I’ve made a set of suggestions as to changing the US Constitution as one means of dealing with some of the structural problems with our system of government, but they don’t deal with these more fundamental concerns.
In an important sense, they can’t.
Amid all the talk about the end of Roe, court-packing, filibusters, and impeachments which have dominated our Constitutional discourse over the past several years, precious little attention has been paid to amending our constitution (i.e., intentionally lower-case).
The documentary version of a Constitution (capitalized) (which virtually every country has in the 21C) is a reflection of the power structure of its society. Of course, there’s always some distance between what a society says it is all about (e.g., democracy, equality, rule of law, true religion, etc.) and the actual way things work. Sometimes, that’s a good thing; sometimes, it presents problems: aspirations are striven towards or, in falling short, cause disappointment. In theory, the two should work into alignment over time.
A (lower-case) constitution, on the other hand, while it, too, follows from that underlying power structure, is a logical predicate to the formal document. It may be simpler to refer to the former as a societal constitution and the latter as a governmental Constitution.
In the case of many “failed states,” the societal constitution never coalesced or it has since unraveled. In the case of heretofore solidly democratic states which seem under siege, such as the US, the societal constitution seems to be fraying. And, naturally, there is only a limited amount of cohesive power in the written document if the ground underneath it is starting to shift and crack. Still, as the current debates in Israel demonstrate, without the (relative) clarity and stability of a written document, there is a chink in the armor of democracy which can be exploited by temporary majorities.
Sociologists and political scientists talk about two views of what a Constitution is (a “contractual” model and a “consensual” model), but I think they are actually talking about two different things. Some have gotten taken in by the relative stability of democratic societies in the later 20C and gotten overattached to a legalistic/formalistic vision in which the society is its Constitution. Putting the cart before the horse, they think concepts like law apply prior to the consensus/cohesion of society; but you can’t have a sense of social norms to be enforced by the institutional expression of society (i.e. a “government” or the “state”) without having a more-or-less understanding that there is a “We the People” whose agreement/consensus/inertia is the basis of the norms which eventually become laws.
In contrast to places where guns are still prevalent (e.g., Iraq, Afghanistan, Congo, Syria, Myanmar) or places whose authoritarian superstructure prevents the flow of ideas and the possibility of uncertain outcomes (e.g., China, Russia, Egypt, Cuba, Iran), most places (including the US) merely have to contend with sclerosis, inertia, and garden-variety corruption. Those societies (us!) have the possibility of expressing themselves through a set of norms (and eventually laws); both a societal consensus and a written Constitution.
So what should this document comprise?
1) A statement of purpose/goals/aspirations (e.g. Preamble)
2) The delineation of the roles and status of individuals and groups (e.g. rights/responsibilities)
3) The structure of institutions empowered to act on behalf of the people (or other basis of the societal power structure) in order to achieve the first-noted principles and purposes
4) A means of updating/revising the document.
Some while back, Jack Balkin, a law professor at Yale, wrote a piece which argued that the “real” constitution of the US was the Declaration of Independence of 1776, since that was the first and fullest expression of what we were doing together as a coherent society. From this perspective, he argued, the Constitution of 1787 was merely an engineering implementation guide for a government to get us to the aims Jefferson had espoused 11 years earlier. There’s a lot to this framing, but from a historical perspective, the practice of constitutionalism has moved on and we can load both aspects now into a single document.
All this is fine as a snapshot in time, but a Constitution (and certainly a constitution) is more than this: it’s a process as well as a product. In an age of democratic constitution-making the participation of the people in the process of designing and debating their expression of aspirations and mechanisms not only validates and legitimizes the result, but, in an important sense, itself also constitutes the society (and its political expression: the state).
In the US, we haven’t had such a process since the Reconstruction amendments (XIII, XIV & XV) in the aftermath of the Civil War (if even then), it is no wonder that we have become estranged from the document and, even more importantly, from the societal cohesion that comes with it. The last time there was a serious, widespread debate on a constitutional issue in this country was the ERA in the 1970s.
It's no wonder, therefore, that we have become estranged from our constitution and our Constitution. Instead, it has turned into scripture, to be pored over and parsed like a Talmudic study group or the medieval Scholastics of the Catholic Church. We devote the brilliance and energy of some of our sharpest thinkers to the (relatively) sterile process of determining the precise number of angels who can dance on the head of James Madison’s pin. We contort the language written almost 250 years ago to apply to modern society, technology, and international relations. We’re not thinking about what would work for us…now.
Moreover, we’re not engaging our society in trying to figure this out. We’re so wrapped up in the threat of the Trumpian “Proud Boys” and the foes of women’s right to choose that we seem afraid to take control of our constitutional future.
In the end, a constitution is the expression of a society as to what it wants to become and how it wants to get there. But, it’s not a passive process. We can’t wait for Moses to come down from the mountain top with two tablets. We have to wrest our future from the hands of our increasingly ancient past and, in the process, reconstruct who “We the People” is in the 21C