America’s Constitution is Flawed and Outdated…But Don’t Try to Get a New One

As the presidential election nears, attention has once again focused not so much on the number of votes each candidate might receive, but rather on where those votes will be cast, and, most significantly, how few of them will actually matter.  For the vast majority of Americans, the coming contest has been reduced to political theater.  In addition, if the candidate who receives the most votes nationally is a victim of skewed distribution, as has become distressingly frequent, the majority of the electorate will have no voice at all.

In other words, it is that barrel-of-fun Electoral College time again.

When the absurdity of using the Electoral College as a means to select a head of state in a nation that purports to be a democracy is discussed, it often leads to renewed debate as to the viability of the Constitution itself and whether Americans are well served by a founding document written almost two and a half centuries ago.

With its flaws on increasing display, that debate has become more intense.  Much like an only child of parents in a divorce proceeding, the Constitution has been clutched at by both sides of the ideological divide, each insisting that their claim is the more legitimate and the other’s distorts reality.  The Right is certain that the Constitution protects “religious liberty,” “individual freedom,” and the ability to own any variety of weaponry, while the Left asserts that the document protects the right of women to have an abortion and ensures that all Americans be allowed to vote to attain the Framers’ goal of majority rule.

Both are wrong.

The main issue is that neither the Left nor the Right understand what the delegates to the Constitutional Convention were trying to achieve in the summer of 1787 and the compromises and realpolitik necessary to leave Philadelphia with any product at all.  The primary misconception is that the Framers were there to ensure “liberty,” be it personal, political, or religious.  Americans already had liberty under the Articles of Confederation—a good deal more liberty, in fact, than they would be granted under a new Constitution.  Citizens of each state in this “compact of friendship” had almost total control over their own destiny, including defining a judiciary, legislature, executive, and constabulary, as well as establishing a monetary system, rules for voting eligibility, and bills of rights.  Participation in the central government was just short of voluntary.

What the nation under the Articles lacked was an effective means of common defense, the ability to raise money, and the consistency of laws necessary to promote trade and commerce.  In order to acquire these and create a functional nation, Americans needed to be willing to sacrifice individual liberty rather than gain it.  The key question was how much and in what areas.

There were facets of “liberty” that could not be threatened—slavery in the South and the free flow of commerce in the North—and the delegates spent four contentious months trying to devise a plan for an effective central government that could also protect those interests.  There were intense debates over what powers would be granted to a national legislature, and even fiercer disagreement on the executive, where it took almost forty votes to settle on a single president who would serve for four years. 

Small states feared a strong central government would ride roughshod over the rights they enjoyed under the Articles, so their interests were protected with a two-senator plan and, yes, the Electoral College, which had been rejected earlier and, as James Madison reported, only gained acceptance in early September when the delegates were exhausted and wanted to go home.  Voting eligibility was not addressed, left for the states to decide as they pleased.  Potential deal-breakers were avoided.  In addition to dancing past the slavery question, aware of widespread objections to a federal judiciary, the delegates kept Article III short and vague, failing even to mandate the number of justices that would sit on the Supreme Court.

In the end, the delegates achieved what they had most sought—a national government far stronger than had existed under the Articles, a tentative means for national defense, and some consistency in the manner in which states could conduct their affairs.  But the price was high.  Slavery was protected, functionality was limited, and minority rule assured.  It is no wonder then that the Constitution is inadequate to meet current challenges—it was inadequate to meet the challenges of 1787, which explains why seventy-five years later a Civil War became necessary to resolve some, but hardly all, of the fundamental issues.

Given its shortcomings, it has been proposed that Americans attempt to redraft a more effective document, one in which areas of contention would be specifically addressed.  For example, does the right to vote guarantee that the ability to vote be made equal for all citizens; does the right to bear arms exist without regard to the requirement that a militia be present; does the protection against illegal search and seizure protect a woman’s right to abort an unwanted fetus; do religious beliefs allow some citizens to deny others services or legal protections?  These and other issues are addressed either obliquely or not at all in our current Constitution, and the United States has been torn asunder as a result.

The problem is that the very contentiousness that has wrenched American society apart would become the focus of any new constitutional convention.  In addition, how delegates would be selected for such a convention and whether states would be represented based on population or as separate entities and how many votes each would be granted to decide on specifics might scuttle any plan for a new Constitution before it got off the ground.

Even assuming some formula for empaneling a convention could be found, how could a nation that has lived under minority rule for virtually all of its existence expect that ruling minority to voluntarily cede power?  It is far more likely that any new plan would be far less effective at establishing majority rule than the system we are living under today.

In the end, the very flaws that make the Constitution unworkable would render any attempt to update it unworkable as well.  And so, if a new Constitution is not a reasonable option, Americans will need to find a means to work within the existing document to solve the very deep problems that currently plague the nation.

Many of the flaws can be corrected by legislation.  Congress can enact national voting standards, a rule that a state’s electoral votes be given to the winner of the national popular vote, a variety of gun safety laws, the right of a woman to make her own health care decisions, rules governing the drawing of districts in national elections, limiting the reach of the Supreme Court, among others. 

All of these fixes, however, are dependent on the national will and the election of members of Congress committed to instituting these reforms.  And that, in turn, demands the commitment of an aroused citizenry, which, in theory although not always in practice, is the cornerstone of a successful democracy.