Is it time to rethink and reengineer our Constitution? That is not hyperbole, but looking factually at a rather old document. Some purists may think this to be political heresy; I think it makes a lot of sense.
Our founding fathers — the fact that only men were involved might well be an issue in our modern world — did a marvelous job on their first effort. The fact that the document survives today is a testament to the job they did. What they did was to "engineer" a political and social structure quite unlike anything that had been done to that point in history. And, it was designed around a culture and a set of morals very different from today.
Aristotle (ca 350 BC) was the first to make a formal distinction between ordinary law and constitutional law, establishing ideas of constitution and constitutionalism, and attempting to classify different forms of constitutional government. The most basic definition he used to describe a constitution in general terms was "the arrangement of the offices in a state". He classified both what he regarded as good and what he regarded as bad constitutions, and came to the conclusion that the best constitution was a mixed system, including monarchic, aristocratic, and democratic elements. He also distinguished between citizens, who had the right to participate in the state, and non-citizens and slaves, who did not.
Over the next centuries, various states tried to create the "perfect union". Spain, France, England, The United States, there is now a long list of countries who have taken on this task and at least partially succeeded. There is a long list of democratic, pseudo-democratic, and barely democratic governments on the planet. The top ten, based on a scoring system, The Democracy Index, developed by the Economist Intelligence Unit, is a ranking of the countries based on their approach to governing. The top ten are:
Interestingly enough, the United States is not in the top ten; we are 25th on the list. While arguments can be made about how these rankings are developed, it seems to me that there is a general consensus that we don't measure up to most of the Scandinavian countries and a couple of others when it comes to democracy.
My argument is, that like any technology, any constitution, and our Constitution tend to be frozen in the time they were created. They reflect the values, morality, and social construct of the day. While it is true that we have amended our Constitution, it tends to be a somewhat archaic document. Since 1789 the Constitution has been amended 27 times, a laborious process as it should be to prevent willy-nilly changes driven by the whims of elected leaders.
I used the term engineer in referring to the founding father's efforts, and I believe this is a good way to view the document. It is not unlike engineering anything. The first copy machine, the first cotton gin, the first radio; these were all amazing breakthroughs as well as incorporating all the knowledge that existed at the time. Later generations of all these machines were built on the original using the modern technology of the time. Consequently, better and better machines were developed. I believe the same is true with any social/political/philosophical undertaking; it is only as good as the available social constructs of the time.
Let's look at the nation at the time the Constitution was written. The Philadelphia Convention that ultimately drew up and signed the Constitution was exclusively made up of white males. Women did not participate in governance or politics. Women couldn't vote. Children could be pulled from school and put to work at age twelve, or sometimes younger. It was a very different world with different values than we accept today. The following description of life in 1787 is from https://www.mcall.com.
"The United States has a population of about 4 million, scattered up and down the 13 states. It is overwhelmingly white and largely Protestant and English-speaking. Most people are from the British Isles, the largest number from England. Pennsylvania Germans are one of the few exceptions. They make up a third of their state's population. There are also 700,000 black people in America. About 90 percent of them are slaves. Although slavery is still legal in New York and New Jersey, almost all of the slaves are held in bondage south of Pennsylvania.
In the cities, the sweet smell of flower gardens mixes with the pungent reek of open sewers. The stench from the pits of the local tannery equals just about any odor produced 200 years later. The people you pass on the street may smell a little gamey to your late 20th-century nose. Bathing is a sometimes thing on all levels of society. And many people think it is downright unhealthy. Piles of horse manure and swarms of flies are regarded as obnoxious but unavoidable hazards of urban living. Although there are a few wealthy merchants, almost everyone is a tradesman or artisan who lives with his family above the shop.
Rural America seems like a foreign country. It is more isolated than is possible to imagine today. Flocks of the now-extinct passenger pigeon fill the sky, a bobcat's scream echoes off a distant hillside and at night unlit country roads seem strangely dark and forbidding. With a good horse on the best of roads you can make 50 miles a day. But wagons or coaches can cover only 12 to 20 miles in the same time. It is three days of hard bumpy riding from Philadelphia to New York.
