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March 15, 2007
Blasphemy!
Look, can we just admit that much of the Constitution doesn't make sense? The electoral college is totally wack, the second amendment is ambiguously worded, Supreme Court Justices are appointed till they drop dead AND somebody notices, etc, etc. What's worse is that I'm fairly sure the Founding Fathers, 250 years later, would agree that it might be time for some changes. But we can't, in practice, touch it. Because a bunch of land-owners sweltering in the summer beneath heavy wigs were gods, and American politics is nothing if not an occasional display of ancestor worship. One day, I want to write a negative biography of the Founding Fathers, going through all their peccadilloes and religious heresies and sexual oddities and plutocratic slip-ups and racist hypocrisy. It's not because I think they were bad guys for their time, but because we've got to drop this pretense that they're fit for ours.
March 15, 2007 | Permalink
Comments
In my more cynical moods, I tend to think the electoral college as originally conceived makes a whole lot of sense. It's this middle ground with bound electors that is "totally wack".
Posted by: Aaron Bergman | Mar 15, 2007 11:12:54 AM
I have to wonder in this age of hyper partisanship if we could do any better. Would you seriously trust us in this day and age with something this important? I say leave well enough alone and work with what we have. Their vision has gotten us this far, who are we to know better?
Posted by: Bill | Mar 15, 2007 11:13:57 AM
I agree with Bill that the question is whether or not any realistic process these days would come up with something better; it's certainly true that we could, but not at all obvious that we would. The ambiguity in the language of the Constitution has certainly been used to bad effect on occasion, but has often allowed the Court to do reasonable things that the Founders wouldn't have thought of.
Posted by: Sean Carroll | Mar 15, 2007 11:20:33 AM
> I have to wonder in this age of hyper
> partisanship if we could do any better.
That's the thing. For all their faults (and I think they would have been the first to tell you they weren't demigods) the architects of the United States lived in an Age of Political Theory. Despite our beliefs in ever-upward progress, it isn't always possible to recreate what was done in an earlier age under different circumstances (I think here of the works of the age of heroic mechanical engineering from 1860-1910; there were many things built/done then that could not be done by modern society [1] without tremendous, Apollo-project-like effort). Yes, those guys were mostly rich landowners - but they were also of independent means in way that is not possible today, were highly literate and deeply educated in political theory, and were able to work without CNN looking over their shoulders 60x60x24x7x52. I am not sure that such an environment could be recreated today, and I really don't want to see the "Second Constituational Convention at the AT&T Center, sponsored by Fox News"
Cranky
[1] In large part because we no longer have steel mills capable of producing the very large pieces that were used in such works [OK, they could be purchased from Russia, but even the Russians are dismantling much of their large-scale production facilities]
Posted by: Cranky Observer | Mar 15, 2007 11:22:30 AM
The founding fathers 250 years later would be aghast at how government has grown.
The document is flawed, but its fundamental principles are why to honor it. It's about the ideas, not the men.
Posted by: Anonymous | Mar 15, 2007 11:26:17 AM
The commentators are dead on. The problem is that while the Constitution is flawed, it is undeniably better than what we would arrive at today. Can you imagine what impact the Drudge Report and other right wing smear machines would have on the process? Ugh, it makes me sick to even think about it. A consitutional convention today would be lucky to come up with something twice as vague as the document we have now.
Posted by: IP Guy | Mar 15, 2007 11:29:29 AM
The electoral college is totally wack...
Not when you understand that this country was designed around federalism. States were to vote for president just as states elect representatives to protect their interests in the Senate. It really makes perfect sense until you take the core precept of federalism out of the equation.
...the second amendment is ambiguously worded.
True, preambles were common written language at that time. However, all one need do is look at the entire bill to discover that every other right in that bill is an individual right and not a "collective" right.
...Supreme Court Justices are appointed till they drop dead...
Stability. You can argue for elections or short tenures, but you will not have stability and you will probably have more politics than you would want.
...I'm fairly sure the Founding Fathers, 250 years later, would agree that it might be time for some changes.
Then use the mechanism designed to change it. The bar should be a high one, and it is. The problem you have is that you want half the country to cram it down the throats of the other half. Look, when we are all on board with an issue, it's not difficult to change the constitution. Slavery, Women's suffrage, even alcohol....ALCOHOL!!!! So get off the high horse about change. When the time is right, when we as a people are united for it, it will change. We've done it dozens of times.
