A Less Than Perfect Union

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“It was the best of times, it was the worst of times.” An age of bewilderment, of resistance, of tweets. The whirlwind of events in recent months has contorted the electorate, and suddenly, constitutional law has become a dinner time conversation. The slow and steady trickle of political debate has entered ubiquitously into American daily life: the music we listen to, the series we watch, the musicals on Broadway, the “water-cooler” conversations at work. Google is tasked with providing answers to questions like “Who can block executive orders?” and professors take to Twitter to help people understand the process federal appeals go through.[1]

And, I keep finding myself reaching this conclusion: We are a more perfect union today than we were 241 years ago. Perhaps this is a controversial opinion in a time where our president is clearly the type of leader that our Founding Fathers wanted to avoid and our Congress can barely scratch a 20% approval rating, but the fact is this: We are talking and engaging with one another, and this conversation is crucial.[2][3] And it’s precisely the reason we need a Constitutional Convention.

This tumultuous election cycle has highlighted a polarized reality: deep interest in and deep distrust of our democratic and governing system. In October of 2016, a Gallup Poll found that 55% of Americans have “not very much,” or “no trust at all,” in the government’s ability to handle domestic issues. The same poll found that only 32% have a “great deal” or a “fair amount” of trust in mass media.[4] Voter turnout is nearing an all time low, this past election marking the lowpoint in the past twenty years.[5] And politics seems to percolate into nearly every conversation these days. A once “taboo” topic has become normalized and ostracized in the most peculiar of ways. Everyone loves to discuss their distaste for our politics.

And yet, when it comes to state governments, it is a completely different story. The same poll found that over 62% of Americans have a “fair amount” or a “great deal” of trust in their state governments. Where does this difference arise? I believe it is the states’ willingness to change to fit the needs of the people.

Political scientist Francis Fukuyama called this political decay. When political systems fail to adjust to changing circumstances, they fail to act as efficient governing bodies. Political decay creates the exact circumstances we are seeing in our nation’s attitude toward our federal government. But we simply do not see this at the state level. A study by the Maryland State Constitutions Project found that U.S. State Constitutions have been amended over 12,000 times, amounting 15,000 pages.[6] The Massachusetts Constitution, the oldest written constitution still in effect today, has been revised 120 times, nearly four and a half times as many amendments as the National Constitution. And yet, the latter 4,500 word document is heralded as the pinnacle of all writings, and attempts to change it are seen by many Americans to be undermining the integrity of our nation and making us “less free.”[7]

This disparity in the number of changes simply comes from the flexibility that state governments offer and the smaller size of their relative constituencies. The New York Constitution can be amended through legislatively referred constitutional amendments or through constitutional conventions, and it seems to be this way for many states across the US.[8] It is a great deal easier to get a localized population to agree to something new, whereas expanding it to 320 million Americans would create inherent complexities and obstacles.

So why is the Constitution so difficult to change? It was intentional — our Founding Fathers instated many safeguards to prevent tyranny from a single leader or a majority party, and it came in the form of checks and balances, the electoral college, and the inherent difficulty in passing amendments.

Furthermore, we were founded as a Federalist nation, with powers delegated to the national government, the rest being reserved for the states. To opponents, amendments are seen as transferring control from the local to the national bodies. I see them as ways to continue a conversation on the betterment of our nation. Mary Frances Berry, a professor of American Social Thought at the University of Pennsylvania and a member of the United States Commission on Civil Rights, wrote, “It is clear that a strong effort to gain an amendment can influence government even when it fails.”[9] Calls for amendments and changes are reflections of the will of the American people, and a call for those elected to act on it, if not through constitutional change, at least through policy change.

Our Founding Fathers established a republican democracy, in which elected officials are the decision-makers. This system, another safeguard against populist majority turned tyranny, is the mechanism through which we must call for a Constitutional Convention. The truth is that a Constitutional Convention is in line with our Founding Fathers’ ideals. In fact, it is this kind of meeting that gave us our Constitution in the first place. When the Articles of Confederation weren’t working, the Founders produced this document to help us. I am not proposing a Constitutional Convention for the sake of producing a new Constitution, but to foster conversation about growth. A discussion on the purpose of our government in a time when most Americans seem to agree it is failing should be a national imperative. (Perhaps we agree it is failing because we cannot agree on the government’s purpose.)

