Jeff Berger, Charles Cottle, Dave Gillespie, John Kozlowicz, and Ron Berger —

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During the past year contributors to Wise Guys engaged in an impromptu discussion of the limitations of U.S. Constitution. Simultaneously, the political atmosphere across the country stimulated a number of calls for a constitutional convention. The possibility of such an event inched closer to reality in the second week of June 2017 when the Wisconsin Assembly approved the measure. If Wisconsin completes the approval process, only the approval of four more states will be necessary to make the convention a reality.

Jeff

I am ambivalent about the U.S. Constitution (USC) because it is an archaic document with an incredible number of flaws. And yet, to throw away the USC and start over would cause more suffering.

Charles

I don’t think there is anything wrong about expressing ambivalence about the USC. People have been doing that for some time. I would be interested in knowing where the flaws are that Jeff finds. It is true that the framers did not anticipate some contemporary issues that have confronted the document. For example, civil rights was not really on the radar screen in a meaningful way. Also, contemporary technology has created problems, especially in the area of rights to privacy—a topic the USC does not really address. If we look at the context in which the USC was written, however, it remains a relevant document.

In 1776 there were two great documents produced. The first was the Declaration of Independence written by Thomas Jefferson and colleagues. The other was the classic of economic theory, The Wealth of Nations by Adam Smith. The American Revolution was a classically liberal revolution for free markets and decentralized government. It was in opposition to Britain’s mercantile system of centralized control of markets under the monarchy. By the time of the 1787 Constitutional Convention in Philadelphia, these views had not changed. In addition to the faith in markets, it is important to note that the tenor of the convention was largely undemocratic. Consequently, the resulting documents contain numerous undemocratic features. Paradoxically, perhaps, the authors believed that while the people at large were the source of authority for the nation, the unbridled will of the people could not be trusted. So, the USC was structured to require a strong consensus of authority before legislation might take effect. This was not viewed as a bad thing, however. Rather, when the government does nothing, it was believed that the benefits of the free market would continue to operate, distributing goods and services to the nation in a completely adequate manner. After all, the unfettered operation of the free market would produce, in Adam Smith’s words, the “best of all possible worlds.” Whenever the government stalls due to structural issues, we can thank the founding fathers.

The relevance of all this is that the Tea Party claims to want a return to a market based allocation of goods and services for the nation. This sounds innocuous enough, but truly free markets care little about communities, the protection of children, the welfare of the poor, and so forth. To trust in markets completely is to put social policy at the mercy of commercial profits. Note that while I think many adherents to Tea Party philosophy truly believe in the efficacy of markets, I do not believe that those who fund the movement have any commitment to them except when they serve their own interests.

Thus the government paralysis we have experienced under the Obama administration fits the design of the USC. Its structure is so undemocratic that the “will of the people” often has little chance to prevail. At present, I am sure there are many who think this state of affairs is just fine. But those who disagree are calling for term limits as a remedy to fix the stalled government. This approach seems to me to be an admission that democracy itself is a failure, because the term of any legislator can be limited at any regularly schedule election simply by voting the representative out of office. How replacing one legislator with another by force at the end of a set number of terms will repair the underlying problem escapes me. This is especially true now that we have such highly gerrymandered districts so that the successive representatives would look the same.

A more democratic solution might be to abandon the single member district system of representation, and move instead to a system of proportional representation. The system of representation is not a constitutional issue, and how we might arrive at such a revision is beyond me. It is most unlikely that the beneficiaries of the current system would vote for it, even though it is more democratic than the system of representation we now have. Perhaps a constitutional convention calling for a parliamentary system would be a way out of our present conundrum.

Jeff

I have to confess that I’ve never read Adam Smith or really thought that the American Revolution was about anything other than taxation without representation. I certainly didn’t think it was about markets. I won’t disagree with that, except to say that the northerners and southerners didn’t agree on much, especially when it came to money. I think your comments may be overly influenced by the northerners. The southerners believed that land ownership was the determinant of wealth. They detested most of the notions that northerners had about economic matters. I think southerners would have been happy if only land owners were allowed to vote. Of course, democracy is a flawed system of government, but I can’t think of anything that is necessarily better, including a parliamentary system.

That said, here are some of my pet peeves about the USC, starting with the electoral system. The founding fathers never envisioned political parties. They expected state legislatures would choose delegates to the Electoral College, but left it to the states to decide how to choose their legislators. They created a system where the people of Wyoming have more proportional representation than the people of California—which perhaps makes some sense when it comes to protecting the environment, but it makes no sense for most issues.

In any case, I would be okay with the electoral system if we could make just one small change, which is to have preferential voting as they have in Australia. People say that preferential voting is too complicated, but I think it is so important for democracy that we need our leaders and media to do everything they can to educate the people on this issue. If each voter could choose their first and second preferences, then in 2000 I could have chosen Ralph Nader as my first choice (which I did) and Al Gore as my second choice (which I couldn’t do), and I wouldn’t have had to regret the way I voted (as a California voter, not that it mattered). I truly believe that by doing so third parties would have a much greater influence on the two major parties because everyone would get a better sense of what the people wanted—as opposed to everyone having to vote for the lesser of two evils in every election.

