Is the Constitution Obsolete?

If you write a column called “In the News” long enough, some of your subjects eventually begin to catch up with one another. This space recently (November 1995) was occupied with the past history of the struggle for the item veto, and behold, in April 1996, it ended in victory for the veto’s advocates. If the law giving presidents the right to selectively kill individual appropriations is sustained against any Court challenge, it will mark an important constitutional change that shifts an allotment of budgetary power from Congress to the Executive. Yet it will not demand the complex process of formal amendment.

Presumably that should please Daniel Lazare, whose recent book The Frozen Republic: How the Constitution Is Paralyzing Democracy argues that the venerated eighteenth-century charter needs to be overhauled or even scrapped because it blocks the way to any modernization of American government that will give “the people” power to cope with twenty-first-century problems. Lazare sees us as complacent in the face of gridlock because of our blind faith in the Constitution. Well! Only about a year ago [May/June 1995] another of these columns dealt with a volume by Richard B. Bernstein and Jerome Agel, Amending America, whose subtitle suggested that the adoration was only skin-deep. It was: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? Plainly, the two books have a very different take on how Americans really feel about the 1787 compact. Who is in the right?

If I come down on the side of Bernstein-Agel, it is not because—confession of interest—I was once a colleague of Bernstein, nor is it from a lack of sympathy with Lazare’s social-democratic orientation. But in making his case that Constitution worship embeds the feet of democracy in cement just when it needs to take giant steps, I think he has seriously misread the facts.

To begin with, he holds that the original sin was in the Constitutional Convention itself. He believes (without citing much of the record in support) that the members were bewitched by the puritanical views of an English “Country” party that automatically distrusted central government, worshiped traditional Elizabethan institutions dominated by local interests, and “feared modernization [and] progress.” So they put together a system looking back to a golden day when power was divided and traditional law was in the saddle rather than fallible majorities—a system that “rather than focusing energy ... would disperse, muffle and absorb it.”

Oh? If that was all the framers wanted, they could have left ineffectual Articles of Confederation in place. In fact, their main purpose was to “focus” power in a national government strong enough to survive the jealousies of the wrangling states. Lazare soon gets to his real indictment. The framers, who “represented the American economic and social elite,” disliked democracy but were caught in a bind: How could they maintain order and authority while giving the people power to pursue the general interest of the United States? Their answer was to compromise. In the Preamble they gave an implied but sweeping mandate to “the People of the United States” to “form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, [and] promote the general Welfare”—and then they made it very hard to do those things quickly or without long arguments and more compromises.

But compromise is exactly what Lazare dislikes. He deplores the way in which the Constitution has defused disputes, “forced politicians to smooth them over, to seek common ground, to wheel and deal so that differences might be bridged.” Especially does he scorn the so-called great compromises—the waffling on slavery embodied in the rule that allowed a slave to be counted as three-fifths of a person in determining representation in the House and the creation of the Senate with equal votes for each state. These, he says, virtually guaranteed that only a breakdown in the constitutional system could permit the eradication of slavery. But granting the anachronistic unreasonableness of the Senate—there still is no reason for Delaware to have the same two votes as Pennsylvania, not to mention California—it was that or a small-state (and slave-state) walkout and no new government at all.

By ignoring the mundane realities that shackled the convention, Lazare loads the dice and then plays with them in contrasting the peaceable abolition of slavery in Great Britain with what happened here. British abolitionists got slavery outlawed in 1833, he says, thanks to the Reform Bill of 1832, which made it “impossible to say no to a movement . . . both massive and middle class.” This ignores the political weight of the American South under any system of representation, as against that of a handful of British colonial planters with no strong parliamentary base. It also overlooks the cultural strength of American racism; there was no “massive” or “middle class” movement to end slavery that was frustrated by the Constitution. Immediate abolitionism remained a minority view right up to 1861. What was gaining ground was the idea of “free soil”—namely, of restricting the institution’s future expansion. The South rejected even that distant prospect, seceding when it still had thirty sure votes in the Senate (from fifteen slaveholding states out of thirty-four) to block any abolition amendment and could have maintained the barrier until there were forty-five states. Slaveholders jumped the gun long before the genuine danger point was reached—which makes it even more certain that they would have broken up the Union even earlier in the face of an immediate threat of abolition. The Constitution simply embodied a sad political reality: Only naked power could abolish slavery while keeping the South on board.

