The Constitution, and its imbued authority, has been the centerpiece of American governance and political culture for the totality of what has become the “American epoch.” But recently, actions taken by members of Congress, state and local governments, and the President, himself, have cast into doubt the validity and credibility of the “living” document.
In recent, high-profile policy battles over issues ranging from immigration and gun rights to the judiciary and executive appointments, separate but seemingly equally powerful institutions of government have engaged over the avenues in which they can conduct their business. But the greater concern emerging from these debates has been the inadequacy of the United States Constitution in deciding, convincingly, what is right and wrong about the way government functions.
Recently, US citizens have endured political in-fighting over issues as seemingly uncontroversial as raising the national debt limit, prohibiting illegal immigration, and preventing tax increases on the entirety of the American public. This has led to a resurgence of what seems to be a perpetual debate in Washington and around the country – what role does our Constitution play?
In the 1920s, Howard McBain changed the constitutional law field by claiming, to a degree of correctness still debated, that the Constitution was a “living document.” He claimed that the Constitution lived, changed, and adapted to the struggles in the modern era. To some extent, he is correct. Do not ask justice Antonin Scalia that, however. As he reiterated on Monday, the Constitution, to him, is a “dead, dead document.”
But this brings up an interesting point; namely, “Which is better?” Should our Constitution live and adapt to the challenges we face 100 years from now? Should it be static and continue to govern with the goals of centuries gone by? Should we abandon all hope and revisit, revise, or reject our founding charter with the intention of creating a new rule of law?
Back in December, Louis Seidman of Georgetown University penned an op-ed in The New York Times examining this same question. His conclusion was that we should no longer rely on the nearly 225-year-old document to govern a country that has grown to a size and into a culture that the signatories could never have imagined. We should write a new charter, Seidman said, not abandoning our foundations (a federal republic with separation of powers, a bicameral legislature, etc.), but applying those foundations to a new culture and allowing for a more efficient governance. This is seemingly drawn from a deep desire to avoid constant delay and to modern struggles like the filibuster, hold-on nominations, and time between consideration of bills and additional legislation.
Now, I do not profess to have constitutional training or knowledge to the extent of Seidman. However, his argument fails to account for what has traditionally been defined as “American exceptionalism.” Seidman’s complaint about our Constitution lies neatly in its non-regulatory, freedom-loving structure. The Constitution is a positive document, assuming people have rights, rather than a negative one, granting rights to people by the government.
But this is precisely why our Constitution works for us. Yes, occasionally the Constitution becomes a burden under which we must function. But its non-regulatory structure gives options and openness to the private enterprises in this country. Without regulation, the US has become a bastion for private enterprise. We have fostered the growth of “Wall Street, State Street, Menlo Park, and Silicon Valley,” as David Brooks wrote. We have grown on our private citizens and off of the fruits of that labor, and that should not change anytime soon.
We return to our original question. Precisely how can the country continue to function, and should we change how it works? The answer to both questions is no. The country has forever garnered growth in private enterprise, leading to a stronger, more diverse country. This then leads to our growing pains. But to react to those pains by changing the source of the freedom to act seems more like killing bees because one flower died in your garden. Yes, it is that ridiculous.
So we must continue to deal with the issues. The contention that we abandon ship on our Constitution is naught but folly. We have always continued to adapt our charter and that adaptation will continue. Sorry Justice Scalia, the Constitution lives and it will forever.