Suppose you’ve got corn and I’ve got cows.
Even if we’re the best and friendliest of neighbors, we need a fence between us. And suppose that, despite the fence, my cows get across and eat your corn. I say, “Just put the cows back. There’s no problem.” The cows get across again, and I say, “Cows used to stay where you put them. I don’t know what’s wrong with cows these days. Anyway, put them back. There’s no problem.” And then the cows get across again, and I say, “Well they wouldn’t get across so often if you didn’t plant your corn so close to the edge of the field. You can’t really blame the cows when you tempt them so. But just put them back. There’s no problem.”
How many times can this be repeated before we admit we have a problem? We can blame the cows for a while. We can blame the victim for a while. Heaven forfend, we could even blame me because the cows are mine. Sooner or later, we need to admit to each other that the fence isn’t good enough to do the necessary job it was intended for.
Constitution Day (Sept 15th) is set aside each year to remember America’s foundational law. On that day in 1787, delegates from the 14 states (the original 13 plus Vermont) approved the new Constitution after a year-long debate. It has been amended 27 times, but hasn’t changed fundamentally in 228 years.
We were taught in school that the “separation of powers” is a great concept. The Constitution divides power between the legislative, judicial and executive branches, and consequently America has never had a king. But the Constitution doesn’t distribute power much. It keeps it in Washington DC, far from the people. If you read the Constitution you’ll see that the document is almost entirely about federal powers. The states and the people are mentioned once.
The Constitution defines federal powers, but doesn’t do much to limit federal power. The authors weren’t concerned with limiting federal power, but with fixing the very weak central government that existed at the time. They gave the new Constitutional federal government some blank checks, such as the “necessary and proper” clause in Article 1:
The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
By 1791 (just four years after the Constitution was adopted) James Madison was convinced that the necessary and proper clause was too vague and gave the federal government too much power. Subsequent history has proven him right. The necessary and proper clause has been used many times to justify expansion of the federal government.
We were taught in school to admire the extraordinary wisdom of the founding fathers. If the founders were wise we ought to heed what they said. And like Madison, many of the other founding fathers doubted the Constitution would endure. Benjamin Franklin was asked as he emerged from the final session of the Constitutional Convention what sort of country the US would become. Franklin answered, “A republic, if you can keep it.”
Thomas Jefferson said the country would need a new constitution every generation or so: “Every constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force, and not of right.”
According to Jefferson’s figuring, America ought to be on its 12th constitution, but we’re muddling along with the same old one long after its expiration date. As president, Jefferson had a “take it or leave it” attitude toward the Constitution. He waged war against Barbary pirates in 1801 without a congressional declaration of war. He exceeded his authority to make the Louisiana Purchase. He never let the Constitution get in the way what he thought was right.
The founding fathers despised political parties. John Adams spoke for many when he wrote, “There is nothing which I dread so much as a division of the republic into two great parties. . . This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution.”
Who can deny that America today is run by two great parties? Thus, the thing the founders dreaded most has happened!
The Constitution purposes to make “a more perfect union” and to “provide for the general welfare.” But income inequity in American is wider than at any other time in living memory. There has been no improvement in purchasing power for the median American family over the past 30 years, and only slight gain in the past 50 years. (See chart below) One out of seven Americans lives in poverty. Two out of three Americans think the country is moving in the wrong direction. Only one American in 10 trusts the Congress. The Constitution didn’t cause these problems, but it hasn’t “provided for the general welfare” either.
We like to think of the Constitution as the rock-solid foundation of our culture and society. A more apt metaphor would be a tree. The small seed that was planted in 1787 has been harried by winds from the left and the right, and frazzled by pests of various kinds. It still stands, but it has grown gnarly.
Some branches of the tree are strong. The first amendment freedom of speech keeps pornographers and the Westboro Baptist Church in business. Upholding extreme opinions is really the only thing the first amendment does, since ordinary opinions don’t need such protections. I’ve lived much of my life in parts of the world where no explicit freedom of speech exists, and I found that ordinary people there have their opinions just like we American do.
Another strong branch of the tree is the second amendment, keeping the bullets flying. This is perhaps the most clear-cut case where the Constitution stands in the way of what the American people reasonably would do if they were free to govern themselves.
Much of the Constitutional tree has weakened over the years. The Fourth Amendment guarantees “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” That’s what it says on the document, but the NSA reads your emails. And even if government snooping were stopped, there are private companies that also read your email and monitor your spending in order to target advertising at you. The fourth amendment guarantee is empty.
The 5th amendment situation is even worse. It is supposed to ensure due process in order to defend freedom and property, but it has been stood on its head to justify driving people out of their homes to benefit commercial developers.
The 10th Amendment guarantees that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This sounds like a useful tool to balance local interests against the federal power. And there is a movement of people calling themselves “Tenthers” who say strong enforcement of this clause can fix what’s wrong in Washington. But how can the tenth amendment constrain federal power when every question about the limit of federal power gets decided by an agent of federal power?
Setting the country on the right path must begin with changes to the Constitution. That hasn’t happened yet, but it is becoming a more common notion. State legislators vote their support for a new constitutional convention in most years.
Many people fear tampering with a “good thing.” Writing a new foundational document needn’t jeopardize all that we value. We can keep majority rule. (Or perhaps I should say “reinstate” majority rule, since we don’t really have that now.) We can strengthen individual rights. We can limit the federal government to doing a few important things well instead of muddling everything. We can put most decisions back in the hands of states and communities.
Of course, there’s a huge and fascinating question of how this tremendous change could take place. For starters, I would recommend “Anywhere but Washington; anyone but congress.”
Some people say we just need to get back to the Constitution as it was written. But everything that happens in America happens under that Constitution. Amateur interpretations of what the law “says” don’t have much influence while big money pours into Washington and while the inmates run the asylum.
Georgetown Law Professor Louis Michael Seidman wrote in a New York Times editorial in 2012: “Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse.”
University of Texas Law Professor Sanford Levinson has written, “Our Undemocratic Constitution” showing how the document undermines democracy. Levinson refutes those who say anything wrong with the Constitution can be fixed by amending it, and he shows how small number of people (such as congressional committee chairmen) can thwart the will of the majority, and how certain institutions and processes make amending the constitution ever again unlikely. He points especially to the US Senate, where each state has two members regardless of its population. Since 34 votes are enough to block any legislation, the members from the 17 smallest states (representing only about 20% of the nation) can stop anything the majority wants. That isn’t democracy!
I agree with Seidman and Levinson. I agree with Madison, Franklin, Adams and Jefferson. Who’s side are you on?