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.
