« Blasphemy! | Main | Takedown of the Day »
March 15, 2007
More Constitution Bashing!
A reviewer to Sanford Levinson's book critiquing the Constitution writes:
I can only thank the good Lord that we have Sanford Levinson to correct the fools who thought that they had a workable document that only got us through a bit under 250 years. Too bad he wasn't around back then--I'm sure that the Founding Fathers would have sat up and taken notice of his clearly superior genius.
I can't speak for Levinson, but yes, I could totally write a better constitution. Know why? I have 250 more years of historical knowledge and contemporary context with which to ensure it's applicable to modern times. For instance: I could write a way clearer 2nd amendment, and I'd limit judicial terms to 12 years, and I'd make the electoral college go bye-bye. Editing is easier than writing. Someone can give me a document I lack the capacity to even understand and, by changing a few commas, correcting a run-on sentence, and adding a footnote, I could make it better. You don't have to be smarter than the Founding Fathers to approve on their model.
That said, my wise, forward-thinking commenters are surely right that there's absolutely no way our current moment of hyper-polarization and cable news could create a better document. Of note here is that the Constitution was created by a group of highly select elites with basically similar class interests (though wide philosophical disagreements) and very little public input. For better or worse -- and in no small part because of the Constitution -- things are more democratic these days, and no such construction process could be replicated and then deemed legitimate. When you open the process up, it turns out women, and minorities, and the poor, have somewhat different demands, and that makes life unwieldy. Constitutions need to be wieldy.
March 15, 2007 | Permalink
Comments
that should be "improve" on their model.
Posted by: rigel | Mar 15, 2007 1:47:39 PM
When you open the process up, it turns out women, and minorities, and the poor, have somewhat different demands, and that makes life unwieldy. Constitutions need to be wieldy.
WHAT???
Sorry, I'm not buying this. It's entirely possible today to write a constitution and include the input of the citizenry beyond the white, male upper classes. Sure, the process would have to be different--we couldn't do it in secret, in a hot room in the summertime in Philadelphia.
But we're not gonna get a new Constitution any time soon. This isn't 1787, and we're not surrounded by hostile and militarily aggressive neighbors (Britain, Spain, and France), facing a situation where our nation is literally falling apart because our existing constitution is too badly written.
The reason we're not rewriting the Constitution is because ours is, while not perfect, still good enough. Rewriting a Constitution is the political science equivalent of a heart transplant--you don't do it just because you have a heart problem, you only do it when you're facing certain death otherwise.
But if we had to rewrite our constitution, we could (and should) certainly do it with the representation of women, minorities, and poor people. Your argument sounds like a modern-day version of an royalist.
Imagine how terribly unwieldy it must have seemed in 1780, this idea that any man could be President, or Senator, or a Congressperson, regardless of his parentage or birth or religion. Imagine letting a multi-religious bunch of high-born and low-born men create their own system of government! That's just a recipe for chaos!
So, we're definitely not re-writing the constitution today. But let's be clear, if we had to re-write it tomorrow, if would be appropriate and good and vitally important to have more groups in the room than rich white guys. Otherwise, the thing is just gonna fall apart.
Posted by: anonymous | Mar 15, 2007 1:58:00 PM
rigel, editiing is easier, dontcha know? ;)
Posted by: TJ | Mar 15, 2007 1:58:10 PM
Oh, an Amazon reviewer. Never mind.
Posted by: norbizness | Mar 15, 2007 2:27:30 PM
Rewriting a Constitution is the political science equivalent of a heart transplant--you don't do it just because you have a heart problem, you only do it when you're facing certain death otherwise.
Actually the experience of others (France, for one) suggests that a new Constitution comes after the death of the existing government (through revolution, junta takeover, or defeat in war).
My favorite riding pony for the new Constitution:
We say (in the courts) that prosecutors and defense attorneys are 'officers of the court'.
So, I'd have Attorney's General and US Attorneys in the district appointed by the courts, not the executive branch, or courts nominate, and legislative branch confirms. No more political appointments (and serving at the pleasure of the President) for US Attorney General - the system that brought us Gonzales, Ashcroft, Ed Meese, et al.
