The notion that are Constitution is out of date and holding us back as a nation has grown very common as of late. I had already encountered it several times in online discussions before a friend showed me this NY Times article. I have mulled it over for some time and concluded that, not matter how fringe such arguments may be, they must be addressed for the benefit of our nation.
As I begin this discussion, let me give you a word of warning. Any argument, such as the above linked NY Times piece, that attacks the Constitution because of what it won’t let us do is anti-liberty. This will be the principle line of discussion in this post. However, there are a small minority of left over Antifederalists who have trouble with the Constitution because it does not do enough to protect American liberty. Be sure to discern which party you are addressing, the one is advocating for tyranny; but the other just disagrees about how best liberty ought to be protected. It is always unwise to confuse a potential ally with an enemy.
The root problem with attacks against the Constitution stems from recent confusion about types of government. For whatever reason, many Americans today believe that we have a democratic government and that democracy is the best form of government. Both of these suppositions are false. Once you simplify all of the terminology and modes of action, there are in fact only two types of government. The first type encompasses all governments where a man or group of men is the supreme law of the land. This can include dictatorships, oligarchies, monarchies, democracies, parliamentary governments, or republics. The second type of government has a set of laws for its supreme rule, laws that cannot be overturned even by the heads of government. Most any form of government can be set up this way, the most common having been Republics like the United States or Rome, Democracies like the Greek city states, and more rarely monarchies like England under the Magna Carta. In the end though, any form of government ultimately fits under one of these two categories, now lets examine the repercussions of each.
The age old argument for governments with a man or body of men at the ultimate head is that they are more progressive. It is easier to take any course of action without legal impediment and thus decision makers are not restrained from making “good decisions” by “archaic laws”. The fatal flaw with this line of thinking is that it fails to acknowledge man’s sinful condition. When placed in a position of unhindered power any person or group of persons will ultimately serve their own interests at the expense of everyone else in society. Thus in monarchies kings frequently oppress their subjects, in democracies the majority oppress the minority, oligarchs disenfranchise the rest of the people, and so forth. While it is not immediately apparent, the inevitable tendency over time in these governments is towards tyranny.
This brings us to our second option, rule by law. Governments set up under a code of law, or constitution, make several general assumptions: all people have certain Divine or Natural Rights which must be protected by the community, all governments are set up by the consent of the governed, and since men inevitably tend to oppress one another certain legal protections must be set up to protect the weak from the strong, including the strong in government. Now I will pause here to note that despite these good foundations, government by legal statue can still be oppressive if it refuses to acknowledge that certain subsets of society, such as women, minorities, unborn children, etc; have legal rights. Over all, however, this form of government tends to protect and serve the cause of liberty better because the rights of free people are enumerated and given legal protection.
For the studious reader, it should be clear which form of government best serves to protect liberty and the rights of a free people. The US Constitution was written along this line of thought, with the aim of protecting the Divine Rights of all Americans. Any form of disobedience to it, as the supreme law of the land, ultimately erodes the legal protections that make constitutional government so appealing. A slow slide towards government without law is no better than an immediate replacement.
That doesn’t mean, however, that our discussion has come to a close just yet. A second choice is left open to those who favor the replacing our Constitution in the option of calling for a convention and drafting a new one. Unfortunately such a notion is fatally flawed. Americans spend a great deal of their time complaining about the nefarious influence of special interest groups and lobbyists in our political system today. Try to imagine the efforts such groups would make if a whole new form of government were to suddenly begin taking shape. No entity in the entire nation with any significant amount of capital would allow itself to be left out of such a discussion. In the end the new government would be nothing more than a cobbled together mixture of corporate wish lists. In addition to this, we lack the talent pool necessary to accomplish this task. Today’s political class has proved itself to be self-serving and untrustworthy to the average American citizen. To remedy this we could, I suppose bar the participation of any current politician in the discussion. Who then would we send? Lawyers? No one trusts the legal profession anymore, and with good reason. Our legal system is full of examples of the greed of much of that profession. Professors? Men with heads full of knowledge but little practical experience with it. Some other group of Americans? Most Americans don’t understand the system we have, much less the requirements for creating a new one from scratch. No my friends, it is unlikely that any attempt at drafting a new constitution would be met by anything but catastrophic consequences.
We are left then with but one choice, we can go back the way we came. The drafting of our Constitution represents a unique moment. A moment when a group of men with the knowledge and experience necessary to craft a new government, chose to craft one that would ultimately protect the rights of individuals. It may not be a perfect document, and we as a nation have the privilege of making judicious changes when they are absolutely necessary; but there has not yet been crafted a better document for the governance of a free state.
The real solution to the mess we have gotten ourselves into today, is not to replace the greatest protection of liberty we have. It is for the people to reassert their rights and demand a government that obeys the legal precepts we have chosen to be governed under. It is time to get involved in the discussion, and to begin teaching Constitutional law to our friends, neighbors, children, and any one else who will listen. Don’t let any one accept for one moment the lie that our system has out lived its usefulness.