Balkinization  

Thursday, August 09, 2012

Amending the American People

Mark Graber


During June and July, Slate published a series of essays proposing amendments to the Constitution of the United States.  Being a bit of a curmudgeon in my old age (as well as in my young age), I proposed more vital amendments were needed elsewhere.  Being interested in people who could actually follow directions, Slate decided the below did not quite fit the project.  Being a bit of a sadist, I thought to inflict these thoughts on Balkinization readers.
Constitutional orders are structured by a series of aspirations, a set of institutions designed to realize those aspirations, and a people who share the aspirations and can operate the institutions (I learned this from Stephen Elkin’s magnificent Reconstructing the Commercial Republic.  Constitutional crises occur when misfits develop between constitutional aspirations, constitutional institutions, and a constitutional people.  The people as a whole may reject religious freedom or electoral systems designed to secure virtuous leaders may foster polarization.
            Constitutional populists always assign the blame for constitutional failings to evil institutions which are thwarting the good American people from fully realizing their constitutional commitment to the “Blessings of Liberty.”   If we can just get rid of the Electoral College, eliminate state equality in the Senate, abandon life tenure for federal justices, and change the rules for constitutional amendment, my friend Sandy Levinson and others imply, gridlock would disappear, the American people would cherish their governing officials, and most other ills of contemporary American politics would be significantly alleviated. 
            This populist optimism fails to acknowledge that the cause of most contemporary constitution ills lie in the character of the American people rather than in American constitutional institutions.  Consider that one major party in the United States routinely runs candidates for public office, most notably the presidency, who deny basic scientific and social science findings.  Give me a billion dollar backer, and I thought I could make hay in the Republican primaries on a platform that questioned the Pythagorean Theorem (the theorem is un-American and no one in the academy permits any dissent from liberal right-triangle orthodoxy).  One does not have to be too skillful at “connecting the dots,” to quote my friend again, to realize that no commonly proposed constitutional amendment is responsive to a society many of whose members reject evolution and think that Mary and Ben’s thirty year marriage will somehow be affected if John and Tony are also allowed to be married. 
Those observations suggest that the American people should be amended before we amend the Constitution .  In this spirit, I propose the following:

  1. A constitutional democracy can be operated only by a people who accept such basic findings of science and social science as global warming is accelerating and that failing to tell teenagers about contraception does not decrease pregnancy.  Notwithstanding any other provision in the Constitution, therefore, I propose that the American people be hereby amended so that enough a sufficient number of citizens have understanding and respect for science and social science necessary to support a political class whose proposals are always consistent with basic science and social science findings.
  2. A contemporary constitutional democracy requires a strong middle and upper-middle class.  Many crises, most notable the bubble of 2008 can be traced directly to the behavior of persons whose primary motivation was to improve substantially their normal.  Luxurious lifestyle.  Nothwithstanding any other provision in the Constitution to the contrary, therefore, I propose that the American people be hereby amended so that members of the most politically influential class aspire only to middle or upper-middle class status.  Neither the political nor economic behavior of any member of an amended American family earning a regular income of over six-figures changes merely because government proposes or enacts a sing-digit percentage increase to their income tax.
  3. Constitutional democracies function best when citizens have substantial cross-cutting relationships or what Robert Putnam calls bridging capital.  Notwithstanding any other provision in the Constitution, therefore, the American people are hereby amendment so that all citizens have friends and associates who they recognize to be reasonable and morally decent individuals, even though they disagree with them on the fundamental political issues of the day.  Provided, all Americans are allowed one issue (abortion, aid to foreign countries, the designated hitter rule) in which they may deem all opponents to be either intellectual morons or moral cretins.
  4. In order to create and maintain constitutional citizens who are capable of operating constitutional institutions to achieve constitutional values, capital punishment is hereby abolished, except for university and college administrators who spend more attention on sports teams and promoting their institution as an engine for economic growth than they do on ensuring that students are becoming good democratic citizens.


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