Designing America, #2: The Constitutional Convention

In eloquent language, our Declaration Of Independence of 1776 outlined the goals and ambitions, the lofty ideals of the nation's founders. Many of these ideas were voiced earlier by English and French philosophers.

The Declaration presented a long list of reasons why political separation from England was necessary. As colonies, the settlements in America were investment tools of the English, and in some respects had the status of virtual slave states. The English took much and gave little back. In the colonies, everyday affairs reached a crisis in many areas of law and commerce. Nearly every official act required English approval, and it took three months to send a message by sea from America to England. Once the Parliament made a decision, a decision often not in the best interests of those living in the colonies, it took another three months for word to get back to America. Failure to comply with the interests of the English could result in capricious and severe punishment, often without benefit of a trial.

The decision to become independent was born of extreme necessity and hardship. These are the conditions that breed revolution, conditions I hope we can avoid in the future. However, history puts the odds against that happy possibility.

After a long and bloody revolt during which the people and the army suffered extreme hardships, the American leaders found themselves with a country, and now they had to design a government. Eleven years after the Declaration of Independence, in 1787, 52 delegates from thirteen colonies met again in Philadelphia. Although few in number, the delegates were among the best educated and most articulate thinkers in the new country. After four months of debate and compromise the new design, The Constitution, was ready to submit to the states.

Each state was to elect delegates to its own ratification convention, and nine of the thirteen states would have to ratify the new government design before it took effect. In May of 1790, twenty-four years after the Declaration of Independence, the last of the thirteen states finally ratified the Constitution. We often forget how long the whole process took. Bitter arguments raged all over the country during those years of decision. It was only after the Bill of Rights was assured, as amendments to the new Constitution, that some states were willing to accept the new plan.

In all probability there will never be another constitutional convention in what is known today as the United States of America. Changing our Constitution, for many people, is unthinkable. The founders of the nation foresaw this problem when they included in the Declaration of Independence this admission:

"Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."

Constitutional government in the United States is now long established and cannot be expected to yield easily to any change. Nevertheless, it is profitable to think about what changes might be needed and how those necessary changes might be made in a gradual, democratic and orderly way.

The United States Constitution, I think, contains a flaw in its failure to set efficient terms for its own orderly revision and evolution. It is a legal fossil frozen in time when it should be a living creature with the inherent potential for self-correction, change and growth. The amendment process is not enough. One initial constitutional convention is not enough. A continuing process of review and revision must be developed if we are to avoid reaching a time when certain cumulative evils are no longer sufferable. Perhaps the worst of these insufferable evils will be the decreasing power of the individual citizen to have any vote or voice in how the government is designed.

The Supreme Court interprets the Constitution, but the word interpret is troublesome since The Constitution is, after all, written in English. By now, its actual language may be out of date. It is often vague as well as silent on many current problems. While we hold dear most of the essential ideas and values embodied in our Constitution, its meaning should not require critical interpretation of language that is now two centuries old.

The original framers of the Constitution were writing a document for the country as it was then, not as it is today or will be tomorrow. While they surely had posterity in mind, they were not so foolish as to think that they could write laws to govern the behavior of unborn citizens two hundred and more years in the future. Nor, of course, can we do that today. Congress was given the power to enact new laws, of course, but what the Congress can do is limited to what is deemed constitutional. The Constitution places limits on the power of Congress, and it falls to the courts to clarify these limits when they are ambiguous.

As time and events force increasing judicial interpretation, the courts gain the power to make decisions that are, in fact, new laws. This so-called case law is complex and rather remote from the ordinary citizen who has had no vote in their passage. So it is that an ancient and vague Constitution gives unwarranted interpretive power to an unelected, appointed body with absolute power, a body that should merely judge the merits of disputes, not the meaning of our governing document. These unelected, politically appointed judges enjoy secure lifetime positions.

In coming articles I shall describe what I think is a reasonable plan for the continuing re-design of constitutional government. Any continuing design of a government can be ended by revolution or enhanced by controlled evolution. Fear of change would be our greatest problem in continuing the design process so well begun in the late 1700s.