“Let’s give up on the Constitution”

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.

Stock Photo of the Consitution of the United States and Feather Quill. . . before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

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.

24 responses to ““Let’s give up on the Constitution”

  1. Provocative op-ed piece, wasn’t it? I’ve been thinking about it all day. There is certainly enough wiggle room in that drafty document to take care of what needs to be done (first on my list — gun control). Silly Congress.


    • Elyse, my pet peeve is money in politics and the permanent campaign that is the result. Everyone is always running for office (read ‘raising money’) instead of actually governing. Gun control could happen without the NRA – control, not abolishment. But it could happen.


  2. Good luck “extricating [oneself] from constitutional bondage so that we can give real freedom a chance.” The constitution works pretty darn well and is more than flexible enough to handle changes. Getting rid of it entirely would be anarchy. After all, the military swears an oath to “support and defend the Constitution of the United States against all enemies, foreign or domestic,” not to the American people, so anyone who tried to dispense with the Constitution would literally have a fight on their hands. And it would be a fight they could not win.


    • Actually Sean, I think direct democracy would be a disaster, and much of the constitution should be inviolate – the op ed suggests that our traditions mostly conform iwth the document and we’d know what must be absolutely not fiddled with – First Amendment,, bill of rights etc.

      He also mentions that for over two centuries we’ve had differences of opinion in interpretations and different SCOTUS philosophies prevail . . . which of course means that most of the time half of them get it wrong – at least according to one side or the other.

      While it would be bad to have direct democracy, it is very possible to discern the will of the people, especially today. That should be a consideration always.

      And how are you fella?


      • Surviving, but not thriving.

        Not sure I can handle another five years if they’re anything like the last five. That said, I finally sold a fiction short story, which I’ll announce on my site in the near future.


        • Well that’s great news. I look forward to it. You’re a fine writer and I’m betting this “is the start of something big”.


          • I sure hope so. Working in finance has been nothing but terrifying these last five years. Too much instability.


            • I’d be interested to know your thoughts on the graph I just put up on the front page.


              • This has been Krugman’s argument for quite some time, and there is certainly an element of truth to it. The problem is that the government is spending what it is borrowing. A good business would use these rates to restructure debt. In other words, to borrow money at low rates and use it to repay debt held at higher rates. But our government isn’t doing that. Instead, it is behaving like a crack addict, and spending more money rather than taking a balanced approach and reducing spending coupled with tax increases on all Americans.


                • Thanks – that’s interesting to me . . . restructuring sounds like it would make sense even if we were borrowing at the same time. Do’t even know if that makes any sense, we’re moving into wonkdom beyond my ken now! 😆

                  Happy New Year Sean – here’s to a better 2013!


                • Yeah, I don’t even know if it would be possible. It would drive bond prices through the roof.

                  Happy 2013 to you as well, Moe!


  3. This is interesting stuff – and I’m always fascinated by the thought that if the people, or a majority, makes a new constituion and declares it authorative, well, it is.

    And Jefferson in the Declaration did write (right after the words “pursuit of Happiness”..):

    That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government , laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.


    The problem is not the Constitution – but private money ruling politics. And good luck with replacing or adjusting the current Constitution without skewing that balance even further.


    • As usual mac, I’m with you . . . money is the most corrupting influence and how much it takes to stay in government office assures the power of those with the most money. Things like private individuals financing a single candidate – see Gingrich, Adelson – should make us recoil. Money is speech? Money like this is poison to a country.


      • Yep, it’s poison.
        $3 billion for an election? Some old dusty references to the fall of The Roman Empire becomes ever more relevant.

        That said –
        it’s great talking a bit again, and thanks so much for a super year!
        All the best wishes for 2013!!
        Your blogfriend, mac 😀


  4. Of course, Fox News is lambasting the commentary while ignoring what it says in context. Why am I not surprised?

    Happy New Year, Moe!


    • I think they have a room full of little trolls who spend the dark nights mining papers etc in the ‘librul media’ for material to challenge and mock the next day. An op ed like that is owrthy of discussion instead of just attack.

      That said Ahab, I iwish a very Happy New Year to you too!


  5. The NYT article is surely an interesting read, and that it is by a knowledgeable scholar gives it some heft. The whole discussion reminds me not only of the importance of SCOTUS appointments but of the virtually unlimited power the justices have in interpreting the ancient document. There ought to be a mandatory retirement age for them – that’s way too much power for so few individuals, and of course oftentimes there is only one swing vote on which crucial decisions depend. We should never forget that these nine people are human beings and have warts a bunch. Consider the significance of the fact that they have never collectively had the wisdom to move for such an action themselves – so much for altruism.

    I agree with Mr. Hazlett however that we are unlikely to defy the Constitution any time soon. What I do think is possible, albeit still unlikely, is an amendment that would forbid the practice in Congress of allowing a majority of the majority in either body to forestall a vote on an issue, i.e., kill the filibuster.

    Happy New Year everybody.


  6. No matter what someone’s party affiliation, it is said the Constitution is wrong when it doesn’t suit their immediate political objective. Yet, it is still here.

    Anarchy has been tried before, but it doesn’t work very well.


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