I have to wonder in this age of hyper partisanship if we could do any better.
A very, very good point Bill brings to the table.
Posted by: Fred Jones | Mar 15, 2007 11:31:22 AM
But the brilliance of our constitution, and the reason it works so well (and regardless of whether you like some provisions or not, it has worked remarkably well) is that it is so vague and contradictory.
Look, I'm a liberal which means I view the constitution as a fluid document, subject to continual change. No hard-line right to privacy? But it's implied here and here and here (not linking because I have a life. Go read Griswald or Roe). Freedom of religion? But no express freedom from religion? In can be inferred. The whole genius of the document is that it is vague, it is general and it does leave room for interpretation and it leaves room for change. And who interprets? The Supreme Court who get lifetime appointments so that they can not be swayed by the political (and yes, this is not always true but more Justices than not have leaned more in one or another direction as they have gotten older. I hate the appointment of idealogs but have no issues with the appointment of “conservative”. Sandra Day O’Connor actually turned out pretty well.)
Democracy is the worst form of Government except for all those others that have been tried said Churchill, and I’m not denying that our constitution has problems as well. But it’s certainly the best of a bad lot and the issues you seem to have with it are part of what makes it so brilliant. If we don’t like something we can amend (but you have to have a pretty uniform consensus) and we can view the document through the prism of modern times. And I think that was very intentional on the part of the founding fathers.
Now, if they had only listened to Tom Payne, we liberals might have an original document we would have liked better, but Tom Payne was a wack-job (voting rights for women? please!) and who knows what kind of goofy stuff he would have wanted included.
Posted by: Kate | Mar 15, 2007 11:38:45 AM
Find me 10 Senators who read Latin & Greek and I would be optimistic. You may say it is not necessary, but a misreading of Thucydides may have helped get us into a war that killed a million people. I am absolutely certain the Founders would have been too smart to go into Iraq.
Yet you want Norquist and Alito at a table rewriting our basic principles.
They were secularists, erudite with varied experience. They had all put their lives on the line foor their country. They were flat out better than anyone I see in politics today. You apparently don't even understand the electoral college or why the 2nd Amendment is limited and ambiguous. I wouldn't let Jack Balkin or the rest of his crew anywhere near My Constitution.
Posted by: bob mcmanus | Mar 15, 2007 11:38:58 AM
Long ago I blogged here about how, on an excessively strict textualist reading of the Constitution, the Air Force is unconstitutional. Article I section 8 gives Congress the power to set up an Army and a Navy, but no power to set up an Air Force.
Posted by: Neil the Ethical Werewolf | Mar 15, 2007 11:39:22 AM
The history of constitutional change, contra Fred, hasn't exactly been encouraging. The system as set up gives great power to a recalcitrant minority to resist progress by the rest of the country. Which is how you got the Civil War, while parliamentary systems managed to abolish slavery quite peacefully as soon as a majority backed it.
The same could be said of the civil rights era. The fact that the US was the second-last industrialised nation to become a democracy (in 1965, decades after Britain, France, Italy, Germany, etc - the only one to take longer was Russia) could well be due to the constitutional setup.
Posted by: ajay | Mar 15, 2007 11:40:21 AM
The system as set up gives great power to a recalcitrant minority to resist progress by the rest of the country.
But for people like Fred, that's a feature, not a bug. Fred loves his (according to him rich) straight white male privilege, and you'll get it away from him when you pry it out of his cold dead fingers. Screw the homos and the wimmins and people without health care. In fact, screw everyone who isn't Fred.
Posted by: paperwight | Mar 15, 2007 11:47:09 AM
Ezra is a lot more pessimistic than he should be, but there is still plenty of room for pessimism.
The problem isn't a 200-year-old document. The problem is political constipation. Things changed plenty in the 1930's, with no textual changes to the Constitution. Things changed plenty in the 1960's, with a few textual changes. We can, for example, de facto repeal the electoral college through state legislation. The courts can repeal uncomfortable pieces of the Constitution, through the process of interpretation.
There is another problem, apart from constipation. The Constitution has been changing, quite actively. The courts pretty much repealed the Fourth Amendment already. Or do you know that--even though unreasonable bail cannot be imposed according tot the Eighth Amendment--there is no 8 Amdt. restriction on denying bail? The Constitution has been evolving quite a bit, in the direction of reaction. Of course, a moderate or lefty might not want to acknowledge this.