Putting the electoral system aside, the biggest thorn in my side is the Second Amendment. It is so ambiguous that no two people agree on what it says. I’m not blaming the founding fathers for not being more explicit. I’m only saying that we desperately need to rewrite that amendment, if only Americans could agree on what to it should say, which will never happen—which leads me to my next thought.

I often joke that the best thing that could happen to the U.S. is for Canada to invade it. I look at France, which is on their fifth Republic. Each time they established a new Republic they wrote a brand new constitution. The last three of those Republics were created because France was invaded and the government was overthrown; and each time they created a new constitution, they wrote a version that fit the new era. Germany and Japan are even more fortunate than France because they were so utterly ashamed of themselves in 1945 that they became two of the most peaceful countries in the world. Humility goes a long way.

Getting back to the USC, it boggles my mind that it says nothing whatsoever about banking. The U.S. wouldn’t exist today if not for Alexander Hamilton, and for the fact that George Washington ignored Jefferson’s advice and listened so much to Hamilton. It boggles my mind that as president, Jefferson abolished the Bank of the United States, and then Andrew Jackson did it again (after Madison restored it), only to leave the country financially dependent on the likes of John Pierpont Morgan. The U.S. was fortunate that Morgan was as smart and as benevolent as he was, and the country learned just in the nick of time (before Morgan died) that it needed something like the Federal Reserve System—a system that has been evolving ever since its creation. This system is fundamental to the health of the economy, and yet the USC says nothing about it. Perhaps that is for the best, because it really does need to evolve. I actually read a book recently where the author argued that the Federal Reserve was unconstitutional. We can only be thankful that nobody is listening to that guy. The original constitution didn’t even provide for a federal income tax, but with the help of Williams Jennings Bryan, we got the 16th amendment. Nevertheless, we have way too many people in this country acting as if the Internal Revenue Service is unconstitutional. I have never understood their arguments.

John

Jeff and Charles have made various interesting points about the USC. Both have suggested changes they think would improve the system of government in this country.

As we know, the USC is well over 200 years old. It has undergone very few formal changes—only 27 amendments. Even this number does not tell the full story as the first 10 amendments, the Bill of Rights, came almost immediately in our country’s history, of which the Second Amendment is a good example. Some of our rights have greatly evolved over the years. Today we talk about freedom of expression and social media even though the founders would have had no idea what social media would become. Thus, in nearly 250 years we have only had 17 constitutional amendments. None of the amendments provided structural change to the government of the U.S.

A couple amendments have changed the electoral process by calling for the direct election of Senators and modifying the electoral process related to the president. Herein, we also have our only adoption of term limits where the president is limited to two full terms of office. Given some of our recent presidents since the adoption of these term limits, it is hard to imagine surviving more than two terms of any of them. Several of the amendments are important for expanding the electorate and expanding constitutional rights to groups that have been systematically excluded from our electoral and political processes. Race and gender are evident here. Two of the 17 amendments should not even be constitutional amendments as they really deal with relatively unimportant issues of public policy, that is, the establishment and the subsequent repeal of Prohibition.

The structure and operation of our government and version of democracy have been relatively untouched by changes in the USC. This is because it is so difficult to change it. To change the USC requires agreement both at the national level and with three-quarters of the states. I do not see it likely that we would change the Electoral College, the role of Congress, the president, or the Supreme Court by constitutional amendment. I also see no way we are likely to adopt innovative procedures as preferential voting or term limits.

Despite saying all of the above, it is clear to me that the government of today is far different than the government in the early days of our country. The USC remains a constant. It has not changed much nor do I expect it to change much in the future. What changes we have had or what changes we can expect have resulted from a few things:

1) Supreme Court decisions, such as the 2010 Citizens United decision, have directly impacted the role of business and big money in the election process. In an earlier era court decisions affected things like racial discrimination and literacy tests in voting. New Deal era decisions expanded greatly how Congress, the president, and regulatory agencies gain new regulatory powers in the U.S. economy. In the late 1800s court decisions granted railroads and businesses great freedom to act as they wished without government interference.

2) Practice and precedents also affected changes in government. Congress has greatly expanded the power of itself and the president through appropriate legislation.

3) War and international affairs have also affected what the president can do. Lend lease, Lincoln’s Emancipation Proclamation, the placing of Japanese-Americans in relocation centers (camps), and numerous involvements in international military excursions are further examples.