A modern Constitutional Convention, while presumably looking quite different from the white men behind closed doors of the 1780s, would serve a very similar purpose: a chance to fix a document that has potential, but just doesn’t make the cut. The inflexible framework needs to be adapted for a 21st century environment. Technology and its impact on governing and security were not accounted for in the 1780s. No one anticipated the sheer size of our budgets, or the possibility of deficits in the trillions. The party system’s earliest incarnation was blasphemed by our first president; its current form could never have been taken into account. These are all changes that cannot be addressed through legislative action alone — it is time to adapt and change the framing of our foundation to match the present day.

Our major parties hold conventions every four years, but now is the time for a convention of real significance to the average, everyday American. It would be a call for elected officials to acknowledge the faults of the system and end the cycle of inefficiency. Imagine the excitement at the prospect of change, a promise former presidents Jimmy Carter, Bill Clinton, and Barack Obama campaigned on.[10] The attention and passion politics has attracted in the recent months should not be in vain; a Constitutional Convention has the potential to harness this energy and channel it into productivity.

We cannot simply fall to a new or modern interpretation of the Constitution — this debate has plagued the Supreme Court more in the past years than anything else. Judges we deem Conservative, more often than not, are originalists, meaning they attempt to interpret the Constitution as the founders intended. The pioneering of judicial review is not something explicitly included in the Constitution, and thus something originalists struggle to defend.[11] Justice Scalia wrote in his dissent in Obergefell v. Hodges that his major concern was not with gay marriage, but that the “decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”[12] Here was a man, so strictly bound to the Constitution yet at odds with his own power. When the chief interpreters of our Constitution cannot even agree on their role, there is clearly a dilemma.

A 2014 Pew Research poll shows that the majority of Americans favor politicians who “make compromises with people they disagree with” over “those who stick to their positions.”[13] Why must we continue to debate the Founders’ intentions rather than compromise on the creation of a document that serves our best interests in the modern world? We need tangible change if we aim to continue becoming a more perfect union, something our Founding Fathers tasked us to do. Initiating a new Constitutional Convention would harness our nation’s passion for politics and channel it into an elevated discourse with the potential for real results.

Sources

[1] “Google Trends”. 2017. Google Trends. Accessed March 1 2017.
[2] Dawsey, Josh, Matthew Nussbaum, Steven Shepard, and Annie Karni. 2016. “How Trump Has Proved The Founders Right”. POLITICO Magazine. Accessed March 1 2017.
[3] Gallup, Inc. 2017. “Congress And The Public”. Gallup.com. Accessed March 1 2017.
[4] Gallup, Inc. 2016. “Trust In Government”. Gallup.Com. Accessed March 1 2017.
[5] Gregory Wallace, CNN. 2017. “Voter Turnout At 20-Year Low In 2016”. CNN. Accessed March 1 2017.
[6] “Amending State Constitutions – Ballotpedia”. 2017. Ballotpedia.Org. Accessed March 1 2017.
[7] “Restore The Constitution | Ted Cruz For Senate”. 2017. Ted Cruz For Senate. Accessed March 1 2017.
[8] “Amending State Constitutions – Ballotpedia”. 2017. Ballotpedia.Org. Accessed March 1 2017.
[9] Berry’, Mary Frances. Sep. 13, 1987. “AMENDING THE CONSTITUTION; How Hard It Is To Change”. NYTimes.com. Accessed March 1 2017.
[10] “Presidential Campaign Slogans”. 2017. Presidentsusa.Net. Accessed March 1 2017.
[11] “Supreme Court & Judicial Review”. 2017. Constitutionality.Us. Accessed March 27 2017.
[12] “Obergefell V. Hodges 576 U.S. ___ (2015)”. 2017. Justia Law. Accessed March 1 2017.
[13] “Section 1: The Political Typology, Identity And Attitudes”. 2014. Pew Research Center For The People And The Press. Accessed March 1 2017.

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