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Saturday, 4 February 2012
Re-evaluating the U.S. Constitution

There is perhaps no other document in the history of American politics that is more hotly contested than the U.S. Constitution. For centuries historians and pundits alike have argued over the Founder’s intent and some have even questioned the Constitution’s validity in modern society.

Each election season candidates on both sides of the political spectrum refer to the Constitution in support of their platforms while the voting public, whose vast majority has never even read the document, are led to believe that it contains a timeless wisdom that is essential to maintaining a functioning democratic republic. Unfortunately, the term ‘dysfunctional’ seems more appropriate when describing American politics today.

Some politicians, mainly those on ‘the right,’ claim that in order for the nation to return to any level of prominence, an unwavering allegiance to the guiding principles of the Constitution is absolutely necessary. The Tea Party movement in particular maintains this stance. Over on ‘the left’ there is a more liberal, progressive portion who does not accept the inherent premise that all of the country’s problems can be remedied by simply returning to political philosophies from 1787. They call for reform in order to meet the ever-changing demands of today’s world. Perhaps the answer lies somewhere in between?

There is a trend among those who have studied both the origins of the U.S. Constitution and the resulting course of American history which proposes that the system put in place by the Founders was never really as ingenious as we were led to believe, nor was it an unquestionable and infallible way of governance. In other words, American politics has been dysfunctional from the drafting of the Constitution. Some critics cite the insincerity of the Founder's pledge for independence, while others contend that the two-party system's failures of today can be traced back to the limitations that were established by our very first government.

In retrospect the Constitution's preamble of "We the People" does seems quite absurd given the time period it was written when women and minorities had no civil rights whatsoever. We tend to forget that America was originally established by wealthy white men, for wealthy white men. They should be rightfully credited for gaining independence for the country, but not for its citizens. Therefore, the liberties and freedoms that we enjoy today came as the result of great struggles and sacrifices that were made by those who came after the Founders.

Progressive historians are not the only ones who have taken a more critical stance on the origins of the U.S. Constitution. There have been some highly-respected political figures who were gutsy enough to acknowledge the Constitution’s flaws and antiquated principles. One of the most noteworthy of these was Thurgood Marshall who gave a highly controversial speech that was critical of the Founding Fathers and the U.S. Constitution. Marshall was one of the few voices pointing out that the original Constitution required numerous amendments and came to a crisis that required a Civil War to solve.

In an era of obedient flag waving and patriotic rhetoric, Marshall’s comments were both disruptive and thought-provoking. They still are today. On May 6, 1987, Marshall presented his bicentennial speech at The Annual Seminar of the San Francisco Patent and Trademark Law Association. (Read entire speech here). Two main points in that speech outlined the popular misconceptions over the document:

Like many anniversary celebrations, the plan for 1987 takes particular events and holds them up as the source of all the very best that has followed. Patriotic feelings will surely swell, prompting proud proclamations of the wisdom, foresight, and sense of justice shared by the Framers and reflected in a written document now yellowed with age. This is unfortunate, not the patriotism itself, but the tendency for the celebration to oversimplify, and overlook the many other events that have been instrumental to our achievements as a nation. The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the “more perfect Union” it is said we now enjoy.

I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite “The Constitution,” they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago…

…The men who gathered in Philadelphia in 1787 could not have envisioned these changes. They could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendent of an African slave. We the People” no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of “liberty,” “justice,” and “equality,” and who strived to better them.

And so we must be careful, when focusing on the events which took place in Philadelphia two centuries ago, that we not overlook the momentous events which followed, and thereby lose our proper sense of perspective. Otherwise, the odds are that for many Americans the bicentennial celebration will be little more than a blind pilgrimage to the shrine of the original document now stored in a vault in the National Archives. If we seek, instead, a sensitive understanding of the Constitution’s inherent defects, and its promising evolution through 200 years of history, the celebration of the “Miracle at Philadelphia” will, in my view, be a far more meaningful and humbling experience. We will see that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making, and a life embodying much good fortune that was not.

I could not agree more.

Posted by ny5/pinstripepress at 4:09 PM EST
Updated: Wednesday, 8 February 2012 11:16 AM EST
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