Still Relevant: The US Constitution

Even most of my essays are not what I would call “political,” and I do not think that even in this case you will find that my arguments or tone are consistent with political pieces with which you might be familiar; however, I do intend to address a topic that is fundamentally political in its dimensions.  With that in mind, this is the usual disclaimer that this is not a political blog, but a writing site, and if a philosophical examination of civic principles is of no interest to you, we have any number of stories and posts on other topics for your reading pleasure, we’ll be back with a regular book review on Thursday, and next Tuesday’s post will be back to regular programming.  That being said, this post does seem topical, considering our review last week for Tocqueville’s Democracy in America, and consideration of these questions is at the heart of human civilization.  So, I present my argument for the US Constitution’s continued and enduring relevance.

Like most movements, shifts, and changes, this one has likely been brewing beneath the surface of political discourse for a long time, but I’ve noticed a variety of arguments claiming that the US Constitution is out of date and inadequate for the task of arranging a government in the modern world entering the mainstream political discussion in recent months.  The wider emergence of these perspectives seems linked with the recent triumphs of “originalist” legal interpretations at the Supreme Court level, but identifying the impetus for the popularization of such claims is not my goal, and is arguably of little importance; rather, I would like to discuss how these arguments are fundamentally flawed in their perception of the Constitution as a law, when it is a description of organizing principles.  This is the Constitution’s greatest strength, and the reason why its relevancy is not diminished by the passage of time or the changes in the world.

For all the millions of words which have been written, starting with The Federalist Papers, on the US Constitution, what is perhaps most striking about it from an initial inspection is its brevity.  The main Constitution, not including amendments but including signatures, is a scant forty-five hundred words.  This brevity speaks both to its purpose as a structural and foundational document, and to the reason for its continued relevance.  The Constitution was written to establish a government, one that would avoid the dangers and extremities of other experiments in democracy through a unique form of federalism and deliberate alignment of competing interests and urges.  Beyond the separation of powers described in elementary civics classes, the Constitution renders a national authority that is both limited from treading upon the sovereignty of the several states, and directly empowered by the people of the entire nation.  Of equal importance, though, is what the Constitution does not do, for it is remarkably coy in its specific prescriptions.  Rather than attempting to foresee, anticipate, and account for every eventuality and challenge which might one day present itself to the nascent Union, the framers left the formulation deliberately open, that it might evolve with the dynamism of its enactors, and furthermore created a process by which it might be modified, one that is attainable, but that is not so attainable as to invite rampant, mercurial, or radical shifts in the fundamental structures of the government.

The Constitution does not make reference to temporally specific concepts or ideas, to contemporaneous technologies or scientific theories, or any other topical matter that fluctuates and changes with the passage of time.  It instead is built upon matters of morality, philosophy, and human nature, which are enduring regardless of whether the citizens to which its government is responsible are communicating with quill pens or digital keyboards.  It is notable also that where these more durable considerations have changed since the Constitution’s ratification, amendments have been successfully made despite the high bar necessary to enact them: the abolition of slavery, the expansion of suffrage, changes to the elective process for senators, term limits for presidents, individual rights, even the enforcement and subsequent repeal of Prohibition.

I do not claim that the Constitution is without flaw, nor do I always agree with the interpretations emanating from the Supreme Court; however, I consider it telling that the editorials and essays decrying the Constitution’s lack of modernity are conspicuously silent on the topic of pursuing the amendment process in order to enact their particular priorities.  The reason for their silence is obvious: there is insufficient support for a Constitutional amendment in the areas in which these naysayers are critical, and the authors do not care to engage in the difficult and time-consuming process of establishing an adequate consensus.  They would rather attack the document which by its existence, and the unchanging nature which they so readily decry, protects and enshrines their right to criticize it.  The process of Constitutional amendment is tedious and difficult for a reason, that the national government might not be affected too severely by the capricious swings of public opinion, hence why more than a simple majority is required to amend the document.

A particular editorial I saw in the journal Science identified gun control, abortion, and climate change as reasons for the Constitution’s newly popular irrelevancy, claiming that the second amendment was not intended to apply to modern weaponry, that the Constitution does not recognize the right of women to even be involved in the political process, and that the Constitution’s framers knew nothing of hydrocarbons or even evolution.  I shall address each of these points in turn.  On the topic of gun control, the second amendment was implemented in order to ensure that the government could not establish a monopoly on the coercive power of armed force, and especially to ensure that the federal government would not be in a position to militarily deny rights to the sovereign states of which the Union was and is composed.  These dangers are no less real today, for all that the weapons in question have changed.  A government with a monopoly on the means of forcibly enacting its will is on the road to despotism, and the citizens of a democracy who wish to remain in a state of freedom would do well to maintain a healthy skepticism of efforts to establish such a monopoly.  This is not to say that there ought to be no limits, or that there should not be debate about the public interest in gun regulation, but the appropriate avenue for that debate in a democratic society is through achieving consensus, not through calling for the removal of additional protections to individual rights and freedoms.  That there is not a sufficient consensus to repeal the second amendment is sufficient evidence that the nation’s moral consciousness remains divided on the issue, and that this is a moral question, not a question of public health and science.  Those tools inform the debate; they do not end it.

