The American Constitution

One of the most remarkable political documents ever formulated was the American Constitution. Because it was written in a new country – one that had just broken with its past – there were few constraints on the methods it chose to deal with the problems it faced and the ones it foresaw. And it has remained in place to this day, though not without many changes – both those which came about by the means it prescribed, and those which had their origins otherwise.

Our nation was founded as a result of perceived tyranny; at least that was the sense of many of the white men who lived in the colonies. There was no interest in the perceptions of women and even less in the views of non-Caucasians. The governing document was formulated in secret by a small number of representatives of the individual colonies who, after a good deal of argument, agreed on a compromise document that was acceptable to a majority, even if it wasn't viewed as ideal by any of them. It was then presented to the voters of the colonies – a minority of their residents – on a take-it-or-leave-it basis. The decision was to take it, although the Constitution's promoters were forced to agree to the formulation of a Bill of Rights that would be added as the first order of business of the new government.

Even if the new system was less than many wanted, however, it was greatly superior to anything that had existed before. Its writers scorned the idea of monarchy and rejected in general the concept of classes or of any hereditary status.ⁱ There were provisions that would minimize the authority of religion in public life, while simultaneously preventing the government from involving itself in the religions of our country's citizens. Much was made of the responsibility of the new country to protect those citizens. In short, the new document was, from a political standpoint, far to the left of what it replaced.ⁱⁱ The origination of a modern liberal democracyⁱⁱⁱ as an antidote to tyranny required a new “rulebook” to provide its structure.

Much has happened since the late eighteenth century – in philosophy, economics, politics, history, and sociology, among other fields – and America has remained at the forefront of republics based on representative democracy. Our Constitution has endured as the solid backbone of our political body. But that body and its backbone have aged and have changed with the passing years.

The changes have come about primarily by two mechanisms. There has been amendment, as was authorized in Article V – a method which has given us, among other things, the Bill of Rights, popular election of senators, and guidelines for equality of the races and the sexes. But more recently there has also been extensive alteration in the Constitution based on a changed understanding by the Courts of the document's meaning. Often their interpretations reflected social changes corresponding to our citizens' wishes – but not always. Still the Courts see hints in the Constitution of rights not specifically listed or, in the view of many of our citizens, even suggested. And it has found prohibitions not apparent to many.

But the world has changed, and a document aimed at needs and beliefs which held sway nearly two and a half centuries ago has required updating. What was unique then can no longer make such a claim. What was a “left-leaning” charter then is now the centerpiece and jewel of the debate for those on the “right.” Whether that is a good or a bad thing it has come about in a haphazard manner often without the agreement of the people ruled by it. As such, it often establishes law without the consent of the governed. And we sought and obtained our independence because we viewed that as intolerable.

There are strong feelings about the solution to the problem – indeed, about the very nature of the problem. For many of our citizens the proper response to the current situation is to keep the Constitution we have, although they believe it should be enforced according to the original intent of the Founding Fathers.^iv The amendments, which have become inherent elements, were incorporated according to the rules provided to do so, and, therefore, are valid and obligatory for us. But perhaps positions taken based on the interpretations^v of Supreme Court Justices and others, and never ratified by “We the People of the United States,” lack the authority to bind us.

Others consider the acceptance of the interpretations and the views of legal scholars to be a proper way to adapt the document to a changing world and a changing culture. And they consider the present system of the balance of powers to be outdated. For them a stronger executive^vi is needed in order to run the country efficiently in the current difficult and threatening times, and to provide leadership and change when Congress does not act in a manner he^vii deems rapid enough, or in the national interest. Many would also make explicit^viii many of the rights which have been assumed and implemented over the centuries – often without obvious basis in the Constitution.

Still others regard the entire document to be flawed and in need of replacement. They might strengthen the states or weaken them. They might eliminate the right to bear arms or they might outlaw it entirely. Perhaps they would actively define “personhood” or “marriage” or even “rights.” For many of them, any action short of starting from scratch would be inadequate. It cannot be ignored that the founders provided for change because they knew that the document as written would require modification from time to time. Some believed that the explicit consent of the governed would be necessary, and that our fathers' laws were not binding on us.^ix

There is fear that any attempt to change the Constitution would get out of hand. It is a valid and a very ominous concern. But similar fears existed when it was first written and we are the better because our predecessors took the risk. Change is never easy for a single individual, and it will be an extraordinary achievement if our close to 320 million population can reach some kind of agreement. But perhaps now is the time to discuss the advisability of such an action and, if that is the path we choose to take, the way we do so.

Next episode: “For The Sake Of Our Children” – Live now so they can thrive later.

I        At least officially.

ii       Admittedly the concept of “left” “right” political division originated during the French Revolution, after the United States had separated from England, but the terms describe the political shift that occurred when the American Revolution came about.

iii      More accurately, a republic.

iv       Whether we actually know their intent is debatable, but there are many who are convinced that the views they hold are the ones to which the founders subscribed.

v        And biases.

vi       A king, perhaps.

vii      Or she.

viii     Some would prefer to reject or limit.

ix       Of Thomas Jefferson, Cass R. Sunstein wrote in BloombergView,

“In a 1789 letter to Madison, he argued that 'no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.' Every constitution, he held, 'naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.'

“In 1816, specifically rejecting Madison’s hope for veneration, Jefferson lamented, 'Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched.' He feared a situation in which people would 'ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.'

“Trying to humanize the founding generation, he said, 'It was very like the present, but without the experience of the present.' When “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.'

“'The dead,' he contended, 'have no rights.'”


NB:  My contrary opinion will appear on August 26th.  I can't make up my mind.