So you’re unhappy with the Supreme Court judges who turned the clock back on environmentalism, abortion, school prayers and guns? Are you angry because they are ideologues with a reactionary agenda, flexing their muscles to destroy rights, weaken government, and endanger the planet?
Me too. They are reprehensible.
But let’s be honest: the problem is not only with the judges. The problem, or at least a significant part of it, lies in the US Constitution itself.
Yes, the sacred Constitution, a document drafted in 1787 by 55 wig-wearing men in Philadelphia. Our esteemed charter that lays out the fundamental rules and principles that underpin the American experiment: freedom of speech and religion, separation of powers, federalism, bicameralism, and all the other checks, balances, rights, promises, and innovations that make this nation what it is.
These days the Constitution is showing its age.
“It was written by a small group of white male landowners who clustered along the East Coast in a predominantly agrarian society in the late 1700s,” said David S. Low, a University of Virginia law school professor who studies courts and constitutions around the world. “How can it meet the needs of a very diverse country of over 300 million people in the 21st century, a military and economic superpower in a globalized world, a highly developed post-industrial nation that stretches from sea to shining sea? ?
In its defense, the 235-year-old Constitution proved remarkably resilient. It is the oldest constitution still in force in the world. Many young countries have used it as a model or source of inspiration, starting with France, whose revolution took place just a few years after ours. Countries emerging from colonialism in the 20th century also used it.
But today it is too inflexible, not democratic enough, and even somewhat non-functional. Many are looking at it now less like a role model than as an example of what to avoid.
Here are some criticisms.
The constitution created an undemocratic US Senate that gives the same representation – two senators – to a state like Wyoming, which has fewer than 600,000 people, as California, which has almost 40 million people.
He established a voting system that allows the election of presidents who did not win the popular vote.
It contains outdated and dangerous provisions, such as the anachronistic “right to bear arms,” which reflects long-forgotten fears dating back to post-revolutionary America. Today, no country protects the right to bear arms in its constitution, with the exception of USA, Guatemala and Mexico.
Moreover, constitutional thinking has evolved since 1787. Today, most new constitutions include many more enumerated rights than ours,” notes David Lowe. For example, the right to education, the right to privacy, food, health care and housing. Many modern constitutions protect reproductive rights, freedom of movement, the right to unionize, and the rights of persons with disabilities.
Today, over 100 national constitutions include explicit references to environmental rights.
Women’s rights are highlighted for protection in 90% of modern constitutions.
These kinds of rights, not mentioned in our Constitution, reflect the challenges of the 21st century. Today, no one cares about quartering troops or creating well-organized militias.
Compared to the modern constitution, ours is short and vaguely worded. “That’s why we have a heated debate about interpretive theories,” says Mila Verstig, who is also a professor of law at the University of Virginia. “Because the text of the Constitution gives so little guidance.”
The absence of specificity in the Constitution leaves much to the discretion of the Supreme Court, giving a huge amount of power to this group of nine unelected judges. (Especially since the Constitution also grants them a life sentence.)
This system could work well enough if judges interpreted the broad principles with an eye to the present and the future, allowing for constitutional adaptation and flexibility.
But these days the court is in the hands of a group of arch-conservatives and so-called originalists who believe that the text of the Constitution should be strictly adhered to and, when interpretation is required, rely on what they believe the framers of the constitution in 1787 believed.
This makes our Constitution seem even more outdated.
Of course, if we feel trapped in an archaic constitution, there is a mechanism to revise it: it can be changed.
So let’s do it, right? Let’s ban corporate money in politics! Protect the rights of gays, transgenders and women! Fix the Senate!
Most countries replace their constitutions every 19 years average. Thomas Jefferson believed that every new generation should write a new constitution.
Unfortunately, amending the US Constitution is extremely difficult; it requires a two-thirds vote of both houses of Congress and thereafter ratification by three-fourths of the states. Double supermajority.
That is why it has only been amended once in the last 50 years.
And political polarization makes it even harder to make adjustments.
Now I do not mean that the Constitution needs to be changed or even radically rewritten. It has many strengths, and there are advantages in a battle-tested system. Also, we don’t want it to be too promising; some countries (North Korea, for example) guarantee rights that they then cannot defend.
In addition, opening up the Constitution to drastic revision could also lead to unwanted changes. A constitutional convention, currently supported by many right-wing Republicans, carries serious risks.
But we will never solve our problems, at least not without a frank discussion of what works and what doesn’t.
It is not a blow to the creators to admit that they have not produced a document that fully solves our 21st century problems. How could Benjamin Franklin, James Madison, or John Jay foresee TikTok, GPS, unmanned drones, rapid-fire assault rifles, or school shootings?
They couldn’t. But it is hardly unreasonable for us to want a constitution that solves the problems that worry us today, and not those that faced the new republic in the distant past.