The U.S. Constitution: time for a rewrite?

U.S. Capitol Building

Something is wrong in the other Washington. The president can initiate a war without a declaration, or even, it now seems, without approval under the War Powers Act. Irrelevant legislation that can’t stand on its own legs becomes law because it is tacked on to defense spending bills that congressional representatives dare not vote against, and the president has no line-item veto. The entire legislative process grinds to a near halt because one party controls the White House and (sort of) the Senate, while another party controls the House. Bill after bill confronts the threat of two-fifths of the Senate preventing the measure from even getting a vote.

Individual senators block votes on nomination after nomination.  Commentators measure the two major parties’ political power in terms of their relative wealth, their “war chests.”  There are no other major parties because congressional seats are awarded on a winner-take-all basis, rather than by proportional representation.  We are one party away from being a one-party state. Et cetera.

How about a new constitution? Would that resolve any of this dysfunction?

We treat our constitution as holy writ, almost as another Bible. Yet the Founding Fathers would be the first, I believe, to remind us they were only mere mortals creating a less-than-perfect document. They wrote the constitution, moreover, for an age very different from the one in which we live — a world in which “the United States” still took a plural verb and modern political systems were very much inchoate compared to today. The founders perpetuated slavery, defined a black person as three-fifths of a white person, kept the vote away from women and made no provision for political parties, whose “baneful effects” the Constitutional Convention’s president, George Washington, would go on to warn of “in the most solemn manner.”

Democracy has three elements: freedom of personal action, freedom from want – commonly called social democracy – and effective representative government. We get very high grades on the first element. On the second two, and particularly the last one, we get poor to mediocre grades, and the trend seems downward. A second constitutional convention could at the least rectify the decay in government by correcting constitutional deficiencies that James Madison and his colleagues, I think, would freely admit to, were they alive today.

In 1994, Newt Gingrich’s “Contract with America” sought to legislate a presidential right to a line-item veto, to name one of the most conspicuous of those deficiencies. It was one of the few components of the Contract that survived the legislative process and received President Bill Clinton’s signature. West Virginia Sen. Robert Byrd led the opposition to the measure, asserting that it violated the constitution.

The matter ultimately went into the courts, and Byrd’s viewpoint prevailed. The issue then faded from view — remarkably enough, since some states have long had line-item-veto provisions in their constitutions, and amending the federal constitution to include such a provision seems a political slam-dunk.

I do not understand our reticence about changing the constitution. State constitutions seem much more responsive, organic documents. Some are amended routinely through initiative processes. And, more to the point, there are many well-established political concepts that would serve our nation well if incorporated into the constitution.

The bicameralism (two legislative chambers) of the U.S. system, for example, seems less an expression of federalism (the unity of constituent states that retain significant sovereignty) than a holdover from the days when a legislature’s lower house was seen as needing the coolness and wisdom, to use Madison’s words, of a more august upper house that bent less to public sentiment. Today the obdurate political confrontation that the Senate’s proceedings have become seems to have betrayed Madison’s hope, and the net benefit of bicameralism seems to have vanished. Moreover, many of the world’s most successful democracies have unicameral legislatures (as does Nebraska). The process of legislating unicamerally is vastly simpler than in Washington, D.C., where two houses, sometimes with different political parties controlling them, must both pass identical bills before they can reach the president.

Many people in countries with parliamentary governments, in which the legislative branch acts in much greater concert with the executive, which represents the legislative majority, wag their heads in disbelief at what we call “the gridlock in Washington”: the political stagnation that prevails when power is shared by two political parties that seem to hate each other more with each passing day. The 1787 constitution did not anticipate this unproductive partisan tension, and does not provide a means of accommodating or eliminating it.

One reason for our chariness about comprehensive constitutional reform is clear — the fear, among apologists for one side or the other, that writing a new basic law would threaten established conceptions of personal liberties. The second amendment provides the best case in point. Whatever their dissatisfaction with the right-to-bear-arms amendment, neither gun-rights nor gun-control advocates seem prepared to risk replacing it with the devil they don’t know.

The fear is legitimate, on both sides, but shouldn’t we also fear continuing with what we now have? Wouldn’t it be nobler to see our political establishment devoting its energies, not to the battle du jour over an appointment to some little-known agency, but to our underlying constitutional challenges?

I do not seriously expect such nobility of purpose tomorrow, or next year, or in my lifetime. The Founding Fathers, and much of their wisdom, are dead and gone. Still, it leaves me breathless to think that their spirit could rise again.

 

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