My conclusion is that changes that may occur are most likely to be incremental. The structure and process of government are likely to remain as we have known them in past. We are not a nation that likes to make changes; however, we are a nation that has undergone a great deal of change over the years, often without formal action. We have found and we will continue to find ways to operate under the USC as it was written centuries ago

Dave

I appreciate many of the above comments about the USC. Contrary to a lot of flag-waving mythology, virtually no nation on earth sets out to copy the American model when undertaking constitution-writing. Democratic constitutions today generally embrace parliamentary structure and proportional representation elections. Much of the “good stuff” in the USC lies in the Bill of Rights (minus the Second Amendment and the now unneeded Third, and in some of the subsequent 17 amendments (or subsequent 15 if we overlook Prohibition). I agree that preferential or instant runoff voting would be a vast improvement; I too would have voted for Nader and Gore in 2000 if that had been a possibility.

Gerrymandering is one of the greatest scourges in our system. So is the Citizens United decision. But I do applaud so much that the U.S. Supreme Court has done to bend the moral ark toward justice in our history (who would have thought that marriage equality would have gone so far, so fast?). In addition to the structural and procedural criticisms others have written above, I must add the duopolistic barriers to electoral challengers that the two major parties have together erected for their mutual self-protection and dominance. Admittedly, the single member district plurality (first past the post) system is the number one problem and its origins predate Democrats and Republicans. Likewise, the Electoral College. But there are also those incredibly burdensome ballot access laws erected state by state, rigged rules by the bipartisan Commission on Presidential Debates, anti-fusion and sore loser laws, and the near-total neglect of third-party and independent challengers by mass media, even in this era when the 24-7 news cycle needs and certainly could use “filler.”

Jeff

One of the reasons that I am ambivalent about the USC is because of the way that libertarians use it. I actually agree with libertarians on many issues, but I don’t agree with the way they try to use the USC to justify their opinions. Libertarians are cousins of 19th century anarchists, who hated all things associated with the establishment, including corporations.

I would prefer the USC to determine the structure of the electoral system and to spell out some rights that would protect minorities from the majority and from the government, but perhaps we should not expect it to do more than that. Charles mentioned the Declaration of Independence—that and the Preamble to the USC help define the spirit of the nation, but they are antiquated. I would rather have the spirit of the nation be more in tune with that of Native Americans who viewed mankind as custodians of the planet—something that would help to identify that one of the purposes of the government is to protect the environment.

Ron

The only thing I’d like to add to this discussion relates to the idea of calling for a new constitutional convention. This is because I think an actual convention could potentially yield more negative outcomes from ideas emanating from the political right than from the political left. Currently, we are just five states shy of the two-thirds threshold for calling such a convention; and this effort is coming from the American Legislative Exchange Council and Tea Party activists who want to pass an amendment requiring the federal government to pass a balanced budget and more generally curtail the power and jurisdiction of the federal government.

Relatedly, I sometimes fear that United to Amend activists on the left who have called for a constitutional amendment to end the illusion that corporations are persons and money is speech fail to realize the Pandora’s box that could be opened if movements for constitutional change gain momentum. I have similar concerns about the idea that the U.S. would be better off with a parliamentary system that allows more representation from multiple political parties. While I sympathize with this view, it is this type of system that allows for fascist and other far-right parties to come to power with only a minority of representatives if they can build a broad alliance with mainstream conservatives. The recent capitulation to Donald Trump by mainstream Republican notables is an indication of the potential for conservatives to capitulate to a movement even worse than Trump, if they saw that as necessary for their quest for power.

Dave

To a large extent Ron’s angst about a national constitutional convention available for proposing constitutional change as an alternative to proposals coming from a two-thirds vote of the House and Senate. But that has never been used since the 1787 Philadelphia Convention delegates violated their state mandates, in effect ripping up the Articles of Confederation, writing a brand-new federal document, and submitting it to the states with passage mandating only 9 of the 13 states (amendments to the Articles under the process provision in the Articles themselves required unanimous approval by all 13 states). We would be talking revolution here, just as there was a second American Revolution in 1787-1788.

That said, I know many conservatives who realize that whatever limitation mandates people like Ted Cruz and John Kasich would seek to impose upon such a convention, history tells us that those mandates would not be worth a hill of beans in limiting what could go into the convention’s creation for states’ approval. I for one would love to see parliamentary government, proportional representation, the elimination of the Second Amendment, and an equal rights amendment (broader than the one proposed but eventually-unratified ERA), nationalization of the election system, and provisions on the environment, education, and health care. And what the heck, let’s throw in the elimination of capital punishment while we’re at it.

Will liberals get everything they/we want? Of course not. Will conservatives get some of what they want? Yes. So it’s a crap shoot. But it would be the only way to even possibly resolve what I consider to be some really fundamental problems of both structure and social justice.

The question is, is it worth the risk? I really don’t know, but I am pretty sure of this. If we (liberals) decide the risk is too great, we could destroy the enthusiasm of folks on the right for the constitutional convention project by going public with our hopes for the outcome of such a meeting (as in what I have written in paragraph 2 above). Indeed, the prospect of the left using such a convention to achieve their goals is probably the greatest deterrent to the right moving forward toward a rewriting of the Constitution.