They The People

“If Aristotle, Livy, and Harrington knew what a republic was, the British constitution is much more like a republic than an empire. They define a republic to be a government of laws, and not of men. If this definition be just, the British constitution is nothing more nor less than a republic, in which the king is first magistrate.”ⁱ

That was then. 1775. Fourteen years later the United States also became a nation of laws, not men, when a constitution was written. True, there had been laws but they were not considered to be adequate. So a convention was called in order to correct the problems of the Articles of Confederation but those assembled produced a new, and far more effective instrument. It is the Constitution of the United States, under which we have lived for two and a quarter centuries.

It wasn't perfect. It was a compromise document. No one was completely happy, but all accepted it as the best they could get at the time. At the time. That's what a compromise is. There were conflicting opinions and competing “parties”ⁱⁱ and, in order to compose a document that would get the backing of enough of the participants, it was necessary to include the views of all of them – at least to some degree.

And, in order to get a sufficient number of the new States to sign on, it was necessary to agree to further additions.ⁱⁱⁱ But the constitution they had written took into consideration the likelihood that changes would be necessary in the future, and instructions were included for amendment. It's not easy – there have been only sixteen amendments in the 223 years since adoption of the Bill of Rights – but it can be done.

The question, however, is whether it should be done. Some feel that any attempt to change the document will result in a great deal of dissension in our country. The Founding Fathers were wise and they wrote a timeless document. The real problem is that we tinker with it rather than enforcing it. It ain't broke. Don't fix it. Follow it.

Others believe that it is broke. The original constitution may have been appropriate in its time, but that time has passed. The Founding Fathers (propertied white males), brilliant as they were, anticipated neither a country of this size and complexity nor the technology that now exists. Whether or not they agree with current interpretations, any changes should be written in rather than inferred. And questions remain: what does the Second Amendment mean?; should the President, whose authority was very limited in the original,^iv have the powers assumed by holders of the office?; what is the place of the bureaucracy in our current government^v and what should it be?; do the currently prescribed terms of office and the current election schedule make sense?^vi; should the Supreme Court be the final arbiter of what Congress meant, as it has asserted?^vii,viii And there are numerous other unanticipated issues which might be addressed head on. From their perspective, now is the time for a new compromise – new amendments or a new constitutional convention.

As I mentioned, changing the Constitution is no easy matter, but it can be done. Should it, though? Whether or not public opinion favors alteration or upgrading of the present document, there are considerations other than text that must be considered. What would be the mechanism of change? How can we incorporate the concept of "consent of the governed" in that new document and in the procedure to formulate it? Is there the possibility that the process will be compromised by fraud? Will "rich lobbyists" dominate the discussion of the proposals? Should the political season be limited? Does public involvement raise the specter of majority rule at the expense of the minority?

These are just a few of the many questions that come to mind when considering the reopening of this great document,^ix but it seems clear, since they provided for it, that the Founding Fathers both approved of, and expected, changes to be necessary. Until such time that it is done, however, it is incumbent on all of us to follow the rules that now exist, whether we agree with all of them or not. I don't, but we're a nation of laws, not men, and the ones that exist now are the ones we all have to live by.

In the next essay I'll offer some ideas about changing the Constitution. Perhaps some of them are feasible.

Next episode: “We The People” – It's time for a change.

I        John Adams, Novanglus Essay Number 7, 1775.

ii        Actually there were no parties at the time, but there were two main bodies of thought comparable to the parties we have today.

iii       The Bill of Rights.

iv       Out of fear that he would assume the role of King. They had suffered greatly at the hands of George III. They suffered at the hands of Parliament as well, but they feared the King more. Thus they made Congress primary (Article I) and the Presidency relatively weak (in Article II).

v        It has been termed “the fourth branch of government” by some (analogous to the Legislative, Executive, and Judicial branches established by the Constitution – the maker of most of the rules by which we are governed), but that term has also been applied to lobbyists and other interest groups.

vi      See “Cancel the Midterms,” David Schanzer and Jay Sullivan (New York Times, November 3, 2014)

vii     The writers of the Constitution had relatively little to say about the Judiciary, and they dealt with it after the Legislative and Executive branches (in Article III). There was no clue in the Constitution that it would take on the power it now has.

viii   Indeed. Will Supreme Court view Constitutional change as constitutional? Especially if it weakens them.

ix      Can of worms?