Is it time to trash the Constitution?

Many pundits believe so

Over the past few years, there has been growing sentiment that the Constitution is no longer relevant to American society, that, while the founders wrote a document suited for their time, things have changed to such a great extent that this polyhistoric parchment has run its course and reached retirement age. That the Constitution is obsolete is preached in classrooms, and law students are taught to circumvent and violate that contract (the Constitution is a contract between the States and the people of the States) by various means. Is it truly the case that the Constitution is no longer fit for our country? I don’t think so. There is a greater problem that most seem unwilling to address. First, a couple of examples.

The U.S. Needs a New Constitution—Here's How to Write It, an article by Alex Seitz-Wald in The Atlantic, says, “Let's face it: What worked well 224 years ago is no longer the best we can do.” The author complains that “the government shutdown and permanent-crisis governance signal that it's time to think about moving on” and that “If men (and, finally, women) as wise as Jefferson and Madison set about the task of writing a constitution in 2013, it would look little like the one we have now.” Good luck finding men today “as wise as Jefferson and Madison.” Our self-styled best and brightest (as my friend Peter Venetoklis over at The Roots of Liberty likes to call them) could never even aspire to attain half the wisdom of our founding fathers. Further, I would argue that “government shutdown and permanent-crisis governance” have nothing to do with the Constitution or any possible shortcomings.

The Constitution Needs a Reboot, an article in Politico written by a professor of law from the University of Texas, posits that “Not enough people connect the dots between our political dysfunctions and the Constitution of 1787.” It appears his main contention is that “[t]he most obvious problem is the Electoral College, the system by which a minority of voters can elect a president,” but that more so, “the document makes it nearly impossible to pass legislation truly meeting the problems facing the country.” Most of the rest is a childlike rant. None of the author’s arguments, however, hold water.

I use these two articles (there are many more) as examples of people’s thinking regarding the Constitution and why it needs to be meliorated or made over. The issue is, they are both reaching (as are most) for reasons that don’t actually have to do with the content of the Constitution - they have to do with people not knowing and understanding the Constitution and the Federal Government not operating within the bounds prescribed by it. Even when citing outside sources, or others from the founding fathers, they get it wrong.

We must keep in mind that the Constitution is a legal contract and thus should be interpreted based on what it says and how it says it, not based on what people wish it to say. This was Justice Scalia’s contention - “The Constitution is not a living organism. It's a legal document, and it says what it says and doesn't say what it doesn't say." That we seem to have issues should make us look deeper at the Constitution and the other writings of our founders - not simply seek to replace it.

For instance, Seitz-Wald quotes Jefferson stating “[e]very constitution…naturally expires at the end of 19 years.” The issue with his quotations is that they are taken out of context. Jefferson, in a letter to Madison, is lamenting an issue largely of finance, of government writing bills of appropriation, and commenting that it is unwise that any debt of appropriation should be made that extends beyond the generation incurring the debt because, when such appropriation is made, that generation is laying debt on the following generation(s). Jefferson uses France as an example, and as he explains the concept, he writes:

But with respect to future debts, would it not be wise & just for that nation to declare, in the constitution they are forming, that neither the legislature, nor the nation itself, can validly contract more debt than they may pay within their own age, or within the term of 19. years? and that all future contracts will be deemed void as to what shall remain unpaid at the end of 19. years from their date? This would put the lenders, & the borrowers also, on their guard. By reducing too the faculty of borrowing within it’s natural limits, it would bridle the spirit of war, to which too free a course has been procured by the inattention of money-lenders to this law of nature, that succeeding generations are not responsible for the preceding.

To James Madison from Thomas Jefferson, 6 September 1789

Could you imagine if our government actually operated with such a mindset? We surely would not be carrying a multi-trillion dollar national debt or operating government at a multi-trillion dollar deficit. Why does our government find it necessary to incur such cost? Because it has grown far beyond (both in size and scope) what is outlined in the Constitution. Those elected to federal government believe that government is responsible for all aspects of modern life (and also have fallen pray to other phenomena Jefferson outlines and which I will quote), and the populace has been led to believe the same. This is wholly inaccurate. As Madison himself wrote, “The powers delegated by the proposed constitution to the federal government, are few and defined” (Federalist No. 45). I have written at length about this phenomenon here and here, and probably others. We don’t even adhere to the Constitution’s prescription for elections. How then, if we are not following the Constitution, can we blame the Constitution for our country’s ills?

Often, the “general welfare” clause is used to justify the federal government involving itself where it doesn’t belong, and, more often than not, also violating our liberty. The fact is, the federal government has two primary purposes - protect our rights and protect our borders. Protecting our rights is a matter of ensuring the states provide a “republican form of government” (U.S. Constitution, Article IV, Section 4) and abiding the restrictions placed upon it by the first ten amendments. We all know how well the government is securing our borders (about which I’ve recently written here and here).

Frequently, those in government make claims of limitations on our rights (our founding fathers conceived of no such circumscriptions) and attempts to write laws contravening the Bill of Rights. Any law that violates one of the amendments, no matter what the Supreme Court may say, is unconstitutional. It doesn’t matter whether it is a law that interferes with free speech, that prohibits the practice of (not just belief in) one’s religion, that interferes in any way with a person’s right to keep and bear (i.e. carry) arms (of any sort), that allows for warrantless surveillance, that hinders or prevents a speedy and public trial (that’s just amendments 1, 2, 4, and 6), such law is in violation of the Constitution and therefore invalid and unenforceable (though try telling that to the government).

Consider that those men writing so many years ago were able to form a union that has lasted almost two-and-a-half centuries, and that the European Union could not accomplish the same over only the past couple of decades with the benefit of modern knowledge. The EU has failed on many fronts for many reasons, not the least of which is no consistency in governance from member state to member state. We can cite other issues such as not sharing a common language, common heritage, common culture - all things our forebears sought for America. Yet today, our best and brightest reject these objects of commonality in favor of a forced diversity that is anything but.

So the problem isn’t one of laws and constitutions having a natural expiration of a generation. It isn’t a problem of vagaries, ambiguity, or omission in the original text. The problem lies in understanding and abiding the text as written. Going back to Jefferson’s letter of concern to Madison, he states:

Every constitution then, & every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, & not of right. It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly & without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal & vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.

To James Madison from Thomas Jefferson, 6 September 1789, emphasis mine

Does the text I highlighted strike a chord with you? It should. It very well expresses problems with our government and our citizenry. The founders sought to write a Constitution that could withstand the test of time, and they had the amazing foresight (based in part on hindsight) to see what could (or would) become of the country they were establishing.

The issue we face, therefore, isn’t the Constitution or anything in it (or lacking from it) - it’s the people. It’s political parties and partisanship. It’s a failure of education, a failure of understanding, and a failure to follow that which those brilliant men penned almost two hundred fifty years ago. Those who believe it should be scrapped for something new should recognize that even that was accounted for in the Declaration, and if the Constitution is tossed, the States must be permitted to return to their individually and Constitutionally sovereign existences while (and if) a new Constitution is composed. Until such time as we are willing to dissolve the Union or permit those States who so desire to secede, we should be focused on getting back to the Constitution, not rewriting it.