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Our Frustrating-And Essential-Constitution

In my last two posts, I've been conducting a thought experiment. I started by exploring the great divide in American politics, as evidenced through ongoing news articles that emphasize this theme. While there are a number of ways to examine this divide (geographical, generational, class, race, etc.), I suggested that one factor is our disagreement over the core concepts embodied in the US Constitution. I entertained the notion that, because the Constitution was created in a different era, with a different set of philosophies, and in response to a different situation, therefore its notions of rights, responsibilities, and the consent of the governed no longer carry a shared meaning. I then suggested some 21st century models for looking at a new foundation of our government.

Some people suggest I'm crazy for taking this on, and for even suggesting a new look at the Constitution. They say that any revision of the Constitution opens up a new set of problems, and once the genie is out of the bottle, who knows what that would mean for our society. I agree. This is a hard and difficult endeavor. But let's carry out the thought experiment one step further. Let's say that two-thirds of the state legislatures (as provided in Article V of the Constitution) call for a convention, to propose new amendments. What then?

Article V outlines only the basics of a convention. But what would that look like? Where would it meet? Maybe Philadelphia, for history's sake. But why not Washington, DC, the seat of government? Yet potential delegates might not want the glare of the DC media to intrude on this venture, so maybe they should pick a more remote place. Breton Woods? Too remote. Cleveland. Ugh. Chicago? Dallas?

How many delegates would there be? The original constitutional convention doesn't give us much guidance. Attendance was sporadic, and perhaps 40 people would attend on a single day. Several names were prominent in retrospect--Hamilton, Madison, Jay--so perhaps such a convention needs strong leaders. But is that what we would want today—a few powerful individuals making decisions for everybody else? How democratic would that be? No, we need a practical number. 435, like the House of Representatives? 100, like the Senate? 435 is probably too unwieldy; look how difficult it is for the group to get anything done now. 100 may be too small, leaving some places under-represented. Let's try 200, as a compromise. If so, how would this then be divided? Equally by state? That would mirror the worst aspects of our current Senate and Electoral College, privileging under-populated states at the expense of large ones. Yet these very states would want such an arrangement. So, would we ever be able to agree on the makeup of this body?

Who would be part of it? Start with my own state, New York. Let's say, for argument's sake, that the 200-body constitutional convention is divided by state population, with California having the most representatives. This means New York would have about eight delegates. How would we as a state decide who they would be? Would we vote? Would the governor and state legislature decide? Our two Senators would surely get seats, wouldn't they? What about the House delegation? How many of them would get picked? Which ones? And what about Governor Cuomo--shouldn't he have a seat? Mayor DiBlasio? Mayors of smaller upstate cities? Why not rural areas? And are we limiting this to politicians only? What about military people, professors, smart business people? Or why not celebrities, since that seems to be a new qualification for entering politics?

What would the parliamentary rules be? Who would set them? Who would be in charge? When would they meet? When would they adjourn? What would be the rules about publicizing the proceedings? How would the record be recorded and reported out?

So let's see: We are very fuzzy on the number of delegates or how to choose them. We don't know where to meet. We have no clarity on the rules. Those who accused me of starting a dumb idea with this thought experiment are starting to sound pretty wise.

In short, we appear to be stuck with the Constitution we have, which leads me to this follow up question:

Is this a good thing? I will cop out --Yes and No. By virtue of its stability over the last 224 years, the Constitution deserves our admiration. But what about those ambiguous articles or amendments that have caused so much debate and frustration? Take the second amendment. As is well documented, people on both sides of the gun debate look at its language and find that it supports their positions. That is a strength, but it is arguably a weakness, even a flaw. I believe that the vagueness of this amendment clearly leaves room to pass sensible gun control laws, especially those that enhance safety and that are not at all connected to self-defense (automatic rifles, for example). Obviously, those on the right disagree. There are other imprecise constitutional provisions, perhaps not as overtly controversial, that keep constitutional scholars busy and ensure that the Supreme Court will always have an overflow of cases.

In short, the Constitution frustrates us and sometimes leaves us uncertain as to the proper course of our government. Still, if we tried to change it, what would happen then? Might the second amendment’s language contain even stronger language protecting gun ownership? Might we lose the rights against unreasonable searches and self-incrimination, to name two notable examples?

After I wrote my first post on this topic, a reader named Gene Detroyer (a friend of a friend) astutely commented:

The risk of opening the Constitution is much too great, especially at this time. Look at what they are trying to do in Poland or Venezuela or have done in Turkey. The Constitution is a flexible document, designed to move with the times. Though the pace sometimes seems slow, the net is that it has ultimately moved in the direction of freedom and liberty.

While I think these comments give too much credit to the founders (I am not sure that they designed it to move with the times), the points about other countries are profound. I have steered away from mentioning our president in these news posts, but I’ll make an exception now: Imagine a malleable constitution in the hands of Donald Trump and his advisors. (And just to give the other side of the story, I’m sure conservatives would have made a similar point—unfair as I believe it is—about Barack Obama during his presidency.) Putting such a task in extremist hands would introduce great risk to our system. Indeed, commentators who wish to change the Constitution have argued that this would help “rein in big government” and cease “overburdening the U.S. taxpayer . . . [with] socialist programs.” (The Wilson Times, Wilson, NC) And one of the groups advocating for a constitutional convention is the American Legislative Exchange Council (ALEC), as a means to cut programs such as Social Security, Medicare, and Medicaid.

In short, I wish the Constitution could change—but only where it suits my political interests. And I’m deeply afraid of how it may change in the wrong hands. In other words, despite some drawbacks, it’s good that we’re stuck with it.

Next: One final post on this subject—Where do we go from here?

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