Lyle Denniston looks at an online editorial that considers dumping the Constitution after last month’s gridlock, and if the Constitution can lead us back to a functioning government.
“America, we’ve got some bad news: Our Constitution isn’t going to make it. It’s had 224 years of commendable, often glorious service, but there’s a time for everything, and the government shutdown and permanent-crisis governance signal that it’s time to think about moving on….It guarantees gridlock, and it’s virtually impossible to change….Dysfunction, trending toward constitutional breakdown, is baked into our DNA.”
– Alex Seitz-Wald, in an article in the online edition of Atlantic magazine, November 3. The article was titled: “The U.S. Needs a Constitution – Here’s How to Write It.”
WE CHECKED THE CONSTITUTION. AND…
Almost every day, some American, somewhere in the country, is checking up on the health of the Constitution. The old parchment has a lot of protective guardians, and some of them worry about it, especially when they see a flaw in government operations that they think might mean there is a flaw in the Constitution itself.
Most of the time, the conclusion of this periodic questioning is likely to be the same: news of its death, or even news that it is terminally ill, could be greatly exaggerated. There is, of course, a movement centered in the legal academy that the Constitution is, in some fundamental ways, no longer working and needs an overhaul. And the difficulty in amending it – under the terms spelled out in Article V – is sometimes said to be reason enough to cast it aside altogether, and start over.
Leaving aside the fact that, if politicians can no longer agree on anything of importance in public policy, they could hardly agree on what to put into a new constitution, it is worthwhile to check the premises of this foreboding. The yearning is for an efficient government, and often this is expressed in a desire for some form of parliamentary democracy. That arises out of a belief that the structure of the Constitution and its basic arrangement of “checks and balances” will doom it in the long run.
And, predictably, the would-be new constitutionalists can find evidence in current and past history when the national government didn’t function very well, and actually, a few times, came close to collapsing altogether.
Lately, of course, they have fresh evidence in the recent two-week shutdown of the whole thing (or most of it), along with a simultaneous movement toward the very brink of financial default that would drag down with it the whole world. And, for good measure, they can cite the problems in setting up a government website to peddle health insurance, in the midst of a world where there is touch-of-the-finger access to “an app for everything.” The hand-wringers could also recall the Great Depression, or the Civil War, as even stronger evidence.
But, one has to ask: Does any of that prove that the fault lay in constitutional design? Or, perhaps more to the point, was any of that so destabilizing to American government that it could not be handled by a constitutional amendment, or a changing interpretation of the document, instead of scrapping the system altogether? The supposed rigidity of the Constitution is, as a historic reality, a phantom. For all of the debate about what it meant in 1787, it has proved to be remarkably adaptable to the unfolding crises of every age since then.
The fundamental cultural problem is that, in every one of those ages of American development, men have proved that they are not angels, but that they can be made at least a bit more angelic by the reemergence in each age of constitutional normalcy.
Recall what James Madison wrote in Federalist Paper 51:
“What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.”
So, at this age in history, America might want to pause to examine what is less than angelic in the people who inhabit its government, and whether the operation of the Constitution – just as it is – might once again lead them back toward a functioning government.
Here are a few ways that might happen:
First, an interpretation of the 14th Amendment guarantee of equality to mean that legislatures cannot draw up election districts that pre-determine who is going to win whether or not that represents the actual will of the people, district by district. That could be done – and almost has been done – by a Supreme Court ruling. That could also have the effect of keeping primary elections from being dominated by minority factions that emerge in a political party.
Second, an amendment of the Senate rules to revive the old idea that a majority is in control, even while it can show some respect for the dissenting voices of transient minorities. The pride of the Senate, that it is the world’s greatest deliberative body, need not mean that ultimate control is routinely held by 41 of the 100 senators. (The Senate, of course, is not a very good representative of popular will because each state gets two senators, but that can’t be changed by amending the Constitution because Article V does not allow a change in that guarantee of equality without the consent of the states, and they will, of course, never consent. It is by no means clear, though, that this small-state tilt is what keeps the Senate from being able to get its work done.)
Third, one constitutional amendment that would be well worth considering is to modify the Electoral College (or scrap it), to assure that the President is, in fact, the candidate who gets more votes than any other candidate. It could enhance the authority of the office, and better reflect popular will, by causing candidates to run all cross the country, and not just in the states that now dominate the Electoral College.
The alternative of starting all over seems like a desperate one – and one that two centuries of history may well show is unnecessary.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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