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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:
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.
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.
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.
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.