Renegotiate The Constitution

What is this talk by Louis Michael Seidman of “giving up on the Constitution“?

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

Anyone can also listen to Russ Roberts interview Seidman on the Constitution, which I recommend – it’s one of my favorite podcasts.

I don’t want to add myself to the trolls who plague Seidman, because he makes some good points. I agree with his conclusion, in spirit, for the reasons he gives, but I also would argue that the Constitution has an adequate mechanism for amendment, one that has worked 27 times now. And, that amendment mechanism is more majoritarian than the one with which the Articles of Confederation burdened the delegates in Philadelphia in 1787. I would argue that is the problem: states have more power than influence, to stymie reform and assert minority rights over majority opinion reached through legitimate means or protest.

I want to be faithful to James Madison’s “Virginia Plan”, not the Articles of Confederation. I really did think this sectional argument was tossed in a deep grave by the Civil War. Seidman talks in the podcast how certain delegates acted “disobedient” to the Articles.

The Framers of the Constitution, the Congressional directive to them, was not to write a new constitution, but to propose amendments to the Articles of Confederation. And the Articles of Confederation were very clear about the amendment process. It required the ratification by the state legislatures of all 13 states. As soon as George Washington and his colleagues got to Philadelphia they decided to disobey the directive and to violate the Articles of Confederation. They tore up the Articles, wrote a new Constitution, and provided for ratification not by state legislatures but by popularly elected conventions. And not by all 13 states, but they said that 9 would be sufficient. And indeed when the Constitution went into effect and when the first Congress met, two of the states, North Carolina and Rhode Island, had not ratified the Constitution. So, the Constitution itself, paradoxically perhaps, was unconstitutional.

It’s true men like Madison and Alexander Hamilton quickly saw that delegates from larger, populous states could dominate both the Convention and a fledgling nation. For these lawyers and business leaders, the key was to let the majority rule without running roughshod over dissenters. The elaborate mechanisms of the first article on Congress is the result, and the checks each branch could deploy against the other two, to make that balance between majority election and minority right effective. Similarly, states needed to ratify republican constitutions, but were given unspecified latitude which would allow future generations an opportunity to decide important issues in a republican manner. What transpired is, that minorities in southeastern states, as well as commercial interests in select northeastern constituencies opposed those measured checks and balances for absolute roadblocks in the “New Jersey Plan” (which nonetheless had support from the Virginians), which prompted the “Great Compromise” leading to the flawed document Seidman, and many Americans of all ideological flavors, inconsistently lament as the authority for gridlock or some sort of tyranny.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

The problem is not, as Seidman argues, the mechanisms, but the anti-democratic procedures that undermine these institutions.

What Americans lost in the “Great Compromise” was the nation-building aspects of Madison’s vision for the new Athens. Madison wanted Federal electoral districts in states, drawn by the states with no Federal interference to overlap state boundaries if a census warranted it, but opponents made state and Federal districts identical, intentionally magnifying state power over the centralizing tendencies of the Federal government. The opportunity for, say, a Pennsylvania, western Virginia, and Ohio power base was lost.

Another intentionally crippling assault is the usurpation by states of the Senate Madison proposed. Under Madison’s proposal, the Federal House would convene and as its first order of business would elect by itself and from within its elected representatives, a smaller Senate at staggered terms in the beginning of two, four, and six until a point in the future when senators senators would be able to serve six year terms. The states did not appoint or elect senators in Madison’s plan, again an affront the minority could not tolerate. The opportunity again lost for politicians to build bridges across the institutional divide was lost. The Senate itself then burned what was left of that chasm by inflicting the filibuster on itself, which by Madison’s light is twice the anti-democratic black mark against his vision of democratic centralization.

These two black marks if restored by amendment would create a new state effectively. But, we can go deeper and lance the boil created by the minority paranoia of the pre-Civil War period. We can renegotiate the Constitution and the Bill of Rights that ensued because of Virginia’s intransigence, by selecting delegates based on today’s more democratic censuses, and not by the despicable standards of minority owning slaves or employing indentured servants for indebtedness. Let’s replay the battle between the “Virginia” and “New Jersey” plans and see what kind of “Great Compromise” we can devise.

The United States of America, indivisible and with liberty and justice for all, needs institutions. These venerable traditions are always jealously policed by a majority through elections and, if need be, protest (as occurred with Shay’s, the anti-slavery movement, the progressive movement, the Civil Rights movement, feminism, and the LGBT enlightenment). We are not a nation of rights, of minority privileges, and  that grievances rode our institutions for generations, i.e., the filibuster, but a democratic nation ruled by laws.