In December, 1783, the signed confirmation of British recognition of American independence arrived in Philadelphia to great excitement. A month later, it was ratified by the Continental Congress, acting under the Articles of Confederation. The Articles, which set the framework for joint action by the thirteen colonies had been in place for three years, but many were already unhappy with how it worked.
By 1786, that unhappiness had increased and delegates gathered in Annapolis to see if they could propose some improvements, but only five states showed up and most states had authorized their delegates to discuss only a limited range of issues, so the Annapolis group advised that a more extensive set of reforms needed to be considered. The Continental Congress agreed that a revision was appropriate and delegates from twelve states arrived in the Spring of 1787 to discuss those changes.
What (we call) the Constitutional Convention proposed instead was a wholesale rewrite of the relationship between the States, including a detailed structure for a new national government. It was far beyond their mandate, but they were able to persuade Congress and the country that more radical action was necessary. Even back then, the concept of the rule of law was part of British political culture and, from that perspective, the route to the Constitution for a large part of the former British North America was problematic, not to say (literally) revolutionary.
Immediately after the new Constitution was ratified, the Bill of Rights was adopted and we have been living under this arrangement (with only a few significant formal amendments) ever since. Hundreds of proposals for updating have died somewhere in the multi-stage process of amendment established under Article V. Along the way, the (unelected) Supreme Court has (usually to much controversy) interpreted the document in novel ways. But, that’s it.
While the great powers of Europe and the ancient cultures of Japan and China can claim greater duration, the US has the oldest continuous Constitutional system of any country in the world. Perhaps in competition for their venerability, we have, for a long time, been proud of our longevity as a nation and the stability of our system of government.
That’s no longer the case, or, stated differently, our society is stuck with a governing structure that is archaic, virtually static, and unfit for purpose in the 21C.
It’s as if we were trying to run an AI system on MS-DOS (although, I guess, early AI attempts were exactly that!).
From another perspective, when the Constitution was adopted there were less than four million people in the US, of whom (excluding women, slaves, and children) there were well under one million eligible voters. (In fact, only 28,000 people actually voted for George Washington for President a year later.) So, a group roughly the size of Connecticut or Utah wrote the rules under which we still live. By the same token, our current total population of about 1/3 billion represents about 60% of all the people who have ever lived in these United States. The historical tail is wagging the contemporary dog.
It's an interesting question of culture, history, (and anthropology?) as to why we subject ourselves to their rules and practices. The point goes far beyond the constitutional context framed here. Culture is, pretty much by definition, the product of history; after all, we don’t know anything else. It can also be seen as a deal between the past, the present, and the future. We (in the present) accept the judgment of our predecessors as to how we should run ourselves and our society. We also represent to our progeny that how we are doing so is the best way for those to come to run themselves and their society; even knowing—in each case—that changes have been and will be made. No group at any particular point has the time/bandwidth to rewrite everything; so, most change is sporadic and incidental (however chaotic it might seem at the time).
In her recent history of the Constitutional amendment process “We the People,” Jill Lepore reiterates that we are out of practice in terms of Constitutional change. The last time we made more than minor tweaks in the document through the formal amendment process was well over a hundred years ago. Since then, the substance of our constitutional order has changed solely through de facto practice and Supreme Court “interpretations.” That each of these modes is ephemeral and reversible has become only too clear in the last couple of years. Lepore points out that progressive forces despaired of the (extremely difficult) formal amendment process and pursued socially-necessary changes through these other mechanisms. This includes both the considerable expansion of the scope of governmental activities (regulatory and social welfare), as well as civil rights for a range of groups. Now, the sauce for the goose is being served for the gander and the progressive goose is (sorry to mix befowled metaphors) cooked.
Even a dramatic political reversal and overruling of several recent Court decisions will only get us back to where we were twenty-five years ago. They won’t solve the underlying structural problems or reflect a 21C society.
A few weeks after Washington was inaugurated, a group of newly chosen representatives gathered outside Paris. Within just a few months, they launched what we call the French Revolution and, over the course of a few years, overturned the local variant of the long-established political and cultural society of Europe: the Ancien Regime. Images of the trés fabulique lives of Marie Antoinette et al. make it easy to consign this concept to history (even if the practice of “royal” elites dominating and exploiting a country continued well into the 20C). It would seem to have no resonance in our modern republican mentalité, but the Constitution is our Ancien Regime. By now, we are so deeply imbued with concepts like the “rule of law” that it’s hard to imagine that anything truly disruptive or radical could happen here (January 6 notwithstanding). Incumbents in such power structures have denied the possibility of change up to (sometimes past) the last minute, but it comes, sometimes suddenly and violently, sometimes in other painful stories. And, as the Stuarts, Bourbons, Romanovs, Pahlevis, and others can attest; no one knows what will emerge.
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