It is a debate as old as the United States itself: how should the Constitution, our seminal governing document, be treated? Should it be more flexible and easy to change — a “living document” — or should it remain fixed and difficult to alter, in favor of an “originalist” interpretation? An article in Aeon weighs in:
In effect, the amending clause contained in Article V says that any change, no matter how minor, must be approved by two-thirds of each house of Congress plus three-fourths of the states. This is daunting, certainly. But growing population disparities render it even more so since the three-fourths rule means that 13 states representing as little as 4.4 per cent of the population can veto any change sought by the remaining 95.6 percent of the population.
As a result, Americans have succeeded in modifying the Constitution only 17 times since ratification of the Bill of Rights in 1791. Since amendments tend to come in clumps during periods of exceptional turmoil, this means that decades can race by without any change at all. For instance, the US was constitutionally frozen for nearly 60 years prior to the Civil War, and then spent another 40 years in a constitutional deep-freeze during the Gilded Age that followed. Only one amendment, the 27th, concerning the scheduling of Congressional pay raises, has been approved since the civil-rights revolution of the 1960s and early ’70s, and that one was drafted in 1789 and then gathered dust in various state legislatures for more than two centuries. Excepting this unusual amendment, the present constitutional ice age could wind up outlasting the first.
Arguably, this Constitutional paralysis is the real source of American exceptionalism – not America’s military or economic clout, but its basic political structure, so unlike that of just about any other country on Earth. It’s certainly the source of its exceptional political psychology. One might think that Americans would be impatient with a Constitution that frustrates any and all efforts at reform, yet the response has been the opposite: instead of growing angry, people have reassured themselves over the years that immobility is all to the good because anything they do to change things can only make them worse. In effect, they’ve taken the old adage, ‘If it ain’t broke, don’t fix it,’ and turned it around. Since a fix is impossible due to the system’s deep-seated resistance to change, then it must not be broken at all. In fact, it must be perfect and therefore divinely inspired. And if the Constitution is divinely inspired, can the US be anything other than divinely inspired as well?
The Constitution is perfect because it’s impervious to change and vice versa. This is exceptional all right, as well as more than a bit odd. After all, cars, washing machines, and vacuum cleaners all run down from time to time, so why not the US machinery of government? Why should it be spared the usual wear and tear? This would seem to be the case especially given the news out of Washington these days about gridlock, high-wire negotiations, and government shutdowns. Surely, a government that periodically shuts its doors due to budget disputes between the executive and legislative branch can’t be said to be functioning up to snuff? In fact, it seems more and more dysfunctional. Yet everyone say it’s the greatest system on Earth. How can that be?
As you can tell from the excerpt, the article clearly takes a skeptical view of the Constitution’s “sacredness”, but I feel it is a thought-provoking read, and it does highlight some troubling trends that stem, at least to some degree, from the way the Constitution is applied and interpreted:
Since economic polarisation is a global phenomenon, a sclerotic 18th century Constitution can’t be entirely to blame. But an increasingly unrepresentative system obviously doesn’t help. Thanks to a Senate that gives equal representation to all 50 states even though the largest (California) is now some 65 times more populous than the smallest (Wyoming), U.S. government is arguably more undemocratic now than it was even in the 19th century.
In the 114th US Congress, 67.8 million people voted for senators who caucus with the Democratic Party, while 47.1 million voted for senators who caucus with the Republican Party. Yet those 67.8 million votes elected 46 senators while the 47.1 million votes elected 54 senators. Call this what you will, but representative it’s not. Thanks to a bizarre filibuster system that allows 41 senators (representing as little as 11 per cent of the population) to prevent any bill from reaching the floor, it has never been more unfair. Yet a fix is impossible. The results in the economic realm are all too obvious. While other countries have succeeded to a degree in bucking the trend toward financial oligopoly, the U.S. has given it free reign. The system continues tottering forward because no one is able to come up with a viable alternative.
Throughout my many college courses in political science and law, I came across a consistent theme: that the U.S. Constitution was deliberately designed to promote deadlock and create a high bar for laws to pass. The logic was that this would prevent the government from being swayed by one populist whim after another, while representatives would be forced to appeal to their higher nature by coming together rather than allow gridlock to transpire (incidentally, partisan politics — and for that matter actual political parties — were virtually nonexistent at the time of the nation’s founding).
But given the present circumstances, namely how much media, politics, and the wider world have changed, is this approach too dated, if not naive? Is it feasible to retain the Constitution’s strict approach to change? Has politics become so cynical and oligarchic as to render the status quo in law and elections abusive? Maybe the problem isn’t the Constitution, but the politicians, or perhaps the public…or perhaps all of the above?
I encourage you to read the rest of the article and share what you think? How should this document — and by extension American government and law — be treated?