No, the biggest problem in the Constitution is Article V.
What, pray tell, is Article V? I’m so glad you asked.
It’s kind of a lonely, little used part of the Constitution, rarely discussed at the Supreme Court or even the NY Times. It’s the part of the Constitution that provides for amendments, specifically authorizing Congress or a convention convened at the request of 2/3 of the states to propose amendments, which would then be ratified by ? of the states. (It also temporarily barred amendments banning the slave trade (which expired in 1808) and permanently barred amendments allowing proportional representation in the Senate (which is why Delaware has as many Senators as Texas)).
Yet, here we are, with an uninterrupted government stretching back almost a quarter of a millennium. During that time we have faced invasion and rebellion, fought in many wars (mostly on someone else’s territory), and expanded across North America and parts of the Pacific and Caribbean. However, with the exception of a batch of amendments immediately following initial ratification and a few more adopted in the aftermath of the Civil War, our Constitution has only been tweaked around the edges, and then only about a dozen times. It's not for want of trying. About 12,000 amendments have been proposed over the years since those proposed in the original Bill of Rights in 1789.
Meanwhile, the world in general (and our country as much as any) has moved from agriculture to manufacturing to services and information, incorporated new ways of seeing the world through science and rationalism, built great cities, grown dramatically in population, proclaimed the benefits of democracy, expanded expectations of government, and moved to lifestyle that is far faster-paced and a standard of living that is far higher than was ever imagined in the eighteenth century. Our ideas of who “We the People” are have changed, so too our notions of justice and our relationship to the rest of the world.
The problem is not that the Constitution hasn’t changed. It has been interpreted thousands of times by the federal courts. There are all sorts of things that aren’t mentioned in the original text or even imagined by the authors (e.g., in the original the President is designated as the Commander-in-Chief of the Army and the Navy, but what about the Air Force or the Space Force). But judicial interpretations, often contested, usually just fudge things over or nudge the lines a bit.
The first level of the problem is that Article V is, effectively, the only way to adapt the Constitution to a changing world. Even if our Congress weren’t sclerotic and dysfunctional, amending the original document is pretty darn difficult. The method of a state-convened convention has never been implemented (although much bandied-about). In the last 150 years, Congress has often taken decades to decide whether to propose a change and an amendment has only been successfully pushed by popular demand three times: women’s suffrage, Prohibition, and the repeal of Prohibition. The Equal Rights [for women] Amendment, famously proposed in the 1970s languished for years without getting enough state legislative ratification.
The second level of the problem is that this has left the Courts as the only effective means of keeping the law current. It’s not democratic and leaving the role of setting the basic parameters of our society and government to a bunch of old white guys (almost exclusively until twenty years ago) is not a recipe for keeping up with a changing society, much less imagination or innovation. In addition, as the doctrine of judicial review has evolved (since the Marbury case in 1803), the Constitution has taken on a far more legal than political tinge. It has become an almost Scriptural document; increasingly distant from a connection with the people.
This has led to the third level of the problem: an important part of the impoverishment of our civic culture. (In this context, the hacks in Congress are merely another symptom.) A constitution is supposed to be an expression of our beliefs, aspirations, and political judgments. The further it seems from the lives of ordinary folks, the less reason they have to engage in the political process. In other words, it doesn’t feel like it is ours any more. It belongs more to Madison and Hamilton. We don’t feel like we “own” it; instead, we’re its passive subjects. Even our current political debates at a national level are mostly about the practical, the technical, and the budgetary in such bureaucratic detail as to overwhelm any normal citizen. A constitution is, by nature, a document which wrestles with issues of principle, where the trade-offs are clearer and the technocrats have little sway. Biden’s “Build Back Better” bill runs to over 373,000 words. The original 1787 document was less than 4,500.
Given the parlous state of the American body politic these days, there are many who would shy away from a political debate on the state of the nation. I understand their fear. I also look at our current civic predicament as much as a result of lack of serious political discussion as a deterrent to re-engagement.
There are a variety of ways in which the amendment process could be streamlined; but, of course, doing so would require an amendment. At the least, we should start conversations on the nature of change we would like to see. Let’s stir up the debate about the shape of our core institutions. Those of a rational/liberal/progressive bent (all in the old sense of those terms) should relish a forward-looking discussion.
We’re not going to get where we want, without such an undertaking. And, even if Congress and the state legislatures cannot be cajoled into implementation, we can always start afresh. After all, that’s what they did in Philadelphia in 1787.