But we have the Constitution we have, for better or worse, and trying to change it with the existing status of powers in the country would very likely make it worse. Presumption of Innocence, Free Speech, etc. would be out the door.
Posted by: JimPortlandOR | Mar 15, 2007 2:32:17 PM
Editing is easier than writing.
Yes, but weren't the ambiguities deliberate? I don't think the Constitution needs a copy editor as badly as you think.
Part of why the Constitution has proven so remarkably versatile was its drafters' understanding that making everything streamlined and oriented for pure majoritarian politics would result other forms of tyranny.
Yes, it was drafted by dead white men, but even the dead white men thought in terms of competing interest groups - replace your reference to the poor and women to the the post-Revolutionary rivalry between southern farmers and northern merchants.
The constitution's implied message is that no method of government can objectively tell you what the right decision should be - it was written under the theory that the best decisions came from the people, filtered through debate and balanced by institutions not as prone to instant change.
Better to have thorough debate amongst the interest groups than to simply assume that the right answers inevitably come from majority votes.
DU
Posted by: The Mechanical Eye | Mar 15, 2007 2:33:13 PM
I have 250 more years of historical knowledge and contemporary context with which to ensure it's applicable to modern times.
Or so you seem to think. (Couldn't resist.)
I could write a way clearer 2nd amendment
Excellent. Show us.
I'd limit judicial terms to 12 years
Why? I don't like term limits.
I'd make the electoral college go bye-bye
I don't think that's a good idea.
Are you really so sure you can so easily improve the points you mention?
Posted by: Sanpete | Mar 15, 2007 2:38:34 PM
Ezra,
Again, I must respectfully disagree. Is it a better constitution or just a narrower constitution? Once you've clarified everything you want to there is no room to wiggle. We need that wiggle room.
Second Amendement not clear? Good, it's not supposed to be! Full Faith & Credit have you confused? Everyone else too my brother. We interperate these things as appropriate for our localities and general social and moral backgrounds. As we advance and develop we realize some things aren't right. The advantage of a more open ended, unclear, constitution is that we can correct defects as we come upon them without the need to amendment after amendment or editor after editor.
What if you "edit" the consitution and 100 years from now it's out of date? Do you rewrite it again? Does someone else make the edits? Who gets to pick?
Well, in a perfect world that might be nice, but in a perfect world I would be a Libertarian because we would never have to worry about the poor or the sick or the uneducated and their wouldn't be arguments on abortion or gun control because there would be no unwanted pregnancies and anyone who wanted a gun would use it appropriately.
Ezra, you are normally very insightful, but this time you are being a little dense. Again, not saying the constitution is perfect but I doubt you could make it so. And implying that "editing" it will make it better shows, in my opinion, little understanding of the law, how it's created and what effects even the most minor change might have on the interpretation of it.
Read it again. It may be a flawed document, but it is a brilliantly constructed flawed document.
Posted by: Kate | Mar 15, 2007 2:44:48 PM
We could rewrite the constitution today and it would probably be a bit better for today's world. But I doubt the cost/effort would outweigh the benefit. And I doubt it would be much better 100 years from now than what we already have.
Posted by: DM | Mar 15, 2007 2:51:36 PM
I echo statements made by The Mechanical Eye. The openness of The Constitution may be exasperating in many respects, but it was a wise approach on the part of the drafters.
Sure, lots of folks could improve (or at least update) the writing of The Constitution, but it's not exactly a piece of creative writing for our idle enjoyment. It's a working document. If any one person took a stab at rewriting it with a mind toward "improving" it, doubtless it would be an improvement for his or her political agenda but probably not so much so for competing agendas. It's a recipe for tyranny, in short.
And importantly, governance by committiee is what gave us The Constitution, so it was an exercise in compromise on all levels. Sure, they gave themselves the authority to write it (who else would have conferred that authority or bothered with the task?), which was only recognized after the fact. So what?
All that said, sure, let's change The Constitution, but through means delineated in the document itself: amendment. Unless, of course, we'd rather abandon it in favor of anarchy or a military coup until the powerful, in their magnanimity, vest the power of government back in the people. (Fat chance!)