Medicine is something practiced at home. Calling a doctor is regarded as a signal that death is near. And the germ theory of disease is still 100 years in the future. Old-fashioned remedies are the best you have. Sometimes they work, sometimes they don't. When it's time to pull a tooth or amputate a leg there is no anesthetic. You steel yourself to the pain and hope to survive.
A traveler notes that the day begins at breakfast where Americans, "deluge their stomach with a quart of hot water, impregnated with tea, or so slightly with coffee that it is mere colored water." Then, "they swallow, almost without chewing, hot bread, half-baked toast soaked in butter, cheese of the fattest kind, slices of salt or hung beef, ham, etc., all of which are nearly insoluble." Dinner or lunch follows with a mixture of beef puddings, turnips and potatoes that "swim in hog lard," and tea so strong, "that it is absolutely bitter to the taste."
But life in 1787 is not always a dreary round of chores. In cities there are amusements that range from horse racing, cock fighting and gambling to plays, libraries and philosophical societies. Drinking is popular. During the Constitutional Convention, those late-night strategy sessions among delegates are accompanied by much rum and Madeira.
Most Americans of 1787 have little time to keep track of the burning political issues of the day. White male property holders, and only those with a certain amount of property at that, are allowed to vote or hold public office. And, since polls are difficult to reach, many of those who are eligible to vote don't bother.
America of 1787 is a nation in embryo. It has no expressways or railroads, no computers or factories. It did not even have a capitol. Its loose union of states is a jealous alliance. One South Carolinian declared the residents of Georgia and New England were as different as Turks are from Russians. But it does have an idea. It is the belief that individuals have rights that no king or lord can take away. Citizens distrust too much power in the hands of any man or government."
It is against this backdrop of cultural values and social morality and norms that our founders crafted the Constitution. Radio, television, assault rifles, jet travel, computers, international relations and trade agreements on the modern scale, and the Internet and nuclear weapons were unimaginable to the folks that occupied our nation at that time, and yet they were charged with producing a document that that could withstand the test of time, and they did a pretty damn good job of it.
Today we face problems and issues that our founders could never have foreseen. There is the impact of globalizaiton, the eroding of congressional authority and the expansion of presidential authority. While the Constitution gave congress the power to levy taxes, there was no income tax until the Civil War. Many of the taxes we pay today were created in the 1920s and 1930s including the estate tax, gift tax, and Social Security taxes. Today we wrestle with the issue of same-sex marriages, and other civil rights that are argued in the courts without much guidance from the Constitution. This, and much more needs to be revisited as viewed through the eyes of not Thomas Jefferson, but the modern world. Can we provide better answers to future generations? We need to try.
What I am proposing is a new Philadelphia Convention, or Constitutional Convention - the name is irrelevant It would be a large gathering with representatives from every state, men, women, rich and poor, all nationalities and races, people of all religions, liberals and conservatives. It doesn't matter if it's a body of 200 or 300 people; it is critical that it represent a majority of citizens in our country. Their goal would be to bring the Constitution into line with a modern world, looking at the language as it pertains to the operation of our government and the system of laws and rights embodied in the Constitution.
They might have to work for two years on this. Those who need compensation should get it. There needs to be a process for replacing people who have to leave the work for one reason or another. There would undoubtedly be 1st, 2nd, 3rd, and maybe even 4th drafts. It might be done like a business proposal with red and gold teams reviewing the output. In the end, they would produce a revised and modernized Constitution. It would have to pass with a super-majority vote; if there are 300 delegates, 70% or 210 must vote for the finished document. One of the provisions of the new Constitution should be a review of the document, at least every fifty years, perhaps something less, but not so often as to create chaos.
Once the document is done, it would be ratified by the Congress. Again, a super-majority in Congress would pass it on to the states where it would be ratified by using the current quota of 38 states with a deadline that must be met. Upon ratification, it would replace the original Constitution.
I think and write and talk and then do it all over again.