Tuesday, June 12, 2012
Stuck With the Constitution We Have
It’s becoming increasingly obvious that our Constitution is no longer up to the job of providing for the running of the government of a large urbanized, industrial nation. The only reason it’s lasted this long is that some of its general tenets, such as the commerce clause, have been interpreted liberally enough by the courts to allow modern issues to be dealt with. Now that the Supreme Court seems hell-bent on taking the country back to 1897, we don’t even have that.
And here comes the bad news. The alternative would probably be worse.
To imagine what would happen if a convention were called to draw up a new Constitution, it helps to remember how the one we have was put together. To begin with, a small number of delegates (there were 41 signers) met in secret to argue, compromise, and hammer out the final document.
They were all men, and men of means at that. They were uncommonly well-read and learned, not only by the standards of their time, but by the standards of ours. In debate their arguments, being held behind closed doors, were directed to each other, and not to any gallery. No one who went into the process came out of it with what he wanted, yet they came together at the end and approved the Constitution unanimously.
Even then, it was a hard sell. In many state legislatures, the vote to approve was close and hard-fought. Although it was still early in the country’s history, a significant anti-government sentiment already existed and was given full voice in the debate. The most commonly voiced argument against the Constitution was that it gave the federal government too much power and would lead to tyranny, something that hasn’t happened yet.
Looking only at the process of creation, it’s hard to believe that a constitutional convention held today would be anything but worse than the original. To satisfy notions of diversity and fairness, the delegations would have to be so large as to be nearly unworkable and so diffuse as to hopelessly dilute the power of any first-class minds present. Proceedings would be televised live and dissected on the spot by bloggers, tweeters and TV commentators. Prolonged debate, leading to some sort of compromise would be next to impossible. Any attempt to state things in general terms, allowing for elected legislatures to work out details down the road, would be shouted down by partisans on both sides.
Almost surely there would be great pressure for more direct democracy, allowing people to vote on laws. Living in a state, California, that has just about been reduced to a smoking ruin by the initiative process, I find the prospect of replicating it at the national level more than a little frightening. Politicians making compromises, while hardly perfect, generally arrive at more nuanced and sensible solutions.
Finally, imagine that a Constitution that actually reflected 21st Century realities were to emerge from such a convention. A Constitution that, say, granted Congress the explicit power to regulate commerce, corporations and labor unions in the public interest and to regulate and limit the financing of political campaigns. Big money could and would spend unlimited amounts of money to defeat it in the state legislatures.
Nope, it doesn’t look good. Fear of the alternative will probably keep the current document going for a lot longer. So make your peace with the Electoral College; make your peace with Wyoming having as many senators as California. We’re stuck with what we’ve got precisely because it could be a lot worse.