To honor our Framers, we should consider Thomas Jefferson’s statement that “The earth always belongs to the living generation, and not to the dead.” (More)

“No society can make a perpetual constitution”

As schoolchildren we were taught to revere the U.S. Constitution yet the National Journal’s Alex Seitz-Wald quotes Thomas Jefferson’s 1789 letter to James Madison on why each generation should govern itself:

No society can make a perpetual constitution. The earth belongs always to the living generation and not to the dead. […] Every constitution, then, and every law, naturally expires at the end of 19 years.

Yes, Jefferson overstated his case. Having a constitutional convention every twenty years would bring a new meaning to “lame duck,” as Congress would have little reason to begin any project that could not be completed before the next convention. Still, as Seitz-Wald wrotes, our Constitution:

simply isn’t cut out for 21st-century governance. It’s full of holes, only some of which have been patched; it guarantees gridlock; and it’s virtually impossible to change. “It gets close to a failing grade in terms of 21st-century notions on democratic theory,” says University of Texas law professor Sanford Levinson, part of the growing cadre of legal scholars who say the time has come for a new constitutional convention.

“I would not look to the U.S. Constitution”

We like to think we have the best constitution in the world, but very few nations have chosen to copy it and few who did found successful government. Indeed when U.S. Supreme Court Justice Ruth Bader Ginsburg traveled to Egypt last year, she cautioned them against trying to copy our model:

I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. […] It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution.

Conservatives were of course outraged, but Seitz-Wald writes that Justice Ginsburg was hardly alone in that criticism:

Almost nobody uses the U.S. Constitution as a model – not even Americans. When 24 military officers and civilians were given a single week to craft a constitution for occupied Japan in 1946, they turned to England. The Westminster-style parliament they installed in Tokyo, like its British forebear, has two houses. But unlike Congress, one is clearly more powerful than the other and can override the less powerful one during an impasse.

The story was largely the same in defeated Nazi Germany, and more recently in Iraq and Afghanistan, which all emerged from American occupation with constitutions that look little like the one Madison and the other framers wrote. They have the same democratic values, sure, but different ways of realizing them. According to researchers who analyzed all 729 constitutions adopted between 1946 and 2006, the U.S. Constitution is rarely used as a model. What’s more, “the American example is being rejected to an even greater extent by America’s allies than by the global community at large,” write David Law of Washington University and Mila Versteeg of the University of Virginia.

“Non-Tea Party Republicans would like to see a compromise”

The problem is that our system requires compromise for our government to function. While that’s a good ideal, as we saw last month it also leaves us vulnerable to a minority faction who refuse to yield on their demands. Consider last month’s Pew Research poll on the looming government shutdown:

However, there is a substantial divide in the Republican base over how far to go to achieve the goal of defunding the 2010 health care law. By 54% to 38%, non-Tea Party Republicans would like to see a compromise on the budget, even it is one they do not particularly agree with. Most Tea Party Republicans (71%) want lawmakers who share their views to stand by their principles, even it that leads to a government shutdown.

And as this comment to Seitz-Wald’s article illustrates, that captures the ideological dispute over our Constitution and whether to amend it. On the one hand are those like the commenter who believe government should do nothing at all unless they agree. On the other hand are those who accept that government should be able to function, even when that includes policies they don’t like.

“Elections have consequences”

According to conservative Marc Thiessen, “the roots of Obama’s demise” go back to January 2009, when he met with House Republicans after his first inauguration:

House Republican Whip Eric Cantor gave President Obama a list of modest proposals for the [stimulus] bill. Obama said he would consider the GOP ideas, but told the assembled Republicans that “elections have consequences” and “I won.” Backed by the largest congressional majorities in decades, the president was not terribly interested in giving ground to his vanquished adversaries.

In fact a third of the American Reinvestment and Recovery Act consisted of tax cuts or tax credits demanded by Republicans. Yet Thiessen goes on to claim President Obama ignored Republicans, who proposed a stimulus bill only half what Democrats wanted, and Democrats asked for only half what many economists recommended.

Thiessen simply presumes that a still smaller Republican plan would have worked better. But more than that, he presumes that Republicans should get policies they want, and only policies they want, regardless of elections, an argument Jay Fleitman made more explicit:

Reid and Pelosi pushed forward anyway. Democratic membership in Congress was itself uncertain of the content and ramifications of this 1,200-page bill, which led to Pelosi’s famous statement of “Alice in Wonderland” logic that Congress had to “pass this bill in order to know what’s in it.” With not a single Republican vote in either the House or the Senate, the Democratic leadership bypassed usual procedures in the Senate to cram through to passage this bill of profound national implications.
We often hear as an argument against continued Republican resistance to Obamacare that this should now be accepted as the “law of the land.” There is no reason why Republicans as the opposition party should ever accept the legitimacy of this bill or render to it any respect.

In other words, regardless of elections, no law is law unless Republicans agree. Even Sen. John McCain, whom President Obama defeated in 2008, rejects that idea.

Of course, House Republicans claim that they, too, won their elections and have an equal mandate to govern, and Tea Party Republicans demand that House Republicans govern without compromise.

And therein is a huge flaw in our Constitution. Our Framers did not imagine that a minority in one party, in one chamber of Congress, would demand to dictate policy regardless of any other elections. But our Constitution allows such gridlock, and the extra-constitutional filibuster makes it even easier for an electoral minority to bring our government to a halt.

Not every government has that flaw, and that flaw is why so few nations copy our Constitution. It might well have been the best compromise our Framers could craft in 1789, but it’s now almost 225 years later. A new Constitutional Convention could draw on our own and others’ experience and produce a system of government that is far more robust – not in terms of the policies by which we govern ourselves, but whether we can reliably govern ourselves at all.


Happy Saturday!