Posted by: Joe S. | Mar 15, 2007 11:50:35 AM
Oh Ezra, you strike at the very heart of the right's authoritarian worship. Careful, I see your name popping up on no-fly lists (maybe for you not such a bad thing) and I see Fred questioning your patriotism.
That said, I think there is something to the idea that we don't have more than a dozen or so people in elected office who could create something better.
I think the real answer is trying, in some way, to get back to system where honest representation is the real goal of the elected. We must get stooges for corporations and "special interests" out of the government. It's killing this nation. Sadly, the thing we need the most is the one thing the bush administration has been somewhat successful in raising, nationalism. The really sad part is, they created and festered the very worst type of it.
Posted by: ice weasel | Mar 15, 2007 11:59:45 AM
But for people like Fred, that's a feature, not a bug. Fred loves his (according to him rich) straight white male privilege, and you'll get it away from him when you pry it out of his cold dead fingers. Screw the homos and the wimmins and people without health care. In fact, screw everyone who isn't Fred.
What a moronic statment. What Paperweight wants is to push issues into the Constitution that we have not all agreed upon.
When the vast majority wants the changes he champions, and can muster the votes in a lawful democratic process, then I'm on board which is more than he will say of my proposed changes. That's because I value the democratic process more than my own agenda.
Paperweight would trash the entire system that we depend upon daily to selfishly get what he wants and devil take the ones that deal with it after he is long gone.
Posted by: Fred Jones | Mar 15, 2007 12:05:42 PM
When the vast majority wants the changes he champions, and can muster the votes in a lawful democratic process, then I'm on board which is more than he will say of my proposed changes. That's because I value the democratic process more than my own agenda.
Well, Fred, that just means you have no moral sense at all, doesn't it? You change your mind whenever a majority of people disagree with you? That's the sort of decision-making one expects from a weathercock. Where's your moral courage?
And, incidentally, does this mean you are now opposed to the Iraq war, like the majority of your fellow citizens?
Posted by: ajay | Mar 15, 2007 12:11:54 PM
One day, I want to write a negative biography of the Founding Fathers, going through all their peccadilloes and religious heresies and sexual oddities and plutocratic slip-ups and racist hypocrisy.
I hope you enjoy your career up until then.
Posted by: Stephen | Mar 15, 2007 12:14:54 PM
Well, Fred, that just means you have no moral sense at all, doesn't it?
That's not what it means at all. What it means is that I will work to change the law while respecting and honoring the democratic process. It isn't an either/or issue. A really good example is abortion on demand. I work to change the law now. However, I don't break the law as it stands.
And, incidentally, does this mean you are now opposed to the Iraq war, like the majority of your fellow citizens?
So now polls are a 'democratic process'? If the Kennedy, Pelosi and the rest of the Senate decides to leave the troops twisting in the wind, I will have to go along with it. We are a nation of laws.
If you're not on board with the system, then you're the problem.
Posted by: Fred Jones | Mar 15, 2007 12:24:57 PM
"I am certainly not an advocate for frequent and untried changes in laws and constitutions, I think moderate imperfections had better be borne with; because, when once known, we accommodate
ourselves to them and find practical means of correcting their ill effects. But I know, also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are
made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times....
We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." --Thomas Jefferson to
Samuel Kercheval, 1816.
Posted by: Anonymous | Mar 15, 2007 12:36:52 PM
Ezra, you are a bright guy but you're still a kid. The pleasure you take in believing that you are smarter, more moral, less odd, more sexually "normal," than some famous dead person is a symptom of adolescence.
Of course the Founders were not gods. They were human beings. The point is that they were extraordinary human beings. If you compare them to others who lived in their time, they are head and shoulders above them in courage, foresight, leadership, and selflessness.
There are plenty of things "wrong" with the Constitution. Most of them were perfectly reasonable compromises at the time. They weren't the result of stupidity- they were the best that was attainable.
There's a very old Peanuts cartoon, in which Linus and Schroeder are laughing at a picture in a newspaper. "Why are you laughing at it?" says Patty. "Because we don't understand it," says Schroeder.
If you think the Electoral College is dumb, then you really don't have a clue why it exists. You should read "Negro President" by Garry Wills.
