In January 2011, at the start of the 111th Congress, it was decided the first order of business would be to read the United States Constitution. At least, that’s what the Congressional leadership claimed to be doing. In fact, what they actually read was a version of the Constitution they would rather have had.
While I don’t want to make this post politically focused, in the spirit of this blog, I do want to suggest that looking far into the future, we should recognize that it will be rewritten eventually. And, once we look ahead, as is so often the case, we begin to see the present somewhat differently. With that as a preface, I can think of at least three factors that argue for making the change sooner rather than later.
First, when House Speaker John Boehner led the reading of the Constitution “as amended” he almost certainly did so because to read the original out loud was just too embarrassing. At the time it was written, slavery was an accepted institution, and was acknowledged in the document in what now seems a shameful accounting. Then, reading through the series of Amendments, it becomes apparent that it took more than a century for this document, deemed sacred by some, to fully recognize every person as equal under the law. It’s not a history that exactly shouts “freedom and justice for all.”
The original language of the Constitution reflects a long and embarrassing history of discrimination.
Second, the language is often awkward in ways that obscure, rather than clarify, its intent. For example, whether you support gun ownership or not, the second amendment is a modern conundrum.
“A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
In 1789, local militias were a necessary element of security - armed with muzzle-loading black powder muskets and pistols, with single shot cannon being the most advanced form of weaponry known. In the ensuing 227 years, the world has seen the development of military technology from machine guns to nuclear missiles, while the role of militias has been subsumed by the National Guard in all fifty states. So the stated purpose of the second amendment no longer applies. In modern times, judicial cases have contorted the meaning to protect individuals’ rights to own weaponry for self defense, though the level of capability is still open to debate - something more than a single shot handgun, but short of nuclear warheads. As a citizen in 2016, I don’t have the guaranteed right to own and operate an automobile, but I do have the right, one could argue, to own a main battle tank.
Original meanings make no sense in modern times.
Finally, the current dispute over filling the Supreme Court vacancy left by the passing of Justice Scalia highlights one of the major failings of the document - it’s lack of specificity. Ironically, the reason Senate Republicans can get away with refusing to consider the President’s nominee is that the language is too open to interpretation. Even the responsibility to consider and vote on a nominee is too vague to compel action by a recalcitrant faction. And the importance of the political ideology of the nominee is further evidence of the very same imprecision.
Vague language leaves too much room for factional mischief.
Thomas Jefferson offered the opinion that the Constitution ought to be rewritten every 19 years. Looking at things from that point of view, it seems quite reasonable. In fact, the constitution we’ve had for the last two centuries was itself, a do-over. The Articles of Confederation it replaced were a colossal failure that triggered a convention to come up with an alternative. In the spirit of design thinking, the Convention came up with a prototype, open to adaptation, based on learning what works and what doesn’t. But design thinkers are also ruthless about using prototypes to learn, then moving on. One might begin to think that our prototype has now served its purpose, and it’s now time to use what we’ve learned to create a better version.