Is The United States Constitution Broken?

Congress is dysfunctional.  Our federal government appears incapable of addressing the most pressing issues facing our country without repeatedly bringing the nation to the brink of financial disaster.  Many people ask themselves, “Why can’t our elected representatives rise above petty partisan politics and act for the public good?”  Respectfully, I think that is the wrong question. Rather, we should ask, “Why do our elections constantly seem to produce officials who can’t govern effectively, who can’t make the reasonable, rational compromises that make for a workable, functioning democracy?”  We should also ask, “Are there problems with the way our government is structured that contribute to its dysfunctionality?”  (I use the term “structure” here broadly to include not only the division of our government into three distinct branches, but also the structure, powers and rules governing each branch and the elected or appointed officials who occupy them.)  And because the structure of our federal government is determined by the United States Constitution–a document drafted in 1787, adopted in 1789, and amended only twenty-seven times since then (but really only seventeen times if you treat the Bill of Rights as one big amendment)–we must consider whether the Constitution itself is in need of repair.

Even to ask that question, even to dare to question a document that is venerated and revered by millions of people, a document whose authors have achieved demigod status among many people, is to risk extraordinary public scorn–and even death threats.  Just look at the public reaction to Professor Louis Michael Seidman’s recent op-ed in the New York Times.  Seidman, a distinguished professor of constitutional law at Georgetown Law, is the author of the forthcoming book,  “On Constitutional Disobedience.”  He begins his article:

As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

He continues:

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.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

For having the audacity to think these thoughts and share them with the public, Seidman has received hundreds of abusive emails, many anti-Semitic, some of which rise to the level of death threats.

I strongly disagree with Professor Seidman’s suggestion that we abandon the Constitution.   The document is central to our nation’s 200+ year long experiment with democracy.  Just as distinct communities of people, indeed whole civilizations, are defined not only by geography, but by a shared or common language, much of what defines us as “one Nation under God, indivisible, with liberty and justice for all,” is our longstanding commitment to legal rulings that are consistent with, even if not determined by, the text of that document. So, abandon the Constitution?  No way. But talk openly about whether it is in need of some fix’n? Absolutely.

Another prominent constitutional scholar who has dared to talk openly about the problems with the Constitution is Professor Sanford Levinson of the School of Law at the University of Texas at Austin. He is the author of a thought-provoking book, “Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It).”  Unlike Professor Seidman, Levinson does not advocate abandoning the Constitution.  Instead, he argues persuasively that a number of its provisions are flawed and promote either unjust or ineffective government. He challenges all of us to participate in a long overdue public discussion on how we might best reform “this most hallowed document and construct a constitution adequate to our democratic values.”  In a 2006 article that preceded his book,  Levinson writes:

We must recognize that substantial responsibility for the defects of our polity lies in the Constitution itself. A number of wrong turns were taken at the time of the initial drafting of the Constitution, even if for the best of reasons given the political realities of 1787. Even the most skilled and admirable leaders may not be able to overcome the barriers to effective government constructed by the Constitution. In many ways, we are like the police officer in Edgar Allen Poe’s classic The Purloined Letter, unable to comprehend the true importance of what is clearly in front of us.

Both the article and his book invite the reader to ponder a series of questions intended to raise awareness about problematic provisions of the Constitution.  Here are two of those questions:

1. Are you comfortable with an Electoral College that, among other things, has since World War II placed in the White House five candidates — Truman, Kennedy, Nixon (1968), Clinton (1992 and 1996), and Bush (2000) — who did not get a majority of the popular vote? In at least two of those elections — in 1960, for which evidence exists that Nixon would have won a recount, and in 2000 — the winners did not even come in first in the popular vote. The fact is that presidential candidates and their campaign managers are not necessarily trying to win the popular vote, except as an afterthought. Instead they are dedicated to putting together a coalition of states that will provide a majority of the electoral votes.

2. Even if you support having a Senate in addition to a House of Representatives, do you support as well giving Wyoming the same number of votes as California, which has roughly 70 times the population? To the degree that Congress is in significant ways unrepresentative, we have less reason to respect it. It is not a cogent response, incidentally, to say that any such inequalities are vitiated by the fact that the House of Representatives is organized on the basis of population, putting to one side issues raised by partisan gerrymandering. The very nature of our particular version of bicameralism, after all, requires that both houses assent to any legislation. By definition, that means that the Senate can exercise the equivalent of an absolute veto power on majoritarian legislation passed by the House that is deemed too costly to the interests of the small states that are overrepresented in the Senate, especially those clustered together in the Rocky Mountain area and the upper Midwest.

I commend Professor Levinson’s book to all.  Agree with what he writes, disagree with what he writes, but at least seriously consider and think about what he writes.  And then share your thoughts with your friends, neighbors and colleagues.  Start the conversation.  Our great nation will be better for it.