Demos Kratia 3
Demos Kratia 3:
With due deference to Jill Lepore …
We dance around the subject all the time. We never ask the big question: Is the United States governable? Or is it too diverse geographically, culturally, and demographically to cohere in any way other than the trivia of July 4th celebrations?
I am prompted into this thought by the introductory chapter of Jill Lepore’s new book on the Constitution. Her thesis appears to be that Article V is so constructed that has become a barrier to, rather than a door to, constitutional amendment. That creates a failure to adapt. Which in turn is both a negation of the Founder’s intention and a failure of democracy. Although she is careful not to use the word democracy given the obvious aversion to it embodied in the original document itself. One perverse outcome of the stasis imposed on American governance by this failure to amend, is that in our contemporary paralysis it is those who claim to be “originalists” who also claim the mantle of democracy. They do this on the basis that amendment ought not be through the decidedly undemocratic process of Supreme Court decision making. It ought to be through Article V. So, somewhat ironically, they rely upon an undemocratic document to advocate democracy.
Not that they actually advocate democracy. But that’s for another day.
The failure to amend the Constitution is stunning.
The American Constitution is the least amended worldwide. It has ossified despite multiple attempts otherwise.
The numbers speak for themselves [we owe a debt of gratitude to Lepore for compiling these numbers]:
- About 200 amendments were proposed at the state level during the ratification process
- There have been approximately 10,000 petitions calling for amendments
- 12,000 amendments have been proposed in Congress
- There have been 250 state conventions since 1776
- Those conventions have produced 144 new state constitutions
- Along with approximately 10,000 amendments being proposed at the state level
- Of which about 7,000 have been ratified
This compares with the paltry 27 amendments that made it through the Federal amendment process. With none running the gauntlet successfully for over 50 years.
This lack of adaptation to the times and wishes of the people has not gone unnoticed: in 1916 the political scientist Jacob Tanger wrote this:
“Taken as a whole the proposed amendments to the constitution afford an index of the real problems confronting the government and the people”
Real problems? Aren’t they the ones we use politics to resolve? Maybe.
This especially true of the battles to extend rights more inclusively throughout society, politics, and the economy which have had to be fought at a lower level than the Constitution. This, in turn, makes every step vulnerable to repeal. In other words “the people” have had to conduct politics to resolve their biggest issues without using the most basic legal tool in their possession. Indeed, they have had to ignore it because of its inflexibility. One consequence of this is to thrust the Supreme Court into the midst of day-to-day politics. Which is what the originalists now object to. It is through the intensity of the legal process, rather than through democratic debate, that major issues have to be resolved. So what are inherently democratic disputes have to be resolved undemocratically, with the inevitable risk that the legal system becomes tainted and politicized. The consequent cost to the coherence of the body politic has been enormous.
Perhaps this is the best recognition of all that the Constitution is undemocratic?
But that ignores the Founders most of whom were very well aware of the idea of democracy lurking in the conversations of their day. So they were clear that they expected their original effort at constitution-making to be updated regularly. For, as Jefferson said:
“Laws and institutions must go hand in hand with the progress of the human mind” being changed as “new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances.”
Amendment was expected. Article V is there for a reason.
But the Founders confounded themselves. Their folly being in their disregard for the awe with which they would inevitably be held by successor generations, and the constraint that such awe would place on the willingness of those later people to take upon themselves the onus of self-government. Instead, the easiest route within difficult later debates would be to avoid the tussle of amendment. It would become ever more likely that later generations would submit to being governed by their long dead forbears than undertake the dangerous work of democratic politics.
So whilst the phrase “we the people” has a glorious democratic ring to it, not only is that glory stained by the limitations of the definition of “the people” in the late 1700s, but is further stained by its ever more distant definition from that in use today.
And yet the idea of democracy was clearly being tossed around back in that era. It’s just that it had no definition. It still doesn’t. Instead it has become a placeholder for any number of similar notions — with the ogre of majoritarian rule being just one among many. Jefferson, again, put his finger on the problem:
“I know of no safe depository of the ultimate powers of the society but the people themselves”
But then he appeared to equivocate:
“If we think them not enlightened enough to exercise their control with wholesome discretion, the remedy is not to take it from them, but to enlighten their discretion.”
He sensibly leaves the definition of “we” in that sentence unresolved. So whilst we would love to honor the promise of democracy we have to be careful. We need to limit it. We need to place boundaries around it so that “the people” don’t do anything too disruptive or dangerous. But disruptive of what, or dangerous to whom? That is left unsaid.
Such, though, was the fear of the rawness of democracy that the Constitution became a veritable armory against it. As Lepore points out, the Electoral College, the malapportionment of the Senate, and the lifetime tenure of Supreme Court Justices, not to mention the byzantine rules within Article V all militate against it. She puts it rather gently:
“The US Constitution is older than modern democracy and is burdened with all manner of vestigial provisions [against it].”
Democracy, demos kratia, the power of the people, has been a slippery topic ever since it entered political discourse in the early years of modernity. We must give the Founders credit for acknowledging its existence, although they might, perhaps, have left the door slightly more ajar for its development.
What we can be certain of, however, is that subsequent generations of Americans have tried many times to inject a more contemporary view of politics into the original document. Those numbers quoted above testify to that effort. Article V, though, has stood in firm opposition. Justice Scalia once calculated that the cumulative effect of the various Constitutional hurdles needed for an amendment to be ratified implied that a mere 2% of the population could defeat the effort.
Some democracy.
Or, rather, contemporary democracy has to hobble along regardless of the Constitution.
Which is surely untenable.
One of these days the dam has to break. Amendment was designed to substitute for social and political upheaval. It was thought to be the method to be used to avoid fracture within the republic. It would, it was thought, vent vitriol sufficiently that violence could be avoided.
Yet it has acted in the opposite direction. It has made the intensity of reform so dangerous that Americans prefer to avoid it. So the urge to change gets pent up.
Until the populists break the dam?
Are we there?
Is the Constitution dead — as Justice Scalia is famous for saying?