“BUILT ON HISTORY”
by ProfDave, ©2020
Do we need a new one? Should the Constitution be interpreted as an historical document or a “dynamic” institution? There is the question of truth, first of all. The true meaning of any document is dependent on – even “relative” to – the historical context and the intent of those who wrote and enacted it. We can bend it a little bit for those who honored it – and didn’t throw it out – down through the years, but not very much. We do have amendments – and those amendments that didn’t happen, too. A century and a half of the consistent teaching of history and patriotism (not to mention the King James Bible) in the public schools made secular saints of The Founders and a sacred document out of the Constitution. Maybe that was extreme, but it is what it is, and we should have some respect for its integrity, not claiming it says what it does not say.
Secondly, there is the political science of the way the thing actually has functioned in national life: never quite as intended, but we have grown to depend on it. Abandoning or distorting it would amount to regime change.
Thirdly, it is a fair question to ask if we want to change our nation in ways that the Constitution, as interpreted literally, does not allow. If so, the honest thing to do is to hold a Constitutional Convention, as some countries have done dozens of times and come up with a new one. If Biden and Pelosi do it, can you imagine how many thousands of pages it would take? The dishonest thing is to go on spinning legal fictions and fairy tales on the old one. That is what seems to be meant by a “dynamic interpretation.”
It would be, I think, rather easy to come up with a Constitution that was more efficient, rational, and “popular.” The 18th century had not yet evolved political parties as we know them, nor cabinet government, let alone czars! They intentionally built in roadblocks to popular sovereignty, and multiple mechanisms to deadlock the whole process, so that getting things done “while the iron is hot” would be impossible. It did not occur to them that the federal government should solve social problems, help the poor, pay for education, insure equality, build roads, regulate health care, ad infinitum. Washington was almost as far away to them as London – much too far away to mess with local affairs. Their big concerns were 1. To prevent foreign intervention in American lives, 2. To prevent Federal intervention in American lives, and 3. to keep the Feds from interfering in State affairs. Minorities should not rule. Majorities should not ride roughshod over minorities. No one person or party should rule unchecked. But the process should also be insulated from demagogues and power-surges of popular opinion. So only the overwhelming consensus of cool heads, in very limited spheres, should actually get done.
Do we really want a strong central government? For example, you could do away with the Electoral College – it never worked anyway – and have the Executive branch directly elected – perhaps winner-takes-all for state congressional delegations, too? It would streamline things to do away with the confirmation process. While you are at it, give the President and the Cabinet the authority (sole authority?) to draft legislation. Two houses of Congress gum up the works, so do away with the Senate. Just let them vote the President’s program up or down – or maybe a one-hour debate between the major party leaders during prime time and let the people vote via the internet! And who needs the Supreme Court, we have the network news anchors – or better yet, a government-controlled PBS! How about “German Democracy: the election of the leader and the absolute authority of the latter?” [A. Hitler] Guaranteed we would solve problems quickly – and create them quickly, too.
Many voices have assailed the President for not conducting the Covid-19 response in a centralized, China-style manner, with a massive federal program to hyper-manage things. Those same voices would have been first to cry “dictator” if he had done so, and with some justice. Democracy does not work by decree, but by both sides working it together. Since the parties were determined not to work together on the federal level, delegating to the states, chaotic though it might be, was a reasonable way through the impasse.
In updating our constitution, however, we would do well to remember a bit of European history. Our forefathers did a dangerous thing. A few years later their French counterparts wrote constitutions on the basis of reason and efficiency (the Enlightenment) and it resulted in a series of blood-baths. Tyranny passed from the one to the many and back to the few – eventually to Napoleon. The British constitution was discovered, not written, and ours was based on their experience. It was Enlightened, too, but tinged with a Calvinist distrust of human nature. Our Constitution was built on history, it did not discard it, and its drafters deeply distrusted centralized power and swift governmental action. It has meant that domestic problems go on and on, while we get to keep our freedom. Maybe they were right. Is Post-Modern any wiser than Enlightenment? Has human nature changed that much over the years? Not!
David W. Heughins (“ProfDave”) is Adjunct Professor of History at Nazarene Bible College. He holds a BA from Eastern Nazarene College and a PhD in history from the University of Minnesota. He is the author of Holiness in 12 Steps (2020). He is a Vietnam veteran and is retired, living with his daughter and three grandchildren in Connecticut.”