Posted by: Brutus | Mar 15, 2007 2:53:44 PM
I don't think the issue is whether we could make a better Constitution today. (Clearly, some individuals could easily do so, but collectively there's no chance that those individuals would end up being the ones given the chance.)
The issue is whether credit for the success of the Constitution belongs to the Founders, or to the particular people who have operated each branch of government for the past two centuries, especially the judicial system. That is the issue, because the degree of leeway future generations should give themselves in interpreting the document is and probably always will be a live controversy. It's not an argument between 1787 and 2007, it's an argument between the guys who wrote the text and the guys who have interpret and implement the text for the past 220 years. We don't need a new text (we don't even need new amendments!), we just need better interpreters and implementers.
One can argue that the brilliance of the Founders was that they let things be vague enough that the system they set up could adapt itself as commenters here do, and I agree it was the right thing to do, but it was a matter of temporary necessity, not far sighted wisdom. We were all just lucky that those happened to coincide in this case--they usually don't (and probably wouldn't if we tried to write another constitution today) which is why new constitutions don't usually last as long as ours has.
Posted by: Consumatopia | Mar 15, 2007 3:27:18 PM
The issue is whether credit for the success of the Constitution belongs to the Founders, or to the particular people who have operated each branch of government for the past two centuries, especially the judicial system.
Both.
it was a matter of temporary necessity, not far sighted wisdom
Again, both.
Posted by: Sanpete | Mar 15, 2007 3:37:07 PM
Ezra, it's clear from your examples that you really don't know very much about the constitution, whose major flaw is that the Senate is a profoundly anti-democratic institution - see Caro's Years of Lyndon Johnson, Vol. III. And if you want to understand the electoral college - which you clearly don't - I strongly recommend that you read Garry Wills' "Negro President."
PS- It's hilarious that you think you could improve on the grammar and punctuation of James Madison and Alexander Hamilton, who were on the committee that flyspecked the final draft. Perhaps when you're done you can turn your attention to Shakespeare.
Posted by: bloix | Mar 15, 2007 4:07:27 PM
Too bad he wasn't around back then--I'm sure that the Founding Fathers would have sat up and taken notice of his clearly superior genius.
This line of argument, which is echoed in some of the comments here, is pretty silly. No one doubts, e.g., that Kant was a genius of the first order, perhaps the greatest philosopher who ever lived. But at the same time no one doubts that the legions of lesser philosophers who have studied and critiqued Kant have exposed any number of discrepancies, inconsistencies, and outright fallacies in Kant's work.
Another thing to keep in mind is the value of the Constitution comes in large part not from the work of the founders but from what the nation has subsequently made of the Constitution. If you like the way the Constitution has worked out, don't forget to thank the Supreme Court, or those who passed the 14th Amendment, etc. etc.
Posted by: Jason | Mar 15, 2007 4:24:06 PM
Bloix - insulting much?
Just what is there to defend the electoral college? The system is terribly unweildy and could easily (like, say, just for instance, if the Supreme Court didn't in a spurt of activism step in and stop the system from working as designed) lead to one state REALLY messing up the results, or, say, throw the election of the president to the US House where each state would get one vote (yep, that's some equal representation democracy for you - given that California's population is something like 70 times that of Wyoming's). And of course that's before we get into little matters like unfaithful electors and the problems that could stem from a presidential candidate dying at an inopportune time (as long as we're recommending political fiction - how about Jeff Greenfield's "The People's Choice" on this topic).
Posted by: Armand | Mar 15, 2007 4:27:47 PM
Oddly enough, despite the sanctity surrounding our Constitution's age and vagueness, free and democratic societies have occasionally rewritten their constitutions without collapsing into a new dark age. They have often made it much more specific, too. Granted, we might have to wait a few more years to see if Switzerland falls into anarchy after overhauling their federal constitution in 1999.
Personally, I'm willing to accept the flexibility of our comparatively barebones document, or even view it as a strength, allowing for an evolutionary "common law" approach with which the Founders were well familiar. But many of those idolizing the Founders nowadays also espouse "strict contructionism" and rail against "activist judges." Apparently, they view it as an exhaustive, finished work with no flexibility allowed...when they're not completely ignoring articles and amendments they don't like. Hence my skepticism of reflexive Constitution veneration.
