“A Republic, If You Can Keep It”
Our Constitution is old and tired
There is a story about someone approaching Benjamin Franklin as he was leaving the secretive Constitutional Convention at the conclusion of its work. “Dr. Franklin,” he was asked, “what form of government have you designed for us, a monarchy or a republic?” The wily old sage supposedly replied, “A republic, if you can keep it.”
Franklin’s caveat is more relevant today than at any time since the crisis of the Civil War. Our deepening political and cultural polarization, dysfunctional institutions, and increasingly frequent and serious talk of secession and collapse force Americans to face the possibility that we might not, after all, be able to keep our republic intact.
There is much to ponder about the potential end of the American experiment. Is it inevitable, maybe even necessary, and, if achieved peacefully, could it be beneficial in some ways? Or would it be a tragic and preventable disaster? I will reflect on these questions in future writings; for now, I want to consider one of the underlying structural reasons we are having to address them at all.
Most Americans, it appears, are convinced that Joe Biden, at 81, is too old to run for another term as president. But how often do we worry that the Constitution, age 236, is too old to meet the pressing demands of the complex and dynamic world of the twenty-first century?
Many are concerned about Biden because they know that people generally do lose physical vigor and mental acuity at around his age. When do charters of government lose their resilience and relevance? Thomas Jefferson once suggested that the Constitution should be replaced — not just amended, but redrafted — in every generation. Few political thinkers have taken him seriously, but maybe he had a point.
Louis Michael Seidman, a constitutional scholar at Georgetown law school, floated this argument in his provocative 2012 book, On Constitutional Disobedience:
When the framers did their work, America was a small, preindustrial society huddled along the eastern seaboard. A large portion of the country’s economy depended upon slave labor. Travel was arduous and treacherous. Communication beyond one’s immediate environment took weeks or months. The framers knew nothing of nuclear weapons, mass production, multiculturalism, cell phones, professional sports, modern birth control, or global warming.
… It is impossible to imagine what they would have thought of women’s liberation, evolution, gay marriage, psychoanalysis, reality television, globalization, or the war on terror. …The sheer oddity of making modern decisions based upon an old and archaic text ought to give constitutionalists pause. They insist that we follow the commands of people who knew nothing of our problems and have nothing to do with us…
A rebuttal to this argument is that the Constitution was never intended to prescribe specific remedies for all possible challenges to the republic; it is a set of foundational principles that can be interpreted and applied as needed. Liberal scholars hold up the ideal of a “living” Constitution that evolves with the times. Moreover, the document is subject to amendment and has, in fact, been revised in significant ways over the years.
However, the ongoing dysfunction and paralysis of our politics would suggest that this understanding is inadequate. Our eighteenth century charter has tended to lend itself to reactionary interpretations just as readily, if not more so, as to progressive ones — Justice Antonin Scalia, for one, explicitly preferred the Constitution to be “dead” rather than living — and amendments, as we know, are hugely difficult to enact. We are in many ways shackled by the requirements of “an old and archaic text.”
Those who revere the Constitution “insist that we follow the commands of people who knew nothing of our problems and have nothing to do with us…” [Seidman]
Here are some specific ways in which the intentions and expectations of the Constitution’s framers have become obsolete:
1. To the framers, a republican form of government was appropriate only for “virtuous” citizens — those who were willing to subordinate their personal interests to the common good. Such virtue needed to be cultivated through education and social norms, and without it, they believed, the citizenry would be no more than a grasping and contentious rabble — a pretty good description of the American public today. A republic cannot thrive in a society that worships unlimited individualism. Franklin hedged his answer because he knew how difficult it is to cultivate a virtuous society.
2. Along these lines, the founders of the American republic abhorred partisan politics. They knew that society naturally divides into competing factions on various issues, but warned that reifying these differences into the institutional form of political parties would corrupt efforts to achieve a common good. The Constitution was written for a society without political parties. This expectation became obsolete within a decade of the founding.
3. One consequence of partisanship is the breakdown of the separation of powers. The three branches of government were meant to serve as checks on each other’s power and corruption. But when party loyalty prevails over fidelity to constitutional norms, the path is easier for demagoguery and autocracy. The Senate as the framers intended it would have completed the impeachment of Mr. Trump, to take an obvious example. But that model is broken.
4. The sheer complexity of the modern world, implied in Seidman’s catalog of ongoing social evolution, requires a much more nimble and sophisticated set of principles than what could be imagined in 1787. The Second Amendment, for example, was written in a world of muskets and responsible citizen militias, not assault weapons and street gangs. Technology, globalization, populism, demographic changes such as immigration and longer life expectancy have shaped a very different world from what the founders knew.
5. Mass media, the internet and (anti)social media have supercharged the flow of information, misinformation and propaganda beyond anything the founders could have imagined. They rested republican government on not only a virtuous citizenry, but also a deliberative one. They had their share of passionate and often vitriolic arguments, but these were conducted at a more digestible pace and were somewhat moderated by professional gatekeepers (editors and publishers). They would be horrified by the quality of political discourse today, and even more so by the insidious influence of Russian and other trolls spreading falsehoods and mistrust.
Recognizing these realities, what are we supposed to do? I don’t think there are any easy answers.
To adopt Jefferson’s suggestion and call a modern convention to draft a new constitution seems wildly impractical at this point. Passing a cluster of substantial amendments, such as outlawing corporate personhood, abolishing the electoral college or setting term limits on Supreme Court justices, might help our ancient Constitution adapt to modern realities, but probably won’t be sufficient, and getting such amendments approved in this polarized age feels pretty much impossible.
Is it time, then, to accept that the American experiment has run its course, and to somehow facilitate a peaceful process of dissolution into several smaller entities, each reflecting the cultural and political qualities of their disparate regions? This is such a radical course to take, it is still largely unthinkable. Yet it becomes a bit more plausible every day and there may be a tipping point approaching.
Or maybe we just keep muddling through, accepting that governance in the modern world is necessarily messy, ugly, and more (under Trump, say) or less dysfunctional, just like most elements of modern society. The U.S. is obviously not the only nation undergoing a meltdown! We cannot reverse extreme individualism, runaway technology, demagogic partisanship, globalization or other defining features of modernity. We just need to live with them and adapt as well as we can, accepting too that modernity must eventually — maybe soon — burn itself out in civilizational collapse.
Damn, I don’t like any of these options!
I want to believe that through a massive and determined program of civic education, we can bring about a rebirth of republican virtue, a commitment to a higher good than our individual, consumerist desires. I come back, as I always do, to the underlying worldview of our culture and ask whether we might be able to shift it — not all the way back to eighteenth century thinking, but to something more reasonable and civically responsible than what we have now. Is that even remotely possible?
At the very least, by understanding how radically far we have strayed from the worldview that gave rise to our republic, we can be less shocked at its dramatic decline, maybe better prepared to work for the least obnoxious alternative. It feels very strange, and decidedly heretical, to admit that our republic may be on its last legs. But I don’t see how to entirely dismiss the possibility.
