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The Threat of Constitutional Morass

government Policy

One of the great virtues of the American people is their veneration of the US Constitution.  As a document predominantly based on the philosophical underpinnings of classical liberalism, it serves as one of the preeminent models of rights-promoting legislation in history alongside the Magna Carta.  Notwithstanding Article 1 (the “Three-Fifth’s Compromise” that saw slaves relegated to 3/5ths of a human status for House seat allocation purposes), the XVIth Amendment (the income tax), and the XVIIIth Amendment (prohibition), it broadly stands as a protector of human freedom despite the odd interpretations of some of its clauses (looking at you, Commerce Clause) (and woeful underuse of the Xth Amendment, federalism).  Too many constitutions are transitory documents written with expediency or political advantage in mind.  Even others are filled with mealy-mouthed language and plentiful loopholes for when the logical conclusions of certain liberties are inconvenient (Hi, Canada).

It’s odd, then, that a people which places the founding document of its state in the same class as the Bible should be so enamoured of changing their constitutions to encompass common policy.  Several Republican candidates, as part of their collective Trump-induced break with reality, threw about the idea of repealing America’s birthright citizenship policy (where simply being born on US territory grants citizenship*).  The problem with this (aside from continuing to squander America’s immigrant advantage) is that citizenship by birthright is guaranteed in the XIVth Amendment.  It was enshrined there deliberately during the post-Civil War “Reconstruction” phase to ensure that African Americans couldn’t be stripped of their citizenship if a Congress ambivalent to basic humanity ever came into power (good choice).

Given that there are 50 states, changing the US Constitution is no small feat.  Which is on purpose – the American framework is supposed to govern a lose federation of largely independent states.

Amending the US Constitution is not an easy process.  Congress approves text, by a 2/3rds majority in both Houses OR 2/3rds of the states call for a national convention which passes proposed text.  Then the legislatures or state ratifying conventions in 3/4ths of the states need to pass the text.  Given that there are 50 states, changing the US Constitution is no small feat.  Which is on purpose – the American framework is supposed to govern a lose federation of largely independent states.  It’s not something to be flippant about.  There’s a reason that the mere idea of re-opening the Canada Act and the Constitution Act gives Prime Ministers of all stripes nightmares.  The evolution of Canada’s once closely-held provinces into bickering principalities and the amending formula’s requirement for consensus (7/10 provinces with 55%+ of the population) introduce enough veto points to stymie change (the essential requirement of Quebec and/or Ontario as well as one of the Maritime provinces which tend to be disproportionate beneficiaries of controversial constitutional settlements like the Senate, for example).  Advocates of gun control won’t be repealing the IInd Amendment, birthright citizenship is going nowhere, and the Commerce Clause will continue to be stretched so far that you could drive a caravan through it.

Constitutions are devilishly hard to change on purpose, but what about when they desperately need it?  Garrett Epps’ quality piece over at The Atlantic, Can the Constitution Govern America’s Sprawling Empire? details some of the major failings of the American constitutional order.  As the United States has picked up pieces of territory throughout the world, it still doesn’t have a constitutional settlement that recognizes the problems faced by territories such as American Samoa and Puerto Rico (what is in effect a colony the size of Toronto).  The status of indigenous communities, which have long been fairly autonomous “dependent nations”, is also starting to cause problems which shouldn’t be simply left to the Supreme Court to solve.

Indeed, the Supreme Court has been taking more and more of a role in policymaking as the limits of the Constitution are continually tested.  It’s being asked to decide on questions which are most properly addressed at the constitutional level.  Unfortunately, the idea of opening the Constitution is mostly limited to those who want to play political games over gay marriage, birthright citizenship, and gun control.

freedom, as Burke described it, is the organic outgrowth of an ordered society which itself grows from the seeds of liberty.  The risk of overthrow and replacement fells the ancient oak of constitutional order and replaces it with an untried sapling.

Letting a Constitution ossify is dangerous, especially as a political order begins to outgrow the rules of the past.  This thinking is most prominently held by those who believe that constitutions are “living documents” which change with the times.  I don’t hold to this – it’s almost always a byword for lawlessness, a wish to circumvent the system because one’s own idea of progress should not be hindered by the rights of others.  That said, documents are always pieces of their time and need to be changed to reflect new circumstances.  As much as the US Constitution has widespread legitimacy, it can only be stretched so far.  The US Government continues to ignore key rights with the complicity of subservient courts (Amendments I, II, IV, V, VI, VIII, IX, and X are all threatened by the agendas of drug/terror warriors and policymakers), threatening the legitimacy of the document as a whole.  Constitutional breakdown happens, and when it happens it isn’t pretty.  We might realize new rights, as we did at the signing of Magna Carta.  Or we could lose important freedoms as the constitutional process is captured, which is the norm.  This is not a gamble we should be willing to take – freedom, as Burke described it, is the organic outgrowth of an ordered society which itself grows from the seeds of liberty.  The risk of overthrow and replacement fells the ancient oak of constitutional order and replaces it with an untried sapling.  A constitutional convention to reaffirm the principle that the constitution hedges in the government and adapts outdated provisions to the modern day could help with some aspects of political gridlock as the rules receive a renewed dose of legitimacy.

What specific provisions would I add to give the Constitution additional teeth?

  1. Introduce stronger, Constitutionally-binding tests for when rights can be overruled by the state to replace problematic precedent (Canada could also use something like this, as the “reasonable limits” test is absurd and the Notwithstanding Clause a travesty).
  2. Close loopholes in the Commerce Clause to restore the integrity of the Xth Amendment.
  3. Repeal the Electoral College and introduce direct election to the Presidency.
  4. Formally recognize the actual place of indigenous communities and extra-national territories within the American community.

Suggestions 2 and 3 have roughly a snowball’s chance in Hell of passing thanks to the numerical supremacy of small states and beneficiaries of federal largess respectively, but 1 and 4 would both be important additions to the US Constitution that could give it newfound strength and importance.  Ultimately, parties on all sides need to stop using the Constitution as a weapon and remember its role as the constitutive document of political order.  We need to treat foundational documents with the respect they deserve, but sometimes that means working to ensure their continued relevance.

 

*This is actually not at all true because reasons but for all intents and purposes, that's how it works.  Unless you wind up in the odd category of "non-citizen national".
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