Tuesday, Jan 4, 2011
Let's stop pretending the Constitution is sacred
Michael Lind
Will conservatives restore America to constitutional government? The new
Republican leadership in the House of Representatives has promised not only
to begin the new congressional session by reading the Constitution in its
entirety, but also to require that every new piece of legislation cite the
passage in the federal Constitution that authorizes it.
These gestures are certain to please the conservatives of the Tea Party
movement who are the ascendant force in Republican primary elections. But Tea
Party constitutionalism represents a deeply flawed understanding of
America's founding, which ought to be based on the revolutionary idea of the
power
of the sovereign people to make and unmake constitutions of their design,
not on superstitious veneration of particular constitutions handed down by
wise demigods.
Tea Party constitutionalism blends several American traditions. One is the
tradition of hostility to the federal government chiefly associated with
the South, which adopted states' rights ideology in order to resist federal
interference first in Southern slavery and then in Southern racial
segregation. Now that the Republican Party, founded as a northern party
opposed to
the extension of slavery, is disproportionately a party of white Southern
reactionaries, dominated by the political heirs of the Confederates and the
segregationist Dixiecrats, the denunciation of many exercises of federal
authority as illegitimate would have been predictable, even if the president
were not a black Yankee from Abraham Lincoln's Illinois.
But there is more to the constitutional theories of the modern GOP than
neo-Confederate ideology. Beginning with the adoption of the federal
Constitution, some Americans have sought to promote reverence for this
particular
Constitution, while others have emphasized the power of the
Constitution-making people. Thomas Jefferson thought that laws and
constitutions should be
updated frequently, while his friend and ally James Madison thought that
constitutions and laws should be changed only infrequently in the interest of
stability. John Adams thought that the founders of constitutions should be
revered, as in ancient Greece and Rome.
* _Continue reading_
(http://www.salon.com/news/politics/war_room/2011/01/04/lind_tea_party_constitution/index.html)
Madison and Adams won the argument. The folk culture of American
constitutionalism blends themes from 17th-century English Protestantism and
18th-century neoclassicism. From Protestantism comes the rejection of the
"Catholic" idea of an evolving scriptural tradition interpreted by an authority
--
the Vatican or the Supreme Court -- in favor of the idea that the Christian
or American Creed is in danger of corruption if it strays too far from the
literal words of the original, perfect revelation. According to the
Washington Post, one Tea Party member in Louisiana "has attended weekend
classes on
the Constitution that she compared with church Bible study."
>From 18th-century neoclassicism comes the idea that citizens of a republic
must be taught that their constitutions are perfect and were handed down by
superhuman lawgivers or "Legislators" -- Solon in Athens, Lycurgus in
Sparta -- and must be preserved without alteration as long as the republic
endures.
The blending of Protestant fundamentalism and neoclassical
Legislator-worship explains the semi-religious reverence with which the
Founders or Framers
or Fathers of the Constitution have long been discussed in the United
States. Other, similar English-speaking democracies -- not only Canada,
Australia and New Zealand but modern Britain itself -- achieved
self-governance or
universal suffrage generations later, when these Protestant and
neoclassical traditions had died out in their domains. The Canadians do not
revere
their first prime minister, John Macdonald, and to this day the British do
not even have a formal, written constitution. Our Anglophone peers regard
American constitution-worship as bizarre and quaint, like our fondness for
displaying the national flag.
English-speaking democracies tend to be stable and free even when, like
Britain, they lack a written constitution. But Latin American republics have
been afflicted by dictatorship and civil war for generations in spite of
having formal constitutions modeled on that of the United States. The contrast
demonstrates that the true security for freedom is a culture of
constitutionalism, not a particular constitution, or any written constitution
at
all. The details of a particular democratic political system -- presidential or
parliamentary, bicameral or unicameral, unitary or federal -- are
ultimately less important than the unwillingness of the citizens to resort to
violence when they lose an election, unlike the Confederate ancestors of so
many
of today's white Southern Republicans, who tried to destroy the country
upon losing an election.
The federal Constitution drafted in Philadelphia in 1787, as amended, is
still in effect in the United States. In contrast, France is now under its
Fifth Republic. An old joke has an American in Paris asking a bookseller for
a copy of the French constitution. Irritated, the Parisian bookseller
replies, "We do not sell periodical literature."
But the joke is on Americans, not the French. Indeed, the 50 states are
very "French" in their populist approach to constitutionalism. Most states in
the Union have gone through several constitutions, with no apparent harm.
Many of today's state constitutions in the Northeast and West Coast date
back only a few generations to the Progressive era, and show the influence of
belief in apolitical, technocratic executives in the number of state
officials appointed by a strong governor. At the other extreme, many
constitutions adopted by the defeated Confederate "Redeemers" following the
Civil War
create weak state governments and feeble governors. The influence of
Jacksonian populism accounts for the fact that in some states most executive
branch officers and even state judges are directly elected.
In no state, to my knowledge, is there a cult of the all-wise Founders of
the State Constitution, who drafted the most recent of several state
charters. Few legislators, even few conservative Republicans, would be able to
tell you the date at which their latest state constitution was adopted, much
less name any of the drafters or ratifiers.
The treatment of state constitutions as mere charters of government to be
periodically updated or replaced, not secular versions of holy scripture,
gets it right. The essence of American republican liberalism is found in
Jefferson's words in the Declaration of Indepedence: "That whenever any form
of
government becomes destructive of these ends, it is the Right of the
People to alter or to abolish it, and and to institute new government, laying
its foundations on such principles and organizing its powers in such form, as
to them shall seem most likely to effect their safety and happiness." Here
there is no implication that a perfect code of laws has been handed down
to later generations by a superhuman generation of Lawgivers, who should be
worshiped as demigods century after century. Constitutions are above
ordinary statutes, to be sure, but both constitutions and laws are ordinary
rules
agreed upon by members of the sovereign people, not to promote their
eternal salvation or to conform to some mystical law of nature discerned by
philosophers, but to "effect their safety and happiness." Not only are later
generations in a free and democratic republic likely to include as many
intelligent, patriotic and virtuous people as the founding generation, but
later
generations have more knowledge of what works and does not work in
politics in their country and other societies.
Of course federal laws should be constitutional. But if we as a people want
the federal government to do something that the present constitution does
not permit, let's amend the much-amended constitution once again, or
replace it with a completely new constitution, as the states have frequently
done. The U.S. Constitution is not the stone tablets of the Ten Commandments,
and James Madison and John Adams were not Lycurgus and Solon.
* Michael Lind is Policy Director of the _Economic Growth Program_
(http://growth.newamerica.net/home) at the New America Foundation...
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