Our Overaged Constitution

For a long time now, the sheer longevity of the U.S. Constitution has often been held up as one of its greatest merits. It is, after all, the oldest written constitution in the world. Moreover, most western (more or less democratic) states have in fact had multiple constitutions during the 135 years that the U.S. Constitution has been in effect. That latter fact should at least invite the question about whether our overaged Constitution is still completely up to the task - or fit for purpose, as the Brits say. Given the fact that the basics of constitutional and democratic governance may be increasingly at risk in the next presidential term, it may be that much more important to distinguish the Constitution's flaws from its acknowledged virtues.

That our Constitution has lasted this long might have surprised its authors. Thomas Jefferson (who was not one of the Framers) famously thought there should be a revolution every generation. The Founders for the most part were not so radical and certainly valorized stability. That said, I suspect they would be surprised that their constitution has lasted so long in such a very different kind of world. 

In fact, of course, the original Constitution recognized its inherent limitations by providing for amendments. The constitutional amendment process is so cumbersome as to be virtually unusable in today's politically polarized context, but the early republic was smaller and more politically healthy and disposed to constitutional change. Thus, the first 15 years saw 12 amendments, including the all-important "Bill of Rights" and a modification of the already dysfunctional constitutional process for electing presidents.

The next series of constitutional amendments were the Reconstruction Amendments (14-15), which, thanks to a bloody Civil War, radically transformed the Constitution from being state-centric and slavery-tolerant to being somewhat more more federally centered, anti-slavery, and somewhat less anti-democratic. The next spurt of constitutional amending came with the early 20th-century Progressive era. So we got the Income Tax (16), popular election of Senators (17), Prohibition (18), Women's Suffrage (19), and then a little later, the "Lame Duck" Amendment (20), and the repeal of Prohibition (21). Prescinding from Prohibition, these all contributed to the increasingly democratic character of a constitutional system that was originally so much less so. These were vital improvements, which defined the 20th century's political progression.

I regard the 22nd Amendment limiting presidential terms as an unfortunate, anti-democratic regression, but a rather modest one. (In the present circumstances, in fact, the 22nd Amendment may be a prerequisite for salvaging constitutional and democratic governance.) The rest of the post-war amendments, moreover, definitely represented further democratic improvements on the original system - electoral votes for D.C. (23), abolition of poll taxes (24), presidential disability and succession (25), and the 18-year old vote (26). That last great spurt of amending activity reflected the post-New Deal, post-war, increasingly egalitarian and democratic society that the U.S. was then becoming. - and from which it has so dramatically regressed.

The fact that we haven't had any meaningful amendments since 1971 is telling. We have become much too divided a country to accomplish anything so consensual as amending the Constitution. But our polarized politics also highlights the dysfunctionally anti-democratic directions our Constitution makes possible.

Luckily, the recent presidential election did not see another repeat of 2000 and 2016 when the winner lost the popular vote. But, of course, that possibility remains. And, even without that outcome, the electoral college continues its massive distortion of our elections and of presidential campaigns. There is some evidence, for example, of different performance by the candidates in so-called battleground states and in so-called safe states. Trump lost states like New York, of course, but he did significantly better there than expected. and he performed better there than in some battleground states, which suggests that the Harris campaign may have had some effect in those places. Imagine an election in which candidates campaigned in all states, and voters in all states knew that their votes actually mattered! We can't predict exactly what our politics would look like, but we can be confident that it would be very different if we elected our presidents the way we elect other officials, i.e., the way a democracy would do.

The Electoral College was never intended to function as it does now. That fact itself further justifies efforts to replace it. The Senate is another story. The Framers' attraction to the classical idea of a "mixed constitution," which itself has much merit, gave us the Senate as a pseudo-aristocratic check on the democratically elected House. Personally, I regard those aspects of the Senate - such as 6-year terms, staggered tenure, and the Senate's role (very much at risk at the moment) in advising and consenting to appointments and treaties - as positive "checks and balances." Less positive, however, is the Senate's historical birth as a federalist compromise to reflect and represent the inordinate importance of the states. To be fair to the founders, none of them could have anticipated the eventual growth of the United States and thus the absurd disparity between, for example, California and Wyoming. There was no comparable disparity at the time of the founding.

Tragically, there is nothing to be done about the Senate. Certainly, viable alternatives could be imagined which would preserve the original sense of the Senate in a more sensible way. For example, we could divide the country into real regions, which make infinitely more sense than artificial states. A Senate structured to represent individual states more differentially but to represent equally the main regions of the U.S. - Northeast, Southeast, Midwest, Mountain and Prairie states, Far West, and Southwest - might make sense of the Senate, but of course cannot be accomplished.

(The Senate, of course, could at least reform itself somewhat by abolishing the filibuster, which would be a major democratic advance. That would ironically also be more in line with the original sense of the Constitution, which never envisaged the filibuster. If the Republican Senate sees fit to eliminate the filibuster at some point to achieve some aspect of Trump's agenda, that might be tragic in the short term but it would be a long-term good for the country, for which the filibuster has never been anything but an antidemocratic curse.)

The third pseudo-aristocratic component of our outdated Constitution is the Judiciary, specifically the life-tenure of federal judges and Supreme Court Justices, which was part of the original Constitution, and the usurped power of judicial review, which was not. Obviously, judicial reform is also off the table, given our present inability to amend the Constitution.

So whatever a post-Trump liberal reformist agenda will look like, it will remain constrained by these anti-democratic institutional constitutional barricades. All this is especially relevant right now because the Constitution was so designed in large part to be an instrument against tyranny. Yet now it is those problematic elements in the Constitution that are especially salient in diminishing the Constitution's effective ability to be an instrument against tyranny.