Our Constitution Is Not the Solution, It’s the Problem

About 240 years ago, an overwhelmingly agrarian society of just 2.5 million people, consisting of a diverse group of former British colonies, perched on the edge of an largely mysterious continent, with an economy at least half-reliant on slave labor, embarked on an experiment that had not been tried on such a scale for almost 2,000 years: creating a self-governing republic.

The result was a brilliant, yet deeply flawed, compromise that fostered oligarchy, encouraged genocide and apartheid, oppressed and exploited the vast majority of its subjects, and collapsed into civil war within a few generations. Not the best track record.

Even so, many things about the Constitution worked well enough for a rapidly changing society to adapt and muddle through with the original operating system: the separation of powers, the rule of law, expanding the franchise to more and more people, and a habitual suspicion of, and limitation upon, the powers of government.

But many things about the Constitution did not work so well: the continual toleration of extreme political and economic inequality, white supremacy and a brutal racial caste system, the failure to anticipate or harness party politics, an incredibly primitive, radically malapportioned, and inflexible system of representation, the lack of any economic or social rights, and a federalism that was as often the source of conflict, oppression, and chaos, as the intended source of innovation, flexibility, and freedom.

At best, we have muddled through fitfully with experimentation and ad hoc adaptations and inventions. There was just enough flexibility to stave off collapse and chaos most of the time. One really can’t say much more for our current Constitution than that. Despite its creaky deficiencies and ancient flaws, we continue to worship a document that is manifestly a faulty operating system for the diverse, continent-wide, technological society that is the world’s pre-eminent economy and military super-power we became. The result is that while we are the richest, most powerful nation in the world — for now — we are also one of the most unequal, least socially mobile, most violent, unhealthiest, politically irrational, poorly-governed and too often dysfunctional major nation on earth.

Our current emergency of political legitimacy, governance dysfunction, and affliction with authoritarianism and fascism is not despite our ancient constitution, it is because of it.

Far too often, when we try to reach a solution to any of our problems, we find the Constitution is an impediment to progress, not a source of solutions.

We need a new foundation, and a deep and collective conversation about what American now wants and needs from its government. The constitution we have now is a disaster that simply hasn’t yet self-destructed fatally. Now that we have globe-spanning economic ties, a vast ecological footprint changing the very nature of life on earth, and weapons capable of ending our entire global civilization, any such disaster would have dire consequences for all of humanity.

We need a new constitutional convention to truly put American democracy on a firm, fair, and modern basis. Since our last constitutional founding, we have a quarter-millennium of our own, and other cultures’ and nations’ experiences and innovations with democracy and governance to draw from. We have a quarter-millennium of legal, political, theoretical, scientific, cultural, and technological progress to consider and use to craft a new basic operating system for the society we are now, and want to be in the future.

Many will be rightly concerned about what might emerge from that discussion, but the present moment is stark evidence that, whatever we decide upon collectively, it will certainly be better than the suicide pact our current constitution has become.

I could list all the ways our current Constitution holds us back, trips us up, ties our hands, and binds us to the prejudices, compromises and mistakes of the past, but I’m confident that everyone can create their own list of such liabilities, given a just few minutes reflection on our history and our present crisis. There is a lot of analysis and commentary on the subject out there if one is ready to seek and absorb it.

I will give just one obvious example: the radical malapportionment of political power built inextricably into very nature of the United States’ Senate. Giving every state two Senators, regardless of population, was a necessary compromise to bring smaller states into the union over 200 years ago. But now, it is merely a source of radical and unjust political inequality among our citizens. The power of a Wyomingite citizen is 70 times that of a Californian citizen in the Senate. Just how is that justifiable? Why must states have equal political representation in a Senate today? That unfairness is built into the very structure of the Constitution’s apportionment of Congressional power between the chambers. You might amend the Constitution to lessen the impact of the Senate’s inequity, but you cannot eliminate it so long as the fundamental character of the Senate remains. Before you ask, yes, I would argue for the elimination of the Senate as currently conceived in a new constitution.

My purpose here is not to argue over all the flaws of our present constitution and how to fix them. My point is to ask you to question the assumptions and compromises that created our constitution. I believe that the most penetrating analysis and the best solutions will only emerge in the dialectical process of truly deep and deliberative democratic discussion.

What I assert here is that our current crises indicates a need to begin a real discussion about how to move forward on a wholly new constitution.

I assert that we need to cease our veneration and reliance on an ancient, experimental operating system designed to run a society we no longer even resemble. As much as I have studied our current Constitution as a living legal document, studied the history of compromises and innovations that have allowed us to muddle forward, and admire the collective intellectual effort that has gotten us this far, I have no faith left that we can jury-rig solutions to running the modern, scientific, globalized, and worldly nation we aspire to be on such a deeply flawed basis.

I assert that we need a national discussion about what a new constitutional moment might look like in a world with the internet and widely educated and diverse populace. A hint: I don’t believe it can look like a salon of a few dozen, or even a few hundred, elites gathered in a constitutional convention, with gerrymandered states legislatures ratifying or rejecting the result.

I assert that we need to start organizing and advocating for a renewal of our national project somewhere, somehow, and right now.

I urge everyone with the interest to read an essay like this one to give this subject some considered thought. The solutions we need will depend on the participation, energy, and activism of you, and lots of citizens like you, not the reality show characters and corporate shills we are calling politicians these days.

I hope that you will give some thought to the big picture, even as the details of our current emergency pre-occupy our daily lives.

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