Posted by: mds | Mar 15, 2007 4:31:35 PM
I am not sure that the Constitution could be improved because of 230 years of hindsight. There are several other issues that stand in the way of such an improvement.
One glaring issue stands out in plain view. It is that there are too many ingrained agenda's rolling around in this great country of ours to produce any consensus of ideas. These agenda's are powerful and have thousands of people supporting their proliferation. It seems that everyone has a cause to support. I am wondering what ever happened to the majority. It might be because of splintering of those large issues into numerous small issues and causes. What remains is not a majority at all but many minorities that will never be able to agree on anything. This is a sad state of affairs and one in which the meaningful update of our present Constitution would probably be impossible. You just would not get a majority to support any changes at all.
With respect to our founding fathers, it is important to note that they were not career politicians and were not usually tantalized by a large amount of power. This was due to the fact that most of them already had most everything a person living in those times would want or desire. Many worked for nothing and spent a short amount of time during the year enacting legislation. This legislation I personally feel was brought forth from the heart. I believe they had a real desire to promote the success of this country and its people.
Today it seems like all the politicians do is wallow in self-righteous causes and embark on significant but misguided actions that use large amounts of time and taxpayer money to improve their fifteen minutes of fame. All you hear from them are words like fight, win, attack, beat up, wrong, mean spirited, conspiracy and on and on and on. Whatever happened to lets help the people?
So, to say all you have to do is update the Constitution using today's values and current thinking is just plain incorrect thinking. It would probably be a monumental undertaking at best.
Remember the current Constitution has lasted well over 230 years. Where are the great thinkers in this country that could amend it to last another 230 years. If they are around would they please stand up because I do not see them.
All I see are thousands of lawyers professing an understanding of the law according to themselves and possibly tea leaves. Don't you just love the living Constitution idea? Whatever mood or thoughts you have on a certain day is what the Constitution says. This kind of thinking has done nothing but anger everybody. Talk about you can't please everybody, this kind of thinking does not please anybody.
I am nobody and therefore am not in the mainstream of thinking. I do represent, however, the largest majority of this country and that is the nobody's of the USA.
Posted by: chisholm | Mar 15, 2007 4:33:33 PM
Another thing to keep in mind is the value of the Constitution comes in large part not from the work of the founders but from what the nation has subsequently made of the Constitution. If you like the way the Constitution has worked out, don't forget to thank the Supreme Court, or those who passed the 14th Amendment, etc. etc.
But that is precisely my point Jason. The framework of the Constitution makes us able to use the Supreme Court to claify these types of issues and allows us to ad the 14th Amendment. Narrowing the Constitution would just prevent us from molding the document to what we need it to be within the framework of our society.
Posted by: Kate | Mar 15, 2007 4:38:53 PM
I'm not sure exactly what you mean by 'narrower', though. The Constitution could be changed to be both clearer and broader.
For instance, it kind of sucks that we are only a S. Ct. appointment away from abortion losing its status as a constitutionally protected right, despite the fact that the majority of people believe it should be. It would be nice to actually have abortion rights expressly written in to the Constitution so Clarence Thomas can't claim that he can't find abortion there. This would both make the constitution clearer on the abortion issue and would broaden the protections for individual liberties that it provides.
Posted by: Jason | Mar 15, 2007 4:46:52 PM
With respect to our founding fathers, it is important to note that they were not career politicians and were not usually tantalized by a large amount of power.
In the case of those who were slave owners, it is easy to understand why they were not so tantalized.
Posted by: WB Reeves | Mar 15, 2007 4:50:09 PM
Armand-
You can't make the 3/5th's clause work with direct election. (You'll recall that the 3/5th's clause counted slaves as 3/5ths of a person for apportionment purposes - thus greatly increasing the voting power of each enfranchised voter in states with high slave populations.) For the 3/5th's clause to work in presidential elections, you need an institution like the electoral college. That's why it exists. It's not because the Framers were idiots. It's because they had to compromise fundamentally conflicting interests.
The most painless and enlightening source of information about the electoral college - I feel that I'm repeating myself - is Garry Wills' study of the election of Thomas Jefferson in "Negro President: Jefferson and the Slave Power."
