New York Times:
Let’s Give Up on the Constitution
AS 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.
Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?
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.
As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?
This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.
Funny, but I was just thinking last night how lucky we got two and a quarter centuries ago. Look at how many times in history that one dictatorship gets replaced with another. Or worse, a dictatorship gets followed by a bloody civil war. Think about the French Revolution or the former Yugoslavia.
With one notable exception we have managed to maintain internal peace and stability in this country since its founding. It hasn’t been perfect or entirely peaceful. There have been riots and assassinations. We paid a high cost for staying together as a nation, including the acceptance of slavery and Jim Crow segregation. African Americans bore the brunt of that cost.
But we muddled through somehow. How many nations on this planet have managed to keep the same government in place for over two centuries? Think about it.
Could we come up with a better system? Maybe. But it still won’t be perfect. But if we change what we have now we might fix some problems but we would also create new ones.
Also consider this – the reason that the Constitution gets in the way from time to time is that some individual or group invokes it. Sometimes it’s the other guys who do it. Some times it’s our side that feels the need to throw a monkey wrench into whatever the majority is up to.
The real problem isn’t that the Constitution gets in the way, it’s that it doesn’t get in the way often enough. (Can you say “Obamacare”?)