make no mistake, is that characteristic that prevents you from ever learning anything. And the inability to learn guarantees an inability to succeed and thrive. It’s a flaw that guarantees stagnation and eventual irrelevance. Individuals should strive to never be arrogant in anything, even those things in which you are an expert. Nations should also strive to never be arrogant, even in areas in which that nation has succeeded in the past.

If I could ask all Americans to do anything for this country, I would ask them to be honest with our country’s flaws and failures, and strive to continuously improve the health, welfare, and integrity of this nation and all of its citizens. Only through understanding of our flaws can we ever improve our lot in life.Long May She Wave

I hope everyone had a happy, fun-filled Independence Day weekend, and I wish nothing more than a just and prosperous future for the United States of America on this, the 233rd anniversary of it’s birth.

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I know I haven’t been posting regularly as of late. There have been a few real-life issues keeping my muse at bay, or perhaps in full retreat. Regular postings of my National Park trips will resume shortly, I promise.


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