Thursday, December 12, 2013
Joseph R. Reisert
Admittedly, there is something odd about celebrating the birthday of the Constitution on the day it was signed and submitted to the states for ratification (Sept. 17, 1787), rather than the day in which it came into legal force (June 21, 1788, when New Hampshire became the ninth state to approve it). A still better choice for the Constitution's birthday might be the day on which George Washington took the oath of office as the first president of the United States (April 30, 1789), because it was on that day that the government designed by the Constitution finally became a reality.
But, on whatever day we choose to commemorate its birthday, our Constitution is worth celebrating.
The republican form of government it established for the nation has endured for more than two centuries, making our written constitution the most enduring such national charter in the world. This country has held the elections called for in the Constitution, every two years like clockwork. Even during the Civil War, the Depression, and both world wars, elections were held and the results honored, assuring the lawful and peaceful transfer of power. During those more than two centuries, our country has grown enormously in population, territory, prosperity, and power. At the same time, our society has become more free in many ways, and our political institutions have become ever more inclusive.
These days, however, the Constitution doesn't get a lot of celebration, which is not very surprising, when fewer than half of us approve of the job the president is doing, and not even one-fifth of the country approves of the way Congress is doing its work.
Numerous recent books, with such titles as "Constitutional Stupidies," "The Decline and Fall of the American Republic," and "Is the American Constitution Obsolete?," bear witness to the dissatisfaction with the Constitution widespread among law professors and political scientists.
It seems easy enough to imagine a better constitution. Just focus on what you don't like in contemporary politics, and think of the institutional fix required to solve the problem.
Don't like gun rights? Wish away the Second Amendment.
Want to see hate speech or political campaigns more tightly regulated? Wish away the First Amendment.
Want to limit government spending? Imagine a balanced budget amendment.
Want more government spending? Imagine a constitutionally guaranteed minimum income and health-care benefits for all.
Want a powerful, central government that can "get things done?" (In this space, I've occasionally given in to that wish.) Then wish away the Senate, and/or the Supreme Court, and/or imagine a parliamentary government.
There is a common pattern to such fantasies of constitutional "improvement," however. They all imagine ways of transforming the Constitution so as to advance private and particular ideas about what would be good for all. To judge the Constitution in that way -- complaining that it doesn't reflect your or my specific views about what the country should be like today -- misunderstands what a constitution is for.
The Constitution is not there to settle disputes, or to take sides in the great issues that divide us. Its task is to establish the institutions through which we express and work through our disagreements. Our government often can seem as if it is broken (as I've occasionally complained as well) because some officials prefer to express their constitutents' vehement disagreement with policies they oppose than to seek compromise and accommodation.
But, however messy the process, compromises eventually do get struck, becuse a large majority of the voters ultimately demands it, and the work of our government lurches along in its messy, unsatisfying way. Before endorsing any plan for constitutional change, the question you should really ask is: Twenty or fifty years from now, will our country become more just, more free, more prosperous, and more secure under the institutions than it would under our current ones?
It is not at all clear that any of the sorts of constitutional changes people typically call for could meet that standard. That's because most of our problems stem not from the Constitution, but from ourselves.
So in honor of Constitution Day we should take the long view and remember that the Constitution has served us very well over the centuries. And when we really want to change some law or policy, we should focus less on changing the Constitution and work harder at changing minds.
Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.