That Darned Constitution of Ours

That Darned Constitution of Ours

Posted on February 9th, 2011 by Jeff Scheuer

There has been a lot of talk lately, mostly on the political right, about the U.S. Constitution. You may recall that the entire document was read in Congress a few weeks ago, a few sentences per member, like schoolchildren at an assembly proving their patriotism. It seems the Constitution is especially popular these days with conservatives and Tea Partiers. I’m not sure why.

The Tea Partiers seem to claim we have strayed from the document, and that returning to it – or to an originalist reading of it – would be both patriotic and to their clear advantage. All we have to do is adhere to our founding document and everyone on the right will feel happy and redeemed.

As Sarah Palin said recently at the Reagan Ranch Center, Ronald Reagan “refused to sit down and be silent as our liberties were eroded by an out-of-control centralized government that over-taxed and overreached in utter disregard of constitutional limits.”

The only problem with this idea is that – like many ideas that gain wide currency in our political and media leadership class – it’s utter nonsense.

I’m not a Constitutional lawyer, and neither are most of the folks making all the noise. But I have perused the document once or twice; and what I find interesting about it is that, with a few notable exceptions, it favors no political ideology at all. It is a blueprint for democratic procedure: a design for the rigging of the ship of state, not a rudder forcing it in this or that direction.

And that’s exactly what the Framers meant it to be: a blueprint for a process, not a mandate of particular outcomes, such as don’t drink, don’t have abortions, don’t chew gum, don’t run up a huge deficit, don’t pay taxes, and so forth. (A sure sign of any truly extreme and irresponsible political act is the attempt by its proponents to enshrine it in the Constitution.)

Our founding document establishes rules for democratic conversation among conflicting ideals, not the superiority of some ideals over others. It is equally compatible with a wide range of democratic political economies – from (in theory) a rampant free market to democratic socialism. It merely asserts our political equality – not how much economic equality we should happen to choose, as political equals, which is the main thing democracies are designed to decide and continually re-decide.

We may differ about original intent, or whether the strict construction of what some smart guys thought up in the 18^th century makes more sense than interpreting their ideas in the context of the 21^st. I don’t think most of the Framers would have wanted us, two centuries hence, to be slavishly trying to intuit their meanings; but here as elsewhere there is room for disagreement based on our conflicting values, interests, or temperaments.

The Constitution doesn’t prejudge or predict on what heading the ship of state should sail. It doesn’t even mention political parties.What the Framers gave us was a fairly flexible system for resolving our differences and adjusting the social contract. So for Tea Partiers or others to talk as if they somehow “own” the Constitution, or that a return to some purer adherence to it would validate their views, is bunk.

Except… for the exceptions I mentioned earlier. And what’s interesting is that each of these exceptions – is to the advantage of the right. I can think of three such elements, one of which has been eradicated at an enormous cost, and two of which persist.

The Constitutional bias that was eventually eradicated was the section of Article I Section 2.3, which tacitly acknowledges slavery. In fact, it rewards slavery – without the decency of naming it – in order to induce the Southern states to join the new union, in the infamous clause awarding electoral votes by counting “three-fifths of all other Persons,” i.e. slaves. So much for the Framers as moral giants.

That weighting of the Electoral College toward the South based on their slave population is among the darkest, most obnoxious corners of American legal history. And it’s right there in our Constitution. It was finally negated by Section 2 of the 14th Amendment.

So what are the surviving elements of the Constitution that favor the right? The most obvious is the apportionment of two Senators to each state (Article I, Section 3.1). This introduced a profound bias in favor of smaller states, which have proven to be more conservative ones – a bias both in the Senate itself as a deliberative body, and in the Electoral College, which partly reflects that apportionment.

Another bias against the left is the relegation of the District of Columbia to non-state status. Given the demography of that city, it’s lack of representation in Congress (although it does own 3 electoral votes) represents a clear unintended conservative bias. To add insult to injury, the 23^rd Amendment stipulates that the District shall be granted electors (electoral college votes) equal to those to which it would be entitled if it were a state, “but in no event more than the least populous state.” In other words, while treated as a state for the purposes of the Electoral College, it’s considered a tiny state regardless of its actual population.

Take that, D.C.!

Personally, I’d be in favor of affixing the District to Maryland, its natural geographic parent, if statehood is too much for our conservative friends to stomach. Alternatively, we might consider downgrading Texas to a “district” and giving it 3 electoral votes just like the nation’s capital, to even things out. But then, I’m no whiz at math.

In short, there are discernible structural biases in the Constitution against liberalism, but they were not necessarily intended as such. And two centuries of highly political Constitutional interpretation, by justices from across the political spectrum, doesn’t alter the fact that the “real” Constitution is not the property of any ideological group.

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Jeff Scheuer

Jeff Scheuer is a writer and critic based in New York. He is the author of two books about media and politics: The Big Picture: Why Democracies Need Journalistic Excellence (2007), and The Sound Bite Society: How Television Helps the Right and Hurts the Left (1999), named a Choice “Outstanding Academic Title.” Jeff is currently writing about critical thinking and the liberal arts.