Is The Constitution Obsolete?


If you write a column called “In the News” long enough, some of your subjects eventually begin to catch up with one another. This space recently (November 1995) was occupied with the past history of the struggle for the item veto, and behold, in April 1996 it ended in victory for the veto’s advocates. If the law giving Presidents the right to selectively kill individual appropriations is sustained against any Court challenge, it will mark an important constitutional change that shifts an allotment of budgetary power from Congress to the Executive. Yet it will not demand the complex process of formal amendment.

Presumably that should please Daniel Lazare, whose recent book The Frozen Republic: How the Constitution Is Paralyzing Democracy argues that the venerated eighteenth-century charter needs to be overhauled or even scrapped because it blocks the way to any modernization of American government that will give “the people” power to cope with twenty-first-century problems. Lazare sees us as complacent in the face of gridlock because of our blind faith in the Constitution. Well! Only about a year ago [May/June 1995] another of these columns dealt with a volume by Richard B. Bernstein and Jerome Agel, Amending America , whose subtitle suggested that the adoration was only skin-deep. It was: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? Plainly the two books have a very different take on how Americans really feel about the 1787 compact. Who is in the right?

If I come down on the side of Bernstein-Agel, it is not because—confession of interest—I was once a colleague of Bernstein, nor is it from a lack of sympathy with Lazare’s social-democratic orientation. But in making his case that Constitution worship embeds the feet of democracy in cement just when it needs to take giant steps, I think he has seriously misread the facts.

To begin with, he holds that the original sin was in the Constitutional Convention itself. He believes (without citing much of the record in support) that the members were bewitched by the puritanical views of an English “Country” party that automatically distrusted central government, worshiped traditional Elizabethan institutions dominated by local interests, and “feared modernization [and] progress.” So they put together a system looking back to a golden day when power was divided and traditional law was in the saddle rather than fallible majorities—a system that “rather than focusing energy ... would disperse, muffle and absorb it.”

Oh? If that was all the framers wanted, they could have left ineffectual Articles of Confederation in place. In fact their main purpose was to “focus” power in a national government strong enough to survive the jealousies of the wrangling states. Lazare soon gets to his real indictment. The framers, who “represented the American economic and social elite,” disliked democracy but were caught in a bind: How could they maintain order and authority while giving the people power to pursue the general interest of the United States? Their answer was to compromise. In the Preamble they gave an implied but sweeping mandate to “the People of the United States” to “form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, [and] promote the general Welfare”—and then they made it very hard to do those things quickly or without long arguments and more compromises.