That provocative headline got me – and no doubt millions of others – to read this op-ed in The New York Times (caution: possible paywall). Its author first notes how unproductive the offers and counter-offers on avoiding the fiscal cliff have been. He says the arcane limitations under which Congress must proceed – as dictated by the Constitution – are one barrier to producing any sensible legislation to send to the President. He blames in part our blind adherence to Constitutional prerogatives.
Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.
He reminds us of one of my own favorite facts of American history, one that is routinely ignored:
Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.
It was because of these subversive proceeding that the gathering in Philadelphia famously kept all windows closed during their deliberations. They worked in a steam bath rather than chance being overheard by those who lurked outside Independence Hall. They knew their behavior would be widely seen as subversive.
Moving from one year onto the next – as we will do at midnight – should remind us all that the arc of history always favors leaving the past behind and stepping into the future.
Originalism be damned.