If you think the Second Amendment poses a problem of collective versus individual rights, then you clearly don't understand the incorporation doctrine and the fact that, until adoption of the 14th Amendment, the Bill of Rights did not apply to the activities of state governments at all. Therefore the adopters of the 2nd Amendment were perfectly clear in their own minds that they were preventing the federal government from infringing the right to bear arms, but were not preventing the states from regulating that right.
If these are the only problems you can find in the Constitution, you should read the opening chapters of the 3rd volume of Caro's biography of Lyndon Johnson, "Master of the Senate," in which you will learn how the constitutional role of the Senate allowed a minority to keep us out of the League of Nations and prevented federal civil rights legislation, for two generations.
And do you really believe that the political leaders we have today would do a better job? The main reason we can't make the constitution better is that the only people available to do the job would be guaranteed to smash it up. Best to leave it along and live with the imperfections.
Posted by: bloix | Mar 15, 2007 12:38:50 PM
One day, I want to write a negative biography of the Founding Fathers, going through all their peccadilloes and religious heresies and sexual oddities and plutocratic slip-ups and racist hypocrisy.
I'm surprised it has not yet been noted that
Lies My Teacher Told Me has already addressed this to some extent. The focus of the book is not on the faults of historical figures as much as what that means to education and how we rely on myths (like American exceptionalism) more than facts.
Stability. You can argue for elections or short tenures, but you will not have stability and you will probably have more politics than you would want. - Fred Jones
Newer court systems such as the European Court of Human Rights acknowledge that there should be an age limit. There is a certain correlation between very advanced age and weaker mental acuity. Rehnquist was not stable. When asked by a reporter at his home whether or not he would announce his retirement based on his extreme health problems he responded with the playground taunt "that's for me to know and you to find out." One could argue that he was being humorous but given the importance and powers of the Supreme Court this seems an inappropriate response. One might even say it showed poor judgement.
On the subject of Constitutional rights: I always felt that one of the great unwritten rights is freedom of discretion. You have the right to start every comment (speech) with some kind of insult but you don't have to excercise it each time you post. Save the venom and negativity, let it age like a fine wine, and only bring it out on special occasions. It's so common, Fred, and I know you are a connoiseur at heart.
Posted by: GCF | Mar 15, 2007 12:51:15 PM
I really appreciate bloix putting this at the beginning of the comment:
Ezra, you are a bright guy but you're still a kid. The pleasure you take in believing that you are smarter, more moral, less odd, more sexually "normal," than some famous dead person is a symptom of adolescence.
That way I know the rest of it is going to be a bunch of self-satisfied horseshit without having to subject myself to actually reading it.
Posted by: Stephen | Mar 15, 2007 12:54:44 PM
It's not because I think they were bad guys for their time, but because we've got to drop this pretense that they're fit for ours.
I have to demand special exception for Ben Franklin here. If Franklin were alive today I think the world would be quite more awesome a place.
Posted by: August J. Pollak | Mar 15, 2007 1:00:04 PM
Newer court systems such as the European Court of Human Rights acknowledge that there should be an age limit.
So what? There are many legal differences between what we do and what they do. There are probably those in Europe that argue just the opposite that the Americans understand what Europe just doesn't get.
What makes them right and the US wrong?
Posted by: Fred Jones | Mar 15, 2007 1:05:53 PM
Ezra, I think that if you take the time to look at what you are saying, you will realize that what you are advocating here is exactly the danger that our Founding Fathers wanted to avoid: blatant partisan hackery taking over the country.
Look at the issue that led you to go on your little tirade: gun control, one of the most partisan issues out there. Imagine, for a moment, you came across a Christian web site where they were discussing the absence of, say, a definition of marriage that outlaws homosexual marriage in the Constitution, and they went on a rant about how the Constitution might have been good for its time but it is not good enough to meet the needs of our time? You would probably be able to recognize then that these people are partisan hacks who want to take over the country to remake it in their own image. But in that case it wouldn't be a very good thing, would it? At least not in your eyes.
Let's face it, there are people of all sorts of different opinions in this country about different issues. The purpose of our government and the Constitution is to try to balance these forces out so that no particular group gains complete authority over the nation. This country was founded on the principle of limited government. While this has gone by and large by the wayside, those principles are still built into our system somewhat and they still serve a purpose: keeping partisan hacks like yourself from taking over and destroying everything that the United States of America stands for.
Posted by: Shoelimpy™ | Mar 15, 2007 1:06:36 PM
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