Monday, September 17, 2012

Constitution Day

Believe it or not, today (September 17, the 225th anniversary of the signing of the U.S. Constitution by 39 of the 42 delegates to the Constitutional Convention, representing 12 of the 13 states) is "Constitution Day" - technically "Constitution Day and Citizenship Day." It's easy, of course, not to believe it, because, except perhaps in schools, one is not likely to hear much about it. On the other hand, we now have so many days, weeks, and months to placate so many demanding special interest groups that it's just as easy to believe that we have a Constitution Day, whether or not anyone knows or cares about it.
For years, the Constitution's anniversary had been titled "Citizenship Day." In 2004, an amendment to an Omnibus Spending Bill changed the name and mandated that all publicly diunded educational institutions offer some educational programming on that day on the history of the Constitution - a requirement the DEA applied the followign year to all schools receiving any kind of federal aid.
I haven't a clue what may go on in schools on this day. Given the sad state of American education in general, the even sadder state of historical knowledge in our country today, and the virtual abandonment of civics instruction, I suppose almost any "Constitution Day" educational program might be for the better.
My own view, of course, is that the Constitution is vastly over-rated - precisely because so little understood. Creating a federal union out of a bunch of cantankerous, quarrelsome state was certainly a great accomplishment. That it was riddled with compromises was inevitable. That one of those compromises involved slavery and led eventually to a terrible Civil War may also have been inevitable. The Framers themselves certainly recognized that they were faillible and that their product was as well. Hence their provision for amendment and even for calling another constitutional convnetion. While the latter has never happened (and almost certianly never will), the Constitution itself has been amended 27 times - or 18 times, if we treat the 1st 10 amendments ("the Bill of Rights"), which were ratified and took effect together, as basically one event. (One amendment, which was part of that original "Bill of Rights" but failed to get ratified by the states, finally got ratified as the 27th Amendment in 1992.)

Amending the U.S. constitution is notoriously difficult. So most sucessful amendments seem to have represented a fairly broadly established consensus. (Although the former Confederate States were compelled to accept them, there was no such consensus about the so-called "Reconstruction Amendments," and so it took another century for their promise to be fulfilled. The other obvioous exception was the 18th Amendment, which established Prohibition. Whatever consensus there had been beforehad, the actual experience of Prohibition destroyed it, and the amendment was eventually repealed.)

So what needs amending in our constitution today?

To my mind the two major flaws in the Constitution are so fundmantal as to be hopelessly beyond repair. The Constitution established a "separation of powers" system rather than the British-style "parliamentary" system now found in most successful democracies. The combination of "separation of powers" and powerful political parties  makes governing difficult at best. When different branches are controlled by different parties ("divided government"), gridlock is often the likely result. The other, largely irreparable flaw is federalism - the retention of states as independent semi-sovereign entities which limit the national community's ability to address national problems.

The bizarre practice of the judicial branch nullifying the popular will by declaring acts of Congress unconstitutional is not in the Constitution. It's a power the Supreme Court gave itself early on (Marbury v. Madison, 1803). Since everyone can find some judicial decisions he or she agrees with, there will never be sufficient consensus to do away with judicial review of congressional acts. But a consensus could be developed around some less bold reforms - for example, amending the Constitution to give justices fixed terms (say 10 years).

One consequence of the judiciary's historical  power grab has been the selective "incorporation" of the Bill of Rights and, along with that, an increasingly secularist reading of the 1st Amendment's Establishment Clause.  A constitutional amendment incorproating some of the provisions of 1993 Religious Freedom Restoration Act, for example, would be beneficial.

And, of course, an amendment overturning the infamous 1973 Roe v. Wade decision (much like the 14th Amendment which overturned Dred Scott) would be welcome. Realistically, however, while pro-life sentiment is on the rise and there is widespread support for restricting the evil practice of abortion, the country remains, I think, still very far from the kind of consensus a constitutional amendment would require.

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