But Lazare ignores reality when it doesn’t fit his case. Let me take another pair of examples. He holds that the 1830s were a period of “biting constitutional dictatorship ... in which Americans were prevented from acting nationally to institute internal improvements [or] create a pro-industrial economic policy.” It seems strange, therefore, that between 1830 and 1860 the nation expanded its rail network from 23 miles to 30,626 miles, increased the value of its exports from $72 million to $334 million, dredged rivers and harbors, mapped and surveyed the West, and produced enough manufactured goods to lay the foundation for what economic history rightly calls an industrial “takeoff.”

Lazare denounces the “long and tortuous” amending process, which “severely constrained” efforts to change the Constitution. But what are the facts? Once an amendment is submitted to the states, how long does it take to get the required three-fourths of them to ratify? Leave out the curious twenty-seventh (no pay raise for Congress to take effect until an election intervenes) that took from 1789 to 1992, and consider the Bill of Rights (two years and three months in an age of slow communications) as a single unit. The median time for the remaining sixteen is—can you guess?—one year.

Almost half the book is devoted to the post-1945 period, during which, Lazare insists, other democratic nations deftly modernized their political systems while we limped and tottered into our present decrepitude (apparently the flourishing fifties don’t count), dragging the anchor of the Constitution behind us. Wherein did we fail? Well, we got a Congress increasingly ineffective because of a fragmented committee structure (not prescribed by the Constitution) and Presidents who are not so much leaders as personalities created by image makers (and what has the Constitution to do with that?). Lazare blames the Iran-contra scandal and the easy escape of the principals in it on the Constitution’s vagueness about responsibilities and punishments. That’s like blaming the banking laws for embezzlement.

Our “unraveling social fabric”? It’s partly due to “an insane jumble of conflicting [local] jurisdictions” that trip up coordinated planning to tackle interlocking problems of race, crime, poverty, deindustrialization and deurbanization. But many, if not all, of those mini-satrapies—counties, townships, school or sewage or water districts, and the like—could be combined or eliminated by the states if they so chose. Eager to blame our failure to grapple effectively with our agonies on a presumed naive faith in our unimprovable Constitution, Lazare leaves unmentioned a few such small matters as the rise and fall of the party system (like judicial review, an interpolation not in the original Constitution); the influence of money and television in politics; the antiurban tradition generated in an agrarian past; the diverse nature of an immigrant-enriched populace; frontier individualism; the success record of free enterprise in a new and booming country.

These and many others, rather than simple-minded worship of constitutional principles, are important roots of our “paralysis.” Lazare has it backward. Culture drives politics, not the reverse. He cites Newt Gingrich to the effect that America is a “deeply conservative country,” and laments that it is true “because the Ancient Constitution is a deeply conservative concept.” On the contrary, we are a peculiar people, loving the new and the young, but idealizing the past, which we constantly flee. It’s how we are, not how the Founding Fathers made us. And what the record shows is that, when the will is really there, we will change the system, while swearing that we are really preserving it, as we have long done.

Only by misreading that record can Lazare’s argument be sustained. I am not a constitutional fundamentalist. There are many provisions that I would willingly change. But neither do I subscribe to Lazare’s unrestrained majoritarianism, his dire warning that, unless we dump present limits on the freedom of the majority to secure instant political gratification, “politics will atrophy, society will die, and civil liberties will go with it.” There are good cases for a new kind of politics, but good cases are not served by bad history.