We are being urged to celebrate our Constitution's 200th anniversary. I see nothing at all to celebrate. Rather, let us save our platitudes, our gleaming tautologies for 1991, when the Bill of Rights will have its bicentennial. Those 10 amendments are forever worthy of celebration as opposed to the peculiar and dismal document to which they were so sublimely attached. Although I am not entirely persuaded that a written constitution is a good idea, I am entirely opposed to the current bit of patchwork that provides us with so much injustice and civic corruption at home and mindless imperial aggression abroad.
Lately, the residents of the White House have taken to chattering about "the jurisprudence of original intent." Apparently, nothing that was not intended by the original inventors of the Constitution should ever become law. This is gorgeous nonsense since no one knows what, precisely, any of those 55 well-to-do white men originally intended. All that we do know is that they cobbled together a federal system that none regarded as sacred or, in some cases, even much good. Thomas Jefferson was safely out of the country when the essentially Tory Constitution was hammered out. He was so little enthusiastic with the result that he proposed a new convention every generation on the ground that, "We might as well require a man to wear still the coat which fitted him as a boy, as a civilized society to remain ever under the regimen of their barbarous ancestors." Poor Jefferson was a spiritual Darwinian. Little did he foresee that 200 years later we, his heirs, would be the barbarians and he a sad civilized unheeded voice from the past, while a barbarous stone effigy of him defaces what was once a decent Dakota mountainside. The only thing he got straight was that each generation would need to alter its institutions, while guarding its "inalienable" rights. Two centuries later, we maintain reverently our rotted institutions while addressing ourselves with ever greater ingenuity to the destruction of the Bill of Rights.
As I come not from law or academe, I feel obliged to make one reference to a predecessor in my field, as they say. Sixty years ago an American novelist wrote, "There is nothing like a Revolution for making people conservative; that is one of the reasons why, for instance, our Constitution, the child of Revolution is the most conservative in history." This is somewhat hyperbolic--ours was not much of a revolution and Athens' constitution, as described by Aristotle, is more conservative than ours--even so, Edith Wharton got it about right.
What to do? I am one of the few people outside of an institution who would like to see a new constitutional convention. To date, 32 state legislatures have voted in favor of such a convention. When another two states vote in favor, such a convention will be unavoidable. It is a nice irony that the far-right--disguised as conservatives--can take credit for so fundamental and radical an upheaval. In order to balance by law the budget, to put prayer to God and Mammon in the schools, to forbid abortion, pornography and drugs, each itemized in a Bill of Wrongs, they have set in motion the great engine that will overthrow the very Constitution which they insist be so strictly constructed, as originally intended by men they know nothing at all about in the light of world history of which they are so proudly ignorant. But then if you want fundamental and astounding change in the United States, look to those who call themselves conservative. If you want to keep the status quo as inviolate as, let us say, academic tenure, look to the liberals. As I am neither liberal nor conservative, I can view with a certain serenity the restructuring of our political institutions.
The first objection to a new convention is the how of it. Where will it convene and under what auspices? Who will be eligible to attend? Can it be restricted to a single issue like a balanced budget? If not, and the whole Constitution is rewritten, will the resulting arrangements be reviewable by the courts that now sit, or will those courts cease to exist if they have been restructured, too, and shorn, perhaps, of judicial review? A British historian once observed that nothing so puts the roses in the cheeks of an American as the possibility of constitutional change. Currently, the House Judiciary Committee is trying to derail the movement. After all, such a convention could--and probably would--supersede Congress. On the other hand, the American Bar Assn. sees no legal or, ironically, constitutional objection to such a convention. As for public opinion, there is none worth recording yet. There never is until the 30-second spots begin to show up on television.
Our educational system has never been zealous when it comes to telling us our actual history as opposed to our on-going and ever-shifting mythology about ourselves. I am aware that whenever the pollsters present the Bill of Rights as so many unidentified questions, a majority tends to reject most of them. So--wouldn't this popular and spontaneous dislike of our original rights and liberties make it all the more likely that the Bill of Rights would be the first to fall to the majoritari an will? I doubt it. Madison's observations on the iron law of oligarchy are as true today as in his time. A small group eventually does the work of conventions, congresses, nations. Contrary to current liberal opinion, there is no vast majority, moral or otherwise, back of the TV evangelicals. Although today's electorate is far less educated than that of the original 13 colonies, there is rather more good sense abroad than the cloistered few might suspect. In fact, the dangerous bees in bonnets are more apt to be found behind ivy-decked walls than within the homely confines of a dry-cleaning establishment. In any case, if there is to be a battle over our freedoms, let it be in the open, not in the attorney general's office or backstage at the Supreme Court. I think that the Bill of Rights might actually be enhanced.
When we next examine our Constitution, we shall also have to take into account our situation in the world as it is now and not as it was when a small agrarian country, shielded by two oceans, could develop pretty much as it pleased. The most useful model is that constant source of mirth, little Switzerland. The Swiss constitution is particularly applicable for a vast heterodox population. After all, Switzerland has four separate tribes confined, peacefully, in one small area. The solution is local autonomy within a federal system, which brings us back not to that Constitution whose glories we celebrate this year but to something more like the original Articles of Confederation. Our empire days are over. Our flag will never again go up over distant capitals. The guns are quiet--or they better be.
The executive office, as conceived by our founders, is a perennial wild card, easily played by the man who would be king. Next time around, we should settle for a ceremonial President who would act as referee, while the actual chief of government would be chosen by a majority in Congress. Those who contemplate the presidency with misty eyes should study a photograph of the White House when Truman had it rebuilt. The interior was entirely gutted. There were no rooms, no floors even, only the limestone shell was left. Once Truman had finished his renovation, he asked Eleanor Roosevelt to come see the result. I asked her what it was like when she came back to Hyde Park. She sighed and then said, "He is so pleased that he has finally made it look exactly like a Sheraton Hotel."
I take it for granted that new federal arrangements can be hammered out, and our existing institutions rationalized while maintaining those famous checks and balances so reminiscent now, in their perfection, of death. The Bill of Rights will be more troublesome. Our current radical rulers tell us that the 14th Amendment (protecting individual life and liberty) is not applicable within those states to whom the 10th Amendment reserves so many unnamed rights.
This position is unlawful but understandable. Unfortunately, those who hold it are profoundly illogical. For instance, they have invented something called the Drug Enforcement Agency--a name that sounds as if the agency exists to enforce each of us to take drugs.
Now urine tests and blood tests and polygraphic tests are all the rage. AIDS has been a godsend, literally, if one is to listen to the lusty TV evangelicals, who prefer adultery and simony to sodomy, and money to all else. Eventually, the federal government will have what is every government's dream, total control over the private--hence, public--lives of its citizens.
It is no accident that successful presidential candidates, ritually and hypocritically, run against the government. The people, instinctively, hate what is being done to them. That is why all of these intrusions and usurpations must be confronted quite soon, with or without a constitutional convention, and if this trend is not stopped in its tracks, then we must set in motion Jefferson's great anathema: "What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." That is why all of these intrusions and usurpations must be confronted quite soon, with or without a constitutional convention.
I am not so sure that there are many patriots left in this curious sad republic turned, most mischievously, empire. But the tyrants are very much in place. And we must set them right, somehow or other, so that we can pardon and pacify them. Ideally, within the frame of a new Constitution. If not ideally--well, human events will take their course. They always do.