When I read this piece by Louis Michael Seidman in the New York Times today, I wanted to throw a parade.
Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.
Oh snap!
This is the kind of thing Good Americans are not supposed to say, kind of like a fundamentalist Christian saying that, well, maybe God didn’t make human beings exactly in their present form. Ears perk up and small gasps can be heard around the table as such a sentiment is uttered in a kind of faux casualness.
But more to the point, I’m always relieved to hear this brand of sentiment about the alleged intractability of the Constitution when it’s not coming from, say, theocrats who, not content to deify the Founders, would rather just upend the whole shebang and make Jesus king of America.
My motivations, I suspect, are different from Seidman’s. He concentrates primarily in the piece on the structure of government, on who among the branches has the power to do what. My more recent wishes about not wanting to adhere to every outmoded decree in the Constitution stem, not surprisingly, from the grossly distorted Second Amendment (because it’s crucial that white landowning males have muskets to stop, like, tyranny).
But this kind of thinking about government’s foundations is crucial, really, if we take government seriously. Otherwise, we really are no better than religious literalists, doomed to wonder what the prophets meant for us to do concerning Internet policy and subsidies for the solar power industry.
It’s also crucial in terms of one issue close to my heart, electoral reform. There’s not even a right to vote enshrined in the Constitution, only protections against those who want to limit it where it already exists.
Seidman cushions the blow for those who fear chaos if we loosen our adherence:
In the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.
This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.
Yes, so let’s definitely enshrine our highest principles and ideals, as well as our best idea of how our government should be structured, but let’s make sure that we can redecorate the shrine when it looks like we need to.
Near-Earth Object 
If I were to be on a committee drafting a rewrite of the Constitution, I’d push to put the 14th Amendment at the top of the whole thing. I mean, it took us how long to get around to including just about the single most ethically necessary principle for a society? Seriously: start with equal protection, and build the rest around that. Freedom of speech, press, conscience, movement, association…freedom from unreasonable searches….separation of powers…checks and balances…all definitely necessary. But without equal protection, you end up with a bunch of invisible asterisks — “*Offer applies only to people in positions of privilege.” And we still haven’t quite gotten the hang of taking equal protection seriously under the current Constitution.
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Which founding father was it that outright stated that every generation should completely throw out the previous generation’s system of governance? I want to think it was Jefferson.
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I’m completely on board with something my husband is fond of repeating (- dunno where it came from). The American Constitution set in concrete a copy of monarchy-with-parliament as it was in England at the time, merely substituting the king in council with a president and cabinet, and doesn’t have a mechanism for updating it. The specification and formalisation of rights is the only thing that has saved it.
Britain itself, the countries of its Commonwealth and former colonies have all modified and fiddled about with their forms of governance in the several hundred years since so that the USA is left with a dysfunctional, antiquated model of something that noone with any sense uses any more. None of us could manage if we maintained the roles and responsibilities as they were that long ago. Some of us have monarchy in name only, some of us have full fledged republics but maintain diplomatic and other ties to Britain. And when we find problems with our modernised systems, we fix them as best we can. The USA seems to go into paralysis and paroxysms caused by its decision and policy making mechanisms and seems to see no way out.
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