A Georgetown professor, Louis Michael Seidman, has caused a controversy in the blogosphere with a recent op-ed in the New York Times where he suggested that we give up on the U.S. Constitution. In it he writes that “the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.” He believes that the Constitution “has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse.”
No one would disagree with him that our government is currently a dysfunctional mess, but the Constitution is not wholly to blame. One can point to things such as the Senate’s filibuster (the 60 vote super-majority threshold that has gummed up the works of government), secret holds that senators can place on government nominees, political gerrymandering that allows politicians to draw their own districts, unlimited money in our elections to buy off lawmakers, and the madness that is the debt ceiling, a law that requires Congress to extend the right for the government to borrow money that it has already approved spending in its budgets.
On these counts, the filibuster is an unconstitutional rule in the Senate that has been badly abused and should be abolished by the simple majority that the Constitution requires in both chambers of Congress (the same can be said of holds on nominees for the executive branch and judicial vacancies). The debt ceiling is a creation of Congress, not the Constitution. In fact, the 14th Amendment specifically states that:
“The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”
So if the problem with our government is not the Constitution itself but the people that run the institutions, what is left of the professor’s argument? The professor suggests that we should be “held together by longstanding traditions, accepted modes of procedure and engaged citizens.” Well, the Constitution is exactly that — longstanding traditions such as free speech and assembly — that can be altered at the will of the governed if a sufficient majority exist to alter it. However, it is longstanding traditions not in the Constitution, such as the filibuster and gerrymandering, that are holding us back in the first place.
That being said, he gets his history right. The Founders were hardly the saints that they have been made out to be by some. Many of them were slaveholders, including Thomas Jefferson and James Madison. Nor is the document itself perfect. The original Constitution called for senators to be elected by state legislatures. Slavery was enshrined in the Constitution with its provision that African slaves be counted as 3/5 of a person. The Electoral College is indeed an outdated relic of the past. Likewise, the Senate is unrepresentative of the country at large.
None of its faults justify abandoning the Constitution. It’s not a flawless document, but it has kept the country in perpetuity for 200+ years (albeit with a civil war). The durability of American society and the Constitution itself cannot be said of nearly any other country. Just ask the monarchs of Europe, the Soviet Union or the dictators of South America. The one thing that all Americans should be able to agree on is that the Constitution, while not perfect, is the cornerstone of our democracy. The politicians who run our institutions have failed us, not the Constitution.