OP-ED: What’s wrong with the Constitution?
The Constitution was drafted at the Constitutional Convention between May 25 and Sept. 17, 1787. Our founding fathers assembled at Independence Hall in Philadelphia to create a document to replace the ineffective Articles of Confederation.
The original Constitution was highly flawed. It denied women and minorities their basic human rights for decades. It protected slavery. It denied civil liberties that should have been guaranteed. The Constitution did provide for an amendment process to update and correct the document, which will be the subject of this commentary.
Since the Constitution became operational in 1789, it has been amended 27 times. The first 10 amendments, collectively termed the Bill of Rights, offer protections of individual liberty and justice and place restrictions on the powers of government within the states. Amendments 13-15 are known as the post-Civil War Reconstruction Amendments. Later amendments expand individual civil rights protections, with some addressing issues related to federal authority or modifying government processes and procedures.
As we approach the 250th anniversary of the nation’s founding, there are at least three reasons why every concerned American should be asking the question, “Do we have the Constitution we want, or should it be amended for the modern age?”
First, when tribal politics pull the nation apart, would an updated Constitution provide an improved roadmap to resolve disputes?
Second, would it make more sense to take action as a people to update the Constitution, rather than to wait on the edge of our seats as nine politically motivated Supreme Court Justices decide important issues?
Third, should we rely on a 250-year-old document to determine the organization and mission of our government in the modern world? Today, we are burdened with the electoral college, a colonial relic that in 1787 attempted to limit the voting power of the “uneducated masses.” The electoral college has made five losing candidates of the popular vote into presidents.
There are no term limits for Congress or the Supreme Court. The interpretation of the second amendment is archaic. The Constitution continues the tradition of an undemocratic Senate, with two elected members per state. Under this system, citizens in sparsely populated Wyoming enjoy 68 times more political influence than in California.
During the Constitutional Convention, Madison feared that frequent amendments would be destabilizing. His solution was Article 5, which allows amendment by approval of two-thirds of both houses of Congress and by three-quarters of the states. This has given our Constitution (the oldest in the world) one of the lowest amendment rates.
The last amendment to the Constitution was in 1992, which established that congressional pay raises can only be granted in the session after the one in which they were approved. By comparison, Germany’s constitution has been amended a reasonable 60 times since 1949. On the other hand, in countries to our south where the amendment process is easier to activate, Brazil has passed more than 130 amendments and Mexico 737 in less than a century. Political observers believe the overuse of amendments can cause economic chaos and loss of public confidence. It is indeed a complex task to find the procedural sweet spot when amending constitutions.
This year a timely new book has hit the market, “We the People: A History of the U.S. Constitution,” written by the best-selling author and professor of American History at Harvard, Jill Lepore. The work was published just as our nation could use some enlightened observations. This volume follows Lapore’s landmark history of the United States, “These Truths,” published in 2018.
The background leading up to the writing of this book is fascinating. Lapore asked her undergraduate history students to hold a mock constitutional convention. When she tried to point the students to a searchable archive of past proposed amendments, she could not find one. No researcher had ever pulled together the text of every suggested amendment to the Constitution.
According to the Harvard Law Spotlight, Lapore and several students, “organized the ‘Amendments Project,’ which went live in 2023 and includes thousands of failed amendments, not just joint resolutions of Congress but also never acted-on petitions submitted to Congress from the public.” Altogether, nearly 12,000 amendments have been introduced in Congress since 1789.
The project “proved to be a powerful inspiration for her new book.” Lapore’s conclusion was that “the charter’s ineffective mechanism for amendment has driven both progressives and conservatives to seek change through the courts and, ultimately, has contributed to the country’s profound political polarization.”
Lepore writes that the framers built a mechanism for peaceful, deliberative change, yet Americans have forgotten this “philosophy of amendment.” The founders, she notes, anticipated future generations would “tinker” with the Constitution. However, modern-day “veneration” makes the document effectively impossible to amend.
She argues that the Supreme Court’s dominance in constitutional interpretation has, sadly, replaced amendments. Lapore criticizes the “originalist legal theory,” (based on the Constitution’s original public meaning) as a conservative political ideology rather than a helpful explanation. This has contributed to paralysis.
Lepore calls for citizen engagement to create a climate for change. She suggests that public discussion and debate about what the Constitution should mean, perhaps through forums like a constitutional convention, are “good for democracy” even if the results are not universally popular.
The framework has always been in place for a more flexible Constitution. With some bipartisan agreement to set the stage, “we the people” could refashion our Constitution into a document that is responsive to our present needs.
Gary Stout is a Washington attorney.