CONSTITUTIONAL EXTINCTION

I have written several blogs over the past few years about the U.S. need for a Constitutional Convention, but I hadn’t thought of it in terms of constitutional extinction. My premise in these blogs has been that strict adherence to a document that is over 250 years old has to be restrictive at best. More likely, it is downright dangerous for the country’s future. The fact that, currently in the U.S., there is a Republican initiative among some to emphasize the letter of the original document, and eliminate the relevance of any amendment, is logically ridiculous – the road to constitutional extinction perhaps.

     The right to bear arms argument is an excellent example of this folly. The idea of religiously adhering to a concept that the Founding Fathers could not possibly have anticipated, is myopic and, quite honestly, stupid – when your experience is with muskets that take several minutes to reload, and apply that to an Uzzi is just plain dumb. Besides, as I have said before, the original constitution only guaranteed the right to bear arms as part of a duly constituted state militia, not as an individual right.

     I have just read an article that reports on an author who has produced a book, documenting all the amendments to the U.S. Constitution that have been proposed over the years since it was written – ALL 11,000, or so, of them. The author, historian Jill Lepore, bemoans the fact that the art of amendments seems to have been lost – no amendment has been adopted since 1971, she says. She even goes so far as to suggest that a constitution that can no longer be amended is dead, along with the prospects of a country it is supposed to serve.

     In 1982, President Ronald Reagan endorsed a balanced-budget amendment. In the 1990s, Republicans proposed anti-flag-burning amendments, fetal-personhood amendments and defense-of-marriage amendments. Lately, amendments have been coming from the left.           “Nationally, Democrats generally wish to amend constitutions, and Republicans to preserve them”, The Economist magazine proclaimed last month. On the same day as that proclamation, California’s Democratic governor, Gavin Newsom, proposed a federal constitutional amendment that would regulate gun ownership. “I don’t know what the hell else to do,” he said, in a tone of desperation.

     The consequences of a constitution frozen in time are dire. Consider, for instance, climate change. Members of Congress first began proposing environmental rights amendments in 1970. They got nowhere. Today, according to one researcher, 148 of the world’s 196 national constitutions include environmental protection provisions. But not the Constitution of the United States. Or take democratic legitimacy. Over the last decades, and beginning even earlier, nearly every other established democracy in the world has eliminated the type of antiquated, antidemocratic, provisions that still hobble the United States: the Electoral College, malapportionment in the Senate and lifetime tenure for Supreme Court justices. None of these problems can be fixed except by amending the Constitution, which, seemingly, can’t be done. In many ways it’s a constitutional Catch-22: To repair Senate malapportionment, for instance, you’d have to get a constitutional amendment through that malapportioned Senate.

     A written constitution ratified by the people — and subject to amendment by the people — is an American invention. In the 18th century, people who drafted constitutions, and commented on constitutionalism, came to agree that if such a strange, new and fragile thing as a written constitution were to endure, it would, as time passed, need to be both repaired and improved, mended and amended. “We have every opportunity and every encouragement before us, to form the noblest purest constitution on the face of the earth,” Thomas Paine wrote in “Common Sense,” published in January 1776.

     From the very start, Americans proposed amendments. The demand for amendability came from ordinary Americans who insisted that their constitutions be revisable, “to rectify the errors that will creep in through lapse of time, or alteration of situation,” as one Massachusetts town meeting put it. When Massachusetts sent a constitution to voters for ratification in 1778, they rejected it by a margin of almost five to one, mainly because, as one town complained, “We don’t find any sufficient provision for any alteration or amendment of this Constitution,” except by the legislature itself, “whereas, it appears to us, at least, of the highest importance, that a door should be left open for the people to move in this matter,” because without such a door the only way people would be able to change the government would be “commotions, mobs, bloodshed and Civil War.”

     We seem to awfully close to that state today.

     Amendment is therefore a constitutional mechanism necessary to avoid insurrection. The U.S. Constitution was itself an act of amendment, written in 1787 because the Articles of Confederation were technically amendable but, for all practical purposes, not. At the constitutional convention in Philadelphia, the Virginia delegate George Mason, pointing out that everyone knew the Constitution that they were drafting was imperfect, argued that “amendments therefore will be necessary, and it will be better to provide for them in an easy, regular and constitutional way than to trust to chance and violence.”

     What happened to that idea?

     Apparently, no one has ever taken stock of this history of failed amendments, an America that never was, but was wanted by some, and sometimes by very many, or even most. Americans won’t be able to agree anytime soon on how to amend the U.S. Constitution and will instead face the ongoing risk of “commotions, mobs, bloodshed and Civil War” and, possible constitutional extinction.

     Amending is what makes the Constitution everyone’s. But until the Constitution can once again be amended, only the Supreme Court can change it. And if that bench insists, perversely, illogically and in defiance of the very idea of constitutionalism that all change must be rooted in the past, its justices have got a whole lot of historical reading to do.