Obviously there is a lot of bad stuff in the Constitution. Most of it - like the Electoral College - is there because of compromises over slavery. You may know that the great abolitionist William Lloyd Garrison called the Constitution "a convenant with Death and an agreement with Hell." We got rid of the worst stuff 150 years ago, at the cost of 700,000 dead soldiers, North and South. Anyone who thinks that you can fix the Constitution with a pad and a pen should think about what it took the last time we made major changes.
Posted by: bloix | Mar 15, 2007 5:13:46 PM
I should fear that any constitutional convention would be an overgrown circus that would devote more time and energy to the constitutional status of homosexual marriage than it would to designing the legislature. Any group, if allowed to contribute to the constitution would likely devote themselves to securing, against the ability of later generations to easily change, their hobby-horses and own interests above the nature of the frame of governance, which I think should be the limit of any governing document's extent. A contemporary convention, especially if it is of a democratic character, might not draft so much a constitution as an immovable statute-book.
Our present constitution is the child of compromises and any new one would be that even more, thus I imagine it serving far less well and pleasing very few.
Posted by: Paludicola | Mar 15, 2007 5:18:58 PM
The reason we're not rewriting the Constitution is because ours is, while not perfect, still good enough. Rewriting a Constitution is the political science equivalent of a heart transplant--you don't do it just because you have a heart problem, you only do it when you're facing certain death otherwise.
I have to agree with most of your commenters here Ezra. The Constitution is an extremely well written document that has guaranteed our freedoms for centuries, now.
Rewriting the 2nd amendment, judicial term limits, no electoral college,... those are details. That's what Constitutional amendments are for. They allow gradual improvements over time, without throwing out everything else in the bargain.
Do you want a better Constitution or a neater one, without all the strikeouts and addenda?
Most of those who argue for a rewrite want to add restrictions, morals clauses, definitions of true Americans, limits to "obscene" speech. Imagine Dick Cheney or Bill Frist in charge of the rewrite. They have the same historical knowledge and contemporary context you do and I'm sure they could write something that's applicable to the "post 9/11 world".
I hear Newt Gingrich has some ideas for the First Amendment. Maybe you two should talk?
Posted by: Mikef | Mar 15, 2007 5:37:01 PM
The writers of the Constitution were sufficiently gifted at basic arithmetic to make the 3/5ths Rule work without an electoral college. The original point of the College was to have people smarter than the average voter selecting the President. That aspect is gone now, and that's good. The way the numbers were rigged to favor small states is still significant. That was required to get them to go along with the deal in the first place, so they wouldn't just be ruled by the larger states. Back then federalism was a more important idea than it is now, and I don't care as much about it in this context as many do, but I think it's still an advantage to the nation to have power divided among the states more evenly than by population alone. It keeps smaller states more involved, keeps them from being marginalized. It's another kind of protection from tyranny of the majority.
Posted by: Sanpete | Mar 15, 2007 6:07:46 PM
Of course, we are "re-writing" the Constitution every damn day, and not merely in amendments, or review and reinterpretation by the Supreme Court.
What we refer to as "separation of powers" -- the Constitution's major architectural feature -- makes the process of governing into a complex game, and many of the rules of that game are not in the text of the Constitution, but arise out of precedents in the way the game is played out.
The great U.S. Attorney Purge is a minor re-write of the Constitution in motion before our eyes. For over a century, the rules governing the appointment of U.S. attorneys parceled out that power between the President and the Senators of the particular State where a U.S. Attorney was to serve. Informally, a U.S. would be asked his Advice, and the President would appoint the Senator's choice; if the President defied the Senator, the appointment would not be confirmed by the Senate, and the law, in such a case of non-confirmation, put the appointment into the hands of a federal Judge. Little of that is written into the big "C" Constitution -- just a vague reference to the "Advice and Consent of the Senate" -- a phrase drawn from the constitution of the Roman Republic -- but, it is part of our small "c" constitution, nevertheless.
As long as the struggle, institutionalized by the separation of powers goes on, the Constitution, as it operates will evolve. In our polarization, we write it every damn day.
Posted by: Bruce Wilder | Mar 15, 2007 6:14:49 PM
The comments to this entry are closed.
