Is the Constitution the problem?

For about 45 years now, many if not most members of the Boom generation has been convinced that all would be well is they could simply run the world.  Such illusions come naturally from growing up in a remarkably stable society in which parents, convinced that their children would naturally follow in their footsteps, left them alone to form their own opinions.  Their parents' decision to undertake the Vietnam war encouraged Boomer self-confidence.  As I pointed out in one of my very first posts here, no one ever exemplified this aspect of his generation better than George W. Bush.

Jeffrey Toobin, born in 1960, belongs to the very tail end of the Boom generation.  He entered Harvard in 1978 and thus could have been one of the 160 students who took my lecture course during my last two years there, but I do not think that he was.  He is a graduate of Harvard law school whose legal career was brief, and he became a legal journalist instead.  I enjoyed his book on the O. J. Simpson case very much, and most of his work on legal issues is absorbing and very good.  Last week, however, in The New Yorker, he had an article suggesting that what is really wrong with the United States today is--you'll never guess--the U.S. Constitution.  He is not very forthcoming about how exactly he thinks it should be changed, and he has to admit near the end of the article that the Constitution is fiendishly hard to amend, but the article generally gives the feeling that the Constitution strikes him as yet another useless artifact of a bygone era such as dial telephones, cars with fins and V-8 engines, and transistor radio sets.

Toobin begins with an argument that has become fundamental to Boomer academic views of the world.  The worst aspects of the Constitution as adopted in 1787-88, he says, are that it institutionalized "race and gender discrimination."  I am rather fascinated by the popularity of this argument, because anyone who takes the trouble to read the document will realize that it is not true.  Certainly the original Constitution did not outlaw race or gender discrimination, or even slavery, but it did not bless them either.  Slavery at the moment that Constitution was adopted was in retreat.  It was being abolished in the northern states, it had just been banned from the Northwest territories (the future upper midwest), and even many prominent southerners were freeing their slaves upon their death.  The founders took great care not to refer to slavery by name, the reason for the convoluted language that occurs whenever they have to refer to it, such as in the three-fifths clause.  As for gender, the Constitution invariably refers to "persons" or "citizens," not "men," and there was nothing in it to forbid states from granting women the vote, as some of the western ones did in the late nineteenth century.  The abolitionist and escaped slave Frederick Douglass argued exactly the contrary before the Civil War--that the Constitution could not be reconciled with slavery--and that was a stronger argument than the reverse.

Toobin then focuses on the undemocratic features of the Senate as a major source of our ills.  Here he has a much stronger case.  The Senate does give hugely disproportionate power to smaller states, and this is much truer now than it was when the Constitution was adopted.   At that time, Virginia, the largest state, had ten Representatives and Rhode Island one, while both had two Senators. Now California has 53 Representatives and Wyoming and five other states have one each, but all of them still have two Senators.  Toobin then adds that the filibuster has made the Senate an even bigger obstacle to democracy.  He is right, of course, but the filibuster, like slavery in 1787, isn't mandated by the Constitution, it is simply allowed by it, since Article I gives each house of Congress the power to make its own rules.  And indeed, it has been convincingly argued that the Constitution in effect does specify a majority vote as all that is necessary to do business in the Senate, since it specifically calls for a two-thirds vote to ratify treaties or convict an executive officer in an impeachment trial.  Under traditional Anglo-American legal doctrine, tying such a requirement to specific cases implies that it is limited to those cases only.  Unfortunately, the courts have been unwilling to hear this argument, but the Senate itself has just shown that the filibuster rule can be amended by a simple majority vote.

Toobin's argument is based, naturally, upon our current political deadlock, but even there he is on somewhat shaky ground.  The key event of the Obama Administration, of course, was the Republcian landslide in the House of Representatives in 2010, which immediately made it impossible for the President to accomplish anything further.  It is true, as he points out, that the Republicans in several medium-size states promptly gave themselves an unbeatable advantage through redistricting, without which it is possible--although in my opinion, not as likely as one might think--that the Democrats would have regained the House in 2012.  In any case, the more democratically chosen House, not the Senate, has been the major obstacle to getting anything done for the last three years.  (In another misstatement of fact, Toobin claims that the Senate blocked the Clinton health care reform in the 1990s.  As a matter of fact it never passed either house.)

Toobin quotes several legal authorities or polemicists (includng the talk show host Mark Levin, who sometimes sits in for Rush Limbaugh) who also believe the Constitution is fatally flawed.  One law professor, however--Akhil Amar of Yale--argues that the Constitution is not the problem--what is wrong is what has happened to the Republican Party.  "One half of one of our two great political parties has gone bonkers," says Amar.  "That's the problem. Not the Constitution."  That is also a typical Boomer statement, defining anyone in fundamental disagreement with one's self as crazy, but I think it's a great deal closer to the truth than the argument that the Constitution is to blame.

The Constitution itself does not pose an insuperable barrier to effective political change in the United States.  The federal government has had an enormous impact upon American life during the Civil War era, the Progressive era, the New Deal, and the era of the Great Society and its aftermath.  In the last three of those eras a broad consensus led large majorities in both houses to pass sweeping legislation and even constitutional amendments.  That consensus, however, has evaporated over the last half century, and whether or not one chooses to define the Tea Party as "bonkers," that is why we are in the mess that we are in today.

To understand where we are it is not enough to point out that California, with 50 times the population of Wyoming or North Dakota, has the same number of Senators; we must also ask why the Senators from the smaller states see the world so differently.  The smaller states are, in all probably, the ones with the highest percentage of white people (although I am pretty certain that that percentage is falling in every state of the union.)  But more importantly, it seems to me, in the last half century the Democratic Party has failed to persuade the inhabitants of those states that it has anything to offer them.  A large percentage of the population of less populated states were farmers in the New Deal era and even in the middle of the last century, and the New Deal and later farm programs saved them from being wiped out. The New Deal also brought electricity and better roads to the countryside.  Many voters appreciated these changes.  Now farm programs chiefly benefit agribusiness.  Many of the smaller states are dominated by energy producers, a trend which fracking seems to be increasing.  Equally importantly, state governments have drastically been weakened in states like Pennsylvania, Ohio, Wisconsin and Michigan, allowing the Republicans to gain control of those state governments and pass redistricting plans.   As I ponder all this, it occurs to me that the Republicans may understand better than the Democrats how crucial the fight over the Affordable Care Act is.  If it works it could create a major new Democratic constituency in every state of the union.

Toobin's problem--and Amar's--are characteristic of the eastern elite, particularly in academia.  Because academics live in a politically monolithic environment they have trouble taking opposing ideas seriously.  Nor can they believe, given the pampered lives they lead, that there can be anything seriously wrong with the country.  If some one disagrees with them they must simply be crazy; if their ideas do not pass Congress, institutions must be to blame.  Meanwhile, Democrats have collaborated with Republicans in dismantling all the major pillars of the New Deal and allowing inequality to grow.  They should not be shocked that the average American does not put a high priority on keeping them in office.  One of the interesting things about Toobin's article is his failure to discover anyone actively pushing for changes in the Constitution along lines that he would find more congenial.  The activists he interviews who want new amendments are all ultraconservatives who want to cripple the federal government.  Bill James, the founder of baseball statistics, defined in the 1980s something called the law of competitive balance.  Winners, he argued, naturally adopted conservative strategies that rapidly took away their edge; losers tried harder and became winners.  That has been the story of the last 40 years of American politics.  It is the reason that conservatives can now use the Constitution to block progress.  The Constitution is not primarily at fault.