Hating on the U.S. Constitution is Fine, Except When It’s Not

Most efforts to change the U.S. Constitution are actually anti-democratic

Carrie Nation, a destructive and intolerant prohibitionist. (Late 1800s image long out of copyright from history.com)

It’s pretty popular to dunk on the Constitution these days. Why? Perhaps it sounds clever, or gets clicks. Maybe some reforms are even a good idea. But mostly these attacks are a power grab. Here’s how to tell if you should listen to critics of the Constitution, or reject their ideas.

The main test is if they are pro-democracy, or anti-democracy. It’s not an easy test, because many — even most — anti-democratic activists believe themselves to be pro-democratic. We’ve all internalized the value of democracy, but many of us have lost track of its meaning and essence, which leads people to undermine democracy even while they talk a good democratic game.

Consider doctrinaire religious extremists who completely fail to embody their own faith. They similarly believe they are doing the right thing even as they corrupt their own beautiful belief systems from the inside.

Democratic and undemocratic attacks on the Constitution

Many enthusiastic critics (or “reformers”) of the Constitution simply don’t like what many or most Americans think and do and want to stop them. These critics’ real impulse is for power and control, not constitutional democracy or long-term progress.

Jamelle Bouie, one of the least insightful people ever granted a national platform, recently wrote that the Constitution “inhibits lawmaking and slows down politics, making meaningful initiatives hard to undertake.” One assumes that he wants to use his party’s current slim majorities to ram through larger changes, despite widespread popular disapproval.

The truth is that we have a divided country — trying to grant sweeping powers to a narrowly-elected government will result in many millions of disenfranchised and disaffected voters rather than good laws or a stable legal framework. If it is “only” 49% of the population — or even 40% — this is still generally illegitimate. To make matters worse, every shift in power from Democratic to Republican in such an unstable system would have large, disruptive effects.

The desire to respect and protect everyone’s voice — even a political minority — distinguishes “good” Constitutional reforms from naked power grabs. True believers can’t tell the difference. They will always think their power grab is clearly for the good of the country and as such is not about power. Those on the losing end of their shenanigans will of course feel differently. We need to watch for their attacks on the Constitution and determine if they are broadly-supported reforms setting us up for stability and prosperity for the next 250 years, or simply an effort to address some pet political agenda that they can’t ram through another way.

Consider our biggest, acknowledged failure in constitutional amendment — Prohibition. A relatively small group of strident prohibitionists were able to impose their utopian ideal on millions of people who like to drink. The minority organized well and captured a relatively large majority of politicians, but with an eye toward anti-democratic imposition of control rather than democratic empowerment of all people. We all know how this worked out — widespread disregard for a law perceived as illegitimate, erosion of trust in law generally, and a blossoming (and funding) of organized crime. Also NASCAR.

Some critiques of the Constitution

This is not to say the Constitution is perfect. There are shortcomings even though it’s still usually best to leave it alone. Here are some real and perceived shortcomings.

• Small states have too much power (real). Without a guarantee of autonomy, the smaller states would not have signed on in 1787, so smaller (less-populous) states get two votes in the Senate and three in the Electoral College no matter what. This means the President is often elected with a minority of the nationwide popular vote and that anti-rural policies can easily be blocked despite being widely popular overall.
• It’s old and hard to change (real). Despite amendments, many centuries-old provisions remain, and some may be outdated in a modern society. We now live in closer proximity, with different technology, and generally with different needs. The limited ability to impose national policies (such as a requirement for health insurance) and the right to bear firearms are unpopular with many. There is an amendment process with a very high bar of national agreement required to make a change.
• Political speech is protected for corporations and for the wealthy (real). The Supreme Court has held that corporations are people for the purposes of speech and that contributing money to a cause is a form of protected speech. If corporations were really people, they would be sociopaths with no human conscience whatsoever, and their influence is often destructive.
• Initially, the Constitution enshrined racism and patriarchy (irrelevant). I find this particularly stupid, since these clauses were changed by amendment decades ago. This critique assumes old laws are like some kind of toxin, where even after laws are changed (by amendment) somehow the current Constitution is corrupted or affected by the original.
• The Constitution has a strong clause allowing freedoms of speech and religion (invalid). Some people think we would be better off limiting speech to the forms they approve of, or suppressing religion. These are the “right not to be offended” crowd, along with those who feel religion is inherently violent or mean-spirited.

Telling them apart — what is actually democratic in the long term?

Here are a few criteria to consider when thinking about the Constitution and evaluating the intentions of a putative “reformer:”

• Do their reforms maintain the idea that we move slowly where society is divided but quickly where we are united?
• Do their reforms support the mechanisms of democracy? Debate, freedom of speech and dissent, checks and balances on power?
• If you scratch the surface of their constitutional argument, do you find a pet issue or hobby horse such as: abortion rights, authoritarianism, gun rights, anti-racism, Christian nationalism — or another specific agenda?
• Is it really necessary? The Constitution is a powerful protection against majoritarian and political excess because we have a centuries-old political norm of respecting it. Constant tweaking will make the Constitution yet another political football. We see this normative respect for the Constitution in our institutions, politicians, and judges and among regular Americans. Preserving the Constitution in all but the most widely accepted cases preserves a critical, protective bulwark against tyranny and excess.

Political fights come and go. We have lived through divisive times before, and we have survived and even prospered. While we do change the Constitution from time to time, and we should, we generally amend it to increase democracy and improve our long-term prospects, not to advance a specific political goal. Granting Black and female people the right to vote was brilliant. Prohibiting alcohol to satisfy prudish Christians not so much. We need to be able to tell the difference.