Thoughts on Constitution Day

One of the exceptional features of the United States is surely that, by congressional requirement, every university in the country that accepts any federal funds is obligated to celebrate (or at least commemorate) Constitution Day. Many universities indeed schedule events on Sept. 17, the anniversary of the decision by all by three of the delegates assembled in Philadelphia to sign the document resulting from the almost four months of meetings (and contention) and to send it on to Congress with a request that it in turn send it on to the states for ratification. Perhaps needless to say, most of the activities can be described as celebrations.

I am, however, highly critical of the Constitution. In 2006 I published Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), emphasizing the many ways that it violates basic 21st-century presuppositions of democratic governance. 2012 saw the publication of Framed: America's 51 Constitutions and the Crisis of Governance, arguing that the much-cited dysfunctionality of contemporary American politics — labeled by New York Times columnist Thomas L. Friedman as "pathological" — is linked in significant measure to the fact that we continue to be trapped in an 18th-century structure of politics that remains remarkably unchanged since then in many basic ways. Noted political scientists and Beltway commentators Norman Ornstein and Thomas Mann published a much-discussed book last year, It's Even Worse than It Looks: How the American Constitutional System Collided With the New Politics of Extremism. I fully agree with their expressions of dismay; what upsets me is that although they allude to "the American constitutional system" in their title, they fail to address the possibility that we must in fact address defects in the American constitutional order and try to alleviate them by amendment.


By coincidence, Constitution Day this year falls on the first day of a seminar that I am co-teaching with Lawrence Lessig at the Harvard Law School, which will address the desirability and implications of calling a new constitutional convention to engage in the long-overdue assessment of the degree to which we are well served by the Constitution. Lessig has achieved justified fame for his passionate writings focusing on the insidious "corruption" produced by our system of campaign financing, especially after the Supreme Court's 2010 decision in the Citizens United case that liberated corporations to spend literally millions of dollars trying to affect political races throughout the country. I tend instead to focus far more on the implications of basic institutions created in 1787, including bicameralism, distorted allocations of voting power in the Senate and the near-insurmountable hindrances placed in the way of achieving constitutional change. What unites us, though, is our belief that a new constitutional convention, the possibility of which is contemplated in Article V of the Constitution itself, is at least desirable and perhaps even necessary. Even if one thinks that current members of Congress are sufficiently public-spirited to consider quite radical changes in the political system in which they have flourished, including mechanisms of election finance, it remains the case that Congress has far too much on its plate to take the significant amount of time that would be necessary to reflect and then engage in genuinely deliberative debate about a host of interconnected features of the Constitution. Thus the need for a separate convention, whose delegates would be free to spend the time and energy doing exactly what the framers in 1787 did.

Even if I have no desire to celebrate the 1787 Constitution as a model for our 21st-century political reality, I equally have no desire to denigrate those whom we honor as “framers.” With few exceptions, they were devoted public servants, struggling to resolve what most of them in Philadelphia viewed as a genuine “existential crisis” generated by the patently inadequate structures of government created by the 1781 Articles of Confederation. Edmund Randolph, the governor of Virginia, in his maiden speech to the convention, described that political system as “imbecilic.” Indeed, he went on to proclaim, “There are great seasons when persons with limited powers are justified in exceeding them, and a person would be contemptible not to risk it.” What he was referring to was the fact that the delegates in Philadelphia were going far beyond their marching orders, so to speak. First, they rejected the rather modest authorization by Congress that their task was simply to “revise” the Articles of Confederation. Instead, they ruthlessly scrapped them. Secondly, the most important aspect of the articles that was scrapped, in context, was Article XIII, which required unanimous consent of the state legislatures. This explains, for example, why Rhode Island, correctly fearing a “runaway convention,” refrained from sending any delegates at all to Philadelphia. Rhode Islanders made the disastrous error of believing that Article XIII would protect them by allowing them to veto any proposals they objected to. Instead, Article VII of the Constitution provided that it would be sufficient if only nine states ratified, and ratification would occur by the vote of popularly elected conventions instead of by state legislatures that would likely be more hostile to some of the changes that were proposed. Rhode Island, therefore, was not a member of the United States of America on April 30, 1789, when George Washington was inaugurated; neither was North Carolina. It didn’t matter. Both states later ratified, but the point is that their non-ratification did not matter with regard to achieving the fundamental constitutional changes that those in Philadelphia believed were necessary.

It is precisely this willingness to ask radical questions and produce equally radical responses, at least in the context of the times, that deserves celebration. Alexander Hamilton, in the very first of the essays that we know as The Federalist Papers, told his 1787 audience, “It seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” There were two elements to the “reflection and choice” of which he spoke. The first was a willingness to subject the existing political order to an unsentimental, intellectually ruthless, evaluation. He begins the essay by referring to the “unequivocal experience of the inefficiency of the subsisting federal government.” Later, in the 15th Federalist article, he would also refer to the “imbecile” quality of that government established by the America's first (and largely forgotten) constitution.

Second, of course, is presenting arguments on behalf of the suggested changes. Hamilton and supporters of the new Constitution obviously believed that institutions matter, that well-designed governments could help to achieve what they called “public happiness” and that poorly designed ones, like the government established under the articles, would work against that worthy goal. Hamilton and his primary co-author, James Madison, didn’t rely simply on logical deduction from abstract premises; they also spoke frequently of the importance of the “lessons of experience.”

One of the great challenges facing the United States today is whether we are willing to emulate what is best in the tradition of the framers, which is to ask probing questions about what experience teaches and to countenance the possibility that the answers involve perhaps equally fundamental changes as those generated by the 1787 Convention. To deny this as even a possibility is to reject “reflection and choice” and to adopt what at its worst is an infantile culture of blind trust in a constitution. However much one might admire the framers, one must always remember that they were human, and one attribute of being human is to err. We can surely recognize this with regard to various compromises made with slavery. It would be bizarre beyond belief if anyone criticized later changes in the Constitution — the result of a civil war that killed more than 750,000 people, about 2 percent of the entire population of the United States — because, after all, they rejected the earlier recognition of the right to own human beings as property. It is no less bizarre to assume, without serious reflection and debate, that other choices made 225 years ago, even if less morally freighted than what one philosopher has called the “rotten compromises” with slave owners, serve us well today. 

If one looks at the 50 American states, all of which have their own constitutions, one discovers that the typical state has had about three different constitutions over its history, and that amendments to state constitutions are rife. Some people denigrate state constitution as not “really” constitutions, because they often lack the presumed permanence of the United States Constitution. Another way of looking at this, though, is that the American states have often vindicated their description as “little laboratories of experimentation” precisely by being willing to emulate the framers and engage in repeated episodes of “reflection and choice,” often coming to the conclusion that new contexts require changed constitutional forms. 

So for me — and I hope for an increasing number of Americans — the best way to celebrate Constitution Day would be to read the truly inspiring Preamble to the Constitution and then ask hard and pointed questions about the degree to which what comes after the Preamble works against achieving the goals of “establishing justice,” “securing the blessings of liberty,” “providing for the common defense” or guaranteeing conditions of “domestic tranquility.”