Should We Revise the Constitution?

I got into a bit of a testy discussion on Facebook a few days ago that I think is worth writing a little about.

In response to a comment made by my friend and fellow local blogger Buggie on her Facebook page, I suggested that it might be time to consider revising the Constitution, although I acknowledged it was unlikely ever to happen because of the huge differences of opinion between the left and the right.

Another reader responded to my comment this way:

“We already have a legal process to amend the Constitution, Bilbo. There's absolutely zero reason to modify (or in any other way desecrate) the original. Amend it or abide by it... those are your options. I'm actually afraid to ask how you would like to ‘revise’ it...”

I had a bit of trouble with his use of the word desecrate, but I replied thusly:

“… (y)ou are correct in that there is a legal process in place for Constitutional amendments. We've used it 27 times so far. But the result of more than 200 years of litigation, interpretation (by the courts and by people who are absolutely sure that THEY and they alone knew what the Founders meant), the passage of time, and the evolution of technology and social ideas have led to an increasing disconnect between what the Constitution (says) and its applicability. As a guide for the structure and function of government, it is without equal in the world. As a guide for the drafting of laws applicable to the 21st century, perhaps not so much. I do have some ideas as to how it ought to be revised or amended, which I will post in my blog in the next few weeks. Until then, just think about it dispassionately.”

This was the individual’s reply:

“Again, revision is simply not an option. If there is a problem with its interpretation -- from ones personal perspective, of course -- the amendment process is still perfectly suited for any century. I've sworn to defend the Constitution for over 20 years, so there is little chance that men and women like me will ever allow anyone to "revise" it, or that we'll ever think about it dispassionately.”

I think I have a problem with the phrase revision is simply not an option. My interlocutor said he’d “sworn to defend the Constitution for over 20 years.” As it happens, so did I (for 23 years), as an officer in the Air Force. Let's take a minute to review the oath he and I both took and note what it actually says:

“I (insert your name here), having been appointed an officer in (insert branch of service here) do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic …”

The oath does not say, “the Constitution of the United States as written in 1787,” or “the Constitution of the United States as amended” … it says, “the Constitution of the United States.” The important thing is that we swear the oath to the founding ideals of the country, rather than to a president, a political party, or some tightly-wound religious leader.

I don’t think a calm, clear-eyed look at the case for amending, revising, or completely rewriting the Constitution constitutes desecration of the original. Indeed, the Founders recognized that their document would need to be amended periodically as conditions changed, and they provided a vehicle by which it could be amended (Article V). They were idealists, but they were realists as well, and I don’t believe they would have objected to revising the document if circumstances warranted.

What would I change? Well, nothing about the basic structure of the government … the concept of three branches maintaining checks on each other’s powers is sound and worth keeping unchanged. But there are some things I believe definitely need changing. Here are just three to start the discussion:

First, I’d eliminate the electoral college and go with direct election of the President by popular vote. None of the arguments for the electoral college system, in my opinion, hold water any more (if, in fact, they ever did). All it does is marginalize the voters in the small states.

Second, I’d specify that Congressional districts align with existing political boundaries: counties/parishes and, where necessary, lower-level municipal borders (townships/boroughs, towns, etc). This would help eliminate the stupidity of districts which are ridiculously gerrymandered to protect the primacy of a single party, rather than the interests of the electorate as a whole.

Third, in Article I, Section 8, I'd revise the government’s responsibility “to establish Post Offices and Post Roads” to include the responsibility for the facilitation and regulation of electronic communication (something that we can all agree has changed radically since 1787). And speaking of electronic communication, how ought we to clarify the government's responsibilities and limitations on "unreasonable searches and seizures?" ... I don't think anyone in 1787 saw the NSA coming, or GPS tracking, or imaging from satellites.

I'm not touching the Second Amendment, because there's no point in trying to have a rational discussion about it. To many people, the Constitution consists of the Second Amendment and a bunch of other stuff.

I don't think there's anything horrible about considering revising the Constitution to keep up with the times. The amendment process outlined in Article V allows for tweaking the document as needed, but I think we at least need to have a rational discussion about whether or not larger changes are needed. The chances of fully rewriting the Constitution are probably less than zero, but it's the discussion that's important.

What do you think? Leave a comment. But avoid words like desecrate, please.

Have a good, Constitutional day. Come back tomorrow for some thoughts about Christmas.

Bilbo

P.S. - As long as we're talking about the Constitution, did you know that Article I, Section 8, gives the legislative branch the responsibility “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” My word, it sounds as if the Founders, seen by many on the right as the infallible font of all political wisdom and defenders of unrestricted freedom, are saying that the government can send those jackbooted thugs everyone worries about against lawbreakers and insurrectionists … who would have thought?