Friday, March 30, 2007

Constitution Pipe Dream

[posted by Callimachus]

A couple weeks ago, Reader posted a link to someone's suggestion that it's time to sit down and re-write the U.S. constitution from scratch.

That idea comes around from time to time. Usually I want to urge the people who impulsively promote it (I don't mean my co-blogger to be in this category, by the way) to sit down in a quiet room and think about it for a minute:

I'm not a Believer, but if there's evidence that America is God's chosen nation, showered with His blessings, it's that we received our national government from the one generation in our history that had a leadership class steeped in political philosophy but also in practical action and vigorous leadership. It was the generation of Americans least beholden to the more enthusiastic, judgmental, and un-intellectual aspects of Christianity. It was the least partisan and most public-spirited we've ever been.

Look around you today for a Madison or a Hamilton. Hell, you'd be doing well to unearth a modern-day Gouverneur Morris. The only modern generation I'd trust with the task is the one that predominated in the political scene in this country from 1935-1955.

Yet undeniably our Constitution is an outworn garment, cut for another people in another time. We're no longer the scattered farming people that stood to be fitted for it. Based on their writings, the Founders would have expected us to have rewritten the thing several times by now, I suspect.

Here's my pipe dream: Beginning at some arbitrary date -- say 10 years down the road -- the nation will revert to governance by the Constitution in its original, 1787, as-passed form.

That will scare people. Good. Slavery won't be illegal? Votes for women not guaranteed? No equal protection? No direct election of senators? No First Amendment? No Fifth? No Second?

Because in the intervening 10 years, the nation will have the opportunity to craft its own set of amendments -- limit it to the current 27, if you like -- to modify this document. I'm not talking about great, big omnibus amendments. I'm talking about real, discreet changes.

Don't call the amendment-writing convention right away. Give people a couple years to study the old document, to see how it will work. Actually learn the machinery of government that was conceived in 1787. We'll have to understand it inside and out before we can begin talking about amending it.

And we'll have to think about the amendments not just in terms of remedying this immediate wrong or preventing that perceived threat. But as organic alterations to a functioning system of national life.

Do we need a bill of rights, or are such rights inherently protected? What did Madison think about that? Do you like the term "wall of separation between church and state?" Then write it in there (it's not there now).

Do we really need to limit presidents to two terms by law -- or was that a Republican rebuke of Roosevelt that intruded on the rights of the people to decide such things?

Do we want to enshrine rights to privacy, to reproductive choice, in the document? Then do so explicitly, not by discovering them in some hasty Reconstruction legal language meant to punish a particular collective behavior in the South.

But scan every proposed new amendment carefully for what could be sprung from it by future generations of courts.

Even if you limit it to the current 27, you have more to work with than is in there now: The 18th and 21st cancel each other out, for instance. Though I'd be tempted to leave them in as a standing rebuke to all attempts at legislating morality or social engineering.

It would be a national mud wrestling fest; it would consume us like a decade-long NCAA tournament; and in the end, the spirit of the two political parties probably would make a shambles of it.

Which is why I'd hope to see a well-written amendment to limit the power of political parties.

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