… And How to Fix It
Nobody argues that the Rule of Law is a bad thing. When the founding fathers gathered in Philadelphia in 1787 to hammer out a framework of laws for the new nation, they all agreed with that fundamental principle. Theirs was an ideology firmly grounded in what today we call classical liberalism. The Declaration of Independence’s famous phrase “life, liberty, and the pursuit of happiness” was uncontested. Most delegates to the Constitutional Convention believed the less centralized Articles of Confederation needed to be made more orderly, with a stronger executive. This was not a universally held view, however. Thomas Jefferson, for one, voiced skepticism about dilution of the influence of the legislative branch.
Ultimately, the “canon of law” to be set forth in that document we call our Constitution owed most of its substance to the pre-existing canon of Parliament in Great Britain. There was no ideological break here from the mother country. English common law was already established, and accepted by most colonists on this side of the Atlantic when the Declaration was promulgated in 1776. Property rights for those who owned it would be protected. Safeguards would be added against mob rule by an inflamed majority – not just by small minorities. Yet, again, the dissenters to this were led by Jefferson, who had unshaking faith in majoritarian rule – come what may! He may have been influenced by Thomas Paine in this belief. He did endorse the French Revolution of 1789 while still in Paris.
Jefferson was in Paris in 1787, and did not prevail in the final document, beyond those affirmations regarding individual freedom written for the Declaration. Due to his own life circumstances, slaveowner and wealthy intellectual, he might be compared to today’s virtue-signaling “liberal elite” — perhaps even the titular head of 1787’s “woke mob.”
The fundamental nature of the Constitution has always been to preserve and protect the assets of the most fortunate. It was never about redistribution of wealth for economic equality. Indeed, Hamilton stated that he wanted the final document to specifically guard against such radicalism! This, and the shameful acceptance of slavery in the Southern states, despite what even then was mainstream European thought against the institution, were the primary weaknesses of our Republic from its inception.
But wait! It turns out the Constitution can be changed! In some 230 years, we have managed to amend the document 27 times! Amending it does require ¾ of the state legislatures – after 2/3 of both houses of Congress have agreed to refer the amendment to the states. It often takes time but has been known to work 27 times in our history. John Marshall famously thought of the Constitution as needing to be “adapted to the various crises of human affairs.” First in line were the ten amendments known as the “Bill of Rights” (1791). And there were three amendments (13th, 14th, 15th), the Reconstruction Amendments, regarding voting and citizenship rights for former slaves. But the other 14 were essentially one-offs – called for by Congress and sent to the states to address specific problems of national importance. Only one of them (18th, Prohibition) engendered another to repeal it (21st). The Equal Rights Amendment would be the 28th – still controversial after 100 years.
Congress could call a Constitutional Amendment Convention upon application by 2/3 of the state legislatures. This has never been done. Rightfully fearing pandemonium, states have never felt the need to go for such a drastic solution to the various flaws in our existing Constitution. Even if they did, it’s likely that Congress would sit on it – especially since it might diminish their powers! The political environment of 2023 America does not augur well for such a risky proposition any time soon.
What makes a Constitutional Convention a “risky proposition” anyway? Are we so divided over basic principles of government and societal values that one camp might fear the presence of the opposing camp at the convention? Are we so insecure about the majoritarian basis of democracy that we’re afraid to tamper with its legal framework? Perhaps, in our atomized society, we all feel like minorities – we’re more concerned with protecting what we have than improving life for others. It sometimes seems that democracy itself – the liberal variety espoused by our founders – is not necessarily a fundamental value anymore.
It’s hard to ignore what became of supposedly thriving parliamentary democracies in Germany and Italy in the 1920s. And any student of South American or Asian history knows the perils of both presidential and parliamentary party systems there. They don’t seem to work as well as ours has for 250 years. The British parliamentary system has survived even longer (since 1688). What makes for political stability in a country? It may not be a written document that seals the deal — Britain has never had one — but it probably is a general societal respect for the rule of law, whether from a single document like our Constitution, or a history of common law like Great Britain’s. Could Britain’s secret be the peculiar role of the Crown? Whereas ours is the permanence of the Constitution?
If our Constitution is to adapt, and remain permanent, it will need amendments. I would like to see these: clarification (if not repeal) of the 2d Amendment; less autonomy for state legislatures (more explicit national corpus of rights); abolition of the electoral college; more precedence for Congress over the executive in war-making powers and certain other areas. Although they are typical in many parliamentary democracies, I know we can’t transform our presidential system into a parliamentary one — short of that wild card Constitutional Convention.
Finally, I would enthusiastically support measures that facilitate development of multi-party dynamics. I’m not sure what these are; political scientist Lee Drutman has some ideas, starting with proportional representation in Congress. Unfortunately, our existing two parties only stand to lose from this. I won’t follow George Washington’s and Alexander Hamilton’s disdain for parties, but I will support anything that ends the entrenched dominance of our existing two. A true multi-party system would be more than a third party as spoiler in presidential elections; it would be conscious, organized self-expression for a multiplicity of interest groups. They might form coalitions in some states with varying strengths in different locations. But, where strong, they should be able to elect representatives to Congress – and then influence Presidential candidacies.
Constitutional Amendment is not an easy path, but that doesn’t mean there shouldn’t be serious political effort in certain specific areas. However, I don’t see it happening in 2023 – I’m not even sure the ERA 28th Amendment will get anywhere. Is this what we call stability?
— William Sundwick
Warp and Woof 