Why We Have a Constitutional Crisis

To understand the Constitution, it is necessary to first dispel a common misconception.  Almost all Americans, whether conservative, libertarian, or liberal, believe the United States Constitution was written to increase individual liberty.

They are wrong. 

The delegates to the Constitutional Convention did not come to Philadelphia in 1787 to ensure liberty—Americans already had liberty under the Articles of Confederation, a good deal more than they ever would be granted under a new Constitution.  Each state in this “compact of friendship” had almost total control over its affairs, with its own constitution, legal system, trade regulations, monetary system, voting and naturalization rules, and all the other trappings of an independent nation.  States guarded these institutions jealously.  Participation in the central government was just short of voluntary.

What the nation lacked under the Articles was an effective means of common defense, the ability to raise money, and the consistency of laws necessary to promote trade and commerce, the absence of which had left the United States on the verge of collapse.  To create a functional nation, Americans needed to be willing to sacrifice liberty.  The key question was how much and in what areas.

The delegates faced a daunting task.  Under the Articles, the government consisted of only one branch, the legislative, with only a single house of Congress.  Voting was by state.  To get almost anything done, nine votes were required, and any alteration or amendment to the Articles demanded unanimous assent.  The United States had no executive branch and no national judiciary and if the government were to be strengthened, almost everyone agreed that both would be required.  Deciding how to establish each of these new departments and what powers to give them, however, was a thornier matter. 

Finding a workable structure for government was far from the only problem facing the delegates.  There were vast disagreements on any number of critical issues, including but not limited to the future of slavery and the slave trade.  How would the nation raise money?  Could it afford or did it even want a standing army?  Who should be able to vote and for what offices?  How would citizenship be determined?  Did the rights of citizens and even states need to be delineated? 

Given the breadth and magnitude of the disagreements, to avoid creating a document that was so provocative that states would never agree to adopt it, the delegates chose to leave many key elements of governance vague and omitted some altogether.  These were not inadvertent oversights but, rather, a conscious strategy, the product of pragmatic compromises fashioned to render the new Constitution as inoffensive as possible to powerful interest groups whose demands could not be fully met.  In addition, to make the new plan more likely to succeed, the delegates required only nine states to ratify it, rather than the unanimity that the Articles required.  Unclear was what would happen to the holdouts if only nine states agreed, especially if either Virginia or New York, where resistance was deep, refused to join the new Union. 

When viewed in this light, the process of creating the Constitution looks a good deal different than most traditional scholarship postulates and certain key issues become easier to understand.  These include:

Why we got stuck with the Electoral College.  (Hint: It was not because of slavery.)

Why we ended up with a 2^nd Amendment.  (Hint: We should not have needed it.)

Why we are vulnerable to gerrymandering.  (Patrick Henry was the first to use it…against James Madison.)

Why there are no national standards for voting eligibility. 

Why Vladimir Putin is constitutionally eligible to be Chief Justice of the Supreme Court.  (Let us hope Trump does not nominate him.)

Why the Supreme Court was allowed to rule in Citizens United. (Hint: It should not have been.)

Why the census is taken every ten years without a strict set of rules on who should be counted.  (Hint: This was because of slavery.)

Why there is no delineation of citizenship requirements, or even an indication of who would be a citizen after the Constitution was ratified. 

Why the Constitution has become nearly impossible to amend.

The failure to deal with these issues when the Constitution was being written made both the document and the government it attempted to create more fragile, and that fragility is now being exploited by those who would bypass constitutional guarantees and has rendered the very survival of American democracy uncertain.

So…why am I telling you all this?

Because there is book coming out on February 24 that explains how and why these flaws came to be.  It’s called Imperfect Union: How Errors of Omission Threaten Constitutional Democracy, which eminent Constitutional Law professor Sanford Levinson extolled as “timely, important, and truly necessary and should be read by anyone concerned about the present state of American politics. It deserves the attention of, and discussion by, the widest possible audience because he writes in clear and lucid prose accessible to everyone.  It is high praise to say that one does not have to be lawyer to grasp his arguments. All it takes is sufficient interest and concern about the future of our country.”

Pretty nice, huh? And yes, for those of you who haven’t yet guessed, the author is…me.

A final note:  Those of you who read these posts are (I hope) aware that I do not write for academics, but rather for general readers who want to gain a deeper understanding of key questions of politics and law. 

To that point, Pulitzer Prize winner Judith Miller wrote, “A superb job. Powerfully written and totally accessible, Imperfect Union gives unique insight into how today’s Constitutional crisis stems from the Framers’ unwillingness to confront issues that they knew to be threats to democratic ideals.” 

If you are intrigued and, hey, how could you not be…Imperfect Union is available for pre-order on Amazon and other online booksellers.