Our Broken Constitution – The New Yorker

If there is a single point of consensus in this heated political moment, it’s that everyone loves the Constitution. “Conservative or liberal, we are all constitutionalists,” Barack Obama wrote, in “The Audacity of Hope.” Ted Cruz, the junior senator from Texas, who emerged as a principal antagonist of the President’s during the government shutdown, has often said much the same thing. The Founding Fathers, Cruz said, “fought and bled for freedom and then crafted the most miraculous political document ever conceived, our Constitution.”

These homages are more than rhetorical tropes. Most politicians consider the validity of the Constitution off limits as a subject for debate. The Constitution, and the structure of government that it established, provides the backdrop, but never the subject, for every controversy. Obama, who taught constitutional law for more than a decade at the University of Chicago Law School, wrote, “The outlines of Madison’s constitutional architecture are so familiar that even schoolchildren can recite them: not only rule of law and representative government, not just a bill of rights, but also the separation of the national government into three coequal branches, a bicameral Congress, and a concept of federalism that preserved authority in state governments, all of it designed to diffuse power, check factions, balance interests, and prevent tyranny by either the few or the many.”

It’s often noted that the United States is governed by the world’s oldest written constitution that is still in use. This is usually stated as praise, though most other products of the eighteenth century, like horse-borne travel and leech-based medical treatment, have been replaced by improved models. (Thomas Jefferson believed that any constitution should expire after nineteen years: “If it be enforced longer, it is an act of force and not of right.”)

Outside Washington, discontent with the founding document is bipartisan and widespread. In many ways, the contemporary debate reflects the framers’ arguments, more than two centuries ago. How insulated should elected officials be from the demands of the people? How should power be divided among the federal and the state governments? What rights of the individual must be protected against the claims of the government? The Constitution offers only contingent answers to these questions. Indeed, in recent years particularly, it’s become clear that politicians and voters, as well as judges, can play crucial roles in defining the contemporary meaning of the Constitution. The critics have the advantage of having seen the Constitution in action. On the left and the right, they are asking whether the pervasive dysfunction in Washington is in spite of the Constitution or because of it.

In 1987, Philadelphia hosted the national celebration of the two-hundredth anniversary of the signing of the Constitution. There were parades and an exhibit called “Miracle at Philadelphia.” To foster viewer participation, the exhibit culminated with two scrolls, each bearing a question: first, “Will you sign this Constitution?” And, second, “If you had been in Independence Hall on September 17, 1787, would you have endorsed this Constitution?” Sanford Levinson, a professor of law at the University of Texas at Austin, made his way through the exhibit and struggled with the decision of whether to add his name to the scrolls.

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