The second claim, that the Constitution does not recognize the right of women even to be involved in the political process, is patently false, and reveals a concerning lack of Constitutional understanding on the part of an author seeking to argue against that very document’s continued relevancy.  It is true that the Constitution as it was originally formulated did not recognize such rights, but it is also true that the Constitution was subsequently amended, and that such rights are now enshrined in it as surely as the right to a free press or to a trial by jury, both of which are also amendments to the original document.  Constitutional amendments are just as valid and integral parts of the Constitution as the text of the original document.  Amendments are part of the Constitution, not merely some addendum or piece of legislation.  Clearly, then, if a consensus could be reached on the subject of abortion a further amendment could be made to enshrine that consensus into the very formulation of the Republic.  If no such consensus can be reached, then the question is again a matter of national morality that remains undecided and is therefore better remanded to the authority of the more adaptive legislative process (which is what the Supreme Court’s recent ruling accomplishes; it does not enact an abortion ban, despite editorials claiming the contrary).  Again, the point is not that one position is right or that one position is wrong, but that a consensus does not exist, and that the solution to a lack of consensus is decidedly not to ignore the demands of responsible membership in a free and democratic society.

To address the third and final claim, that the Constitution’s authors’ lack of modern scientific knowledge renders their efforts to create a durable and responsible system of government obsolete in the face of modern problems like climate change, fails to acknowledge the durability of that same document in addressing the other scientific and technological changes of the past two centuries.  The Constitution’s first amendment does not provide for freedom of the eighteenth-century manual printing press, but for the press in whatever form it might evolve, including today’s digital versions, which would have been unimagined in 1789.  Again, this is because the document is a framework for federal governance and description of individual rights, not a piece of prescriptive legislation.  It establishes the means by which decisions are made, laws enacted, policies implemented, and challenges addressed, alongside certain limitations on the general powers of that government.  Nowhere in the Constitution’s original text or subsequent amendments is there a single world referring to climate change, but the necessary and proper clause gives more than sufficient leeway and flexibility for the government, through proper legislative procedures, to enact such policies and laws as should be deemed needful to address whatever challenges might arise in modern and subsequent times.  The failure to see a desired set of policies enacted is not a failure of the Constitution, but again of consensus-building.

Realizing that all three of these issues are controversial, I would like to emphasize that I am not in any way making a judgement one way or the other on these topics in this essay or with these arguments.  Beyond urging all perspectives to acknowledge that these are complex issues without clear right answers (no matter what certain “scientific” authorities like to claim), my argument here is purely that the system of governance established by the Constitution is not the problem, culprit, or barrier that forestalls progress in any direction on these fronts; rather, it is the solution.  I choose to highlight these three issues specifically because they are the common refrains echoed in arguments against the Constitution’s continued utility and viability.  My preference would have been less controversial examples, but perhaps the nature of the proposed alterations is such that handling, even at a remove, such controversial matters is inevitable.  That they are so topical in this discussion is intimately tied to headlining decisions of the Supreme Court’s recent term, which have been billed as triumphs of the Originalist school of Constitutional thought.  That legal approach holds that the Constitution ought to be interpreted as its authors intended, which is fallacious logic, for any effort to perceive lost mindsets of men long-dead is in reality little more than the trappings of justification for one’s own views.  Neither is the rival school of Constitutional thought free from fallacy, for extrapolating and inferring from the Constitution’s text to achieve modern ends is similarly manipulating the evidence for one’s own ends, and expands the judicial role beyond that prescribed by the very document which establishes that branch’s Constitutional oversight.  Much can be written on this topic, which is deserving of more than one essay in its own right, but to bring the discussion back to the matter at I hand I shall presently forestall that conversation for a later date.

Socrates supposed that the beginning of wisdom is in knowing we know nothing, a lesson in humility which all those who claim to have answers to difficult questions would do well to internalize.  From this nugget I derive my own axiom: there are no right answers, only wrong answers, and less wrong answers, with the goal being to strive always for less wrong answers.  Especially in questions such as those three referenced in the context of this Constitutional discussion, it is of the utmost importance to bear that sliver of wisdom in mind.  The Constitution, and the legislative process at both federal and state levels that it establishes, provides the means by which the American people, the true source of governing power in the United States, might both enact the natural extensions of the least wrong answer upon which they agree, and modify those enactments as less wrong answers are achieved.  Belief in the virtues of a democratic society means accepting that there is a less wrong answer in the modicum of wisdom derived by consensus of the voting populace.  Recognizing both the dangers of tyranny of the majority and tyranny of the minority, the Constitution establishes governmental inertia, checks and balances, and procedural hurdles to avoid the dangers of the intemperate passions of the masses, but it also provides mechanisms by which the reasoned moral consensuses of the people can be implemented, for the Constitution is the people’s document: its very first line establishes that the government it describes is based on the authority of “we the people.”  It is the responsibility, therefore, of those who desire to see it changed, or to see certain policies enacted, to present to the American people a case, to persuade them of the morality and less wrongness of the proposed change, and to thereby build a consensus sufficient to see those changes enacted.  To suggest otherwise, to attempt to circumvent the Constitution and the legislative process, is the forsake a government of the people, by the people, for the people, and instead to embrace a form of enlightened despotism.  I choose instead to trust in the wisdom of the American people as conveyed, communicated, and implemented through the carefully balanced government established by the Constitution, for it is within its text that protections for freedom of life, liberty, and the pursuit of happiness lies.