Conservatives claim to be more faithful to the Constitution than liberals based on their self-described strict construction of it and on what its words actually mean. Liberals in contrast have in varying degrees a more flexible view of the text as available to interpretations that serve progressive interests in changing historical times. Liberal legal theorists may be divided on the question of whether the constitution is “living” or not, but they agree that the Constitution must serve the needs of those who are living. What this distinction between liberals and conservatives obscures is the unstrict, flexible, unacknowledged conservative interpretations that serve their interests, for instance, the Second Amendment. The absolute right of the individual to bear arms without regulation is not inscribed in it. The Framers had militias in mind. My own political sympathies are with the liberals, but the conservatives have a case. In many respects they are closer to what the Framers intended as we might expect from a document composed centuries ago, producing clauses that have proved deplorable. For the most part, the conservative bias is in the main body of the Constitution and the liberal or progressive in The Bill of Rights. The great achievement of the main body is the division of the government into three branches and their functioning as checks and balances, a construction that both sides can embrace despite differences in how they see checks and balances. Slavery and the definition of the slave as 3/5ths of a person are deplorable legacies of the Constitution erased in part at least by The Bill of Rights. The Electoral College is another unfortunate legacy as is the composition of the Senate in which every state is represented by two senators regardless of the size of the state.
The Electoral College was invented by the Founding fathers to resist the dominance of the large states and in effect what Tocqueville came to call the tyranny of the majority. It was put in place as part of an effort to secure the power of the elites against the populace (populism). The enfranchisement of African Americans and women inscribed in The Bill of Rights was the result of struggles over decades. Elections that preceded them were the exercise of white men. One would think that with a fully enfranchised electorate the majority would come to reflect majority rule. But this has not been the case in recent elections. The winners of two presidential elections have won the Electoral College and lost the popular vote. The consequence of the last presidential election is not what the Founders and Framers intended, the rule of a faux populist minority and the prospect of its repeating itself in the future. The election of Trump has not been a populist victory in the economic sense but rather in the cultural sense, a victory in Marx’s phrase, of “the idiocy of rural life”. The unfortunate triumph of the minority has been compounded by the man who emerged triumphant, a know nothing character with an authoritarian temperament. We are ruled by an administration ignorant, greedy and cruel, deliberately disruptive in its actions without any socially constructive vision and utterly contemptuous of the concerns and views of the majority it defeated enabled, as it was, by the Constitution. Trump is a minority president solely devoted to his base, the majority of which, according to a recent poll, view him as greater than Lincoln, who declared that a house divided against itself cannot stand, a house that Trump has divided and now occupies. In a genuinely democratic election, Trump would be defeated in a popular landslide.
The Declaration of Independence may have been a revolutionary document with a democratic bias in its affirmation of equality, but the main body of the Constitution codified existing class and racial relations such as slavery and male supremacy, relations at odds with modern American values. This is not to deny its great achievement in creating a republic. Note, I don’t say democracy. The seeds of democracy are in The Bill pf Rights, the beginnings of which are the work of the Founders. Both Hamilton {a Framer} and Jefferson {a Founder, not a Framer}, opposed to each other in other respects knew that no Constitution can or should survive unchanged in changing historical times. Jefferson: “Can one generation bind another, and all others in succession forever, I think not… A generation may bind itself so long as its majority is in place, holds all the rights and powers their predecessors once held and may change their laws and institutions to suit themselves.” And here is Clint Rossiter, a distinguished historian of the period, on Hamilton. “From time to time he could not resist the temptation so natural to the insider, to buttress constitutional argument with a knowing reference to the ‘intent’ of the Framers. For the most part, however, he felt that each generation should shape the clauses of the constitution to its own needs rather than try to read the thoughts of men who had passed from the scene–and whose thoughts in any case had been tentative and ill formed about many crucial words in the charter.” The Framers may have set too high a bar for making necessary change, but they were not like the current breed of conservatives in thrall to an unchanging past. (Two thirds of the Senate and of The House of Representatives propose and three quarters of the state legislatures are required to approve a constitutionaL amendment.)
Conservatives invoke the Founders as if the affinity between them is self-evident and as if their projection into our time would find them on the conservative side on most, if not all issues. The Founders’ appreciation of historical change, however, suggests otherwise; they too would be responsive to amending it when necessary. It is probable that Jefferson and certainly Hamilton would have supported the liberationist amendments that were enacted after the Civil War had they been alive then. They would not have endorsed the idea of a living constitution, but neither of a dead one, Antonin Scalia’s term, as evidenced in their instituting the right to amend. Invoking the Constitution now, for the most part, has become a practice of liberals when they perceive criminal violations of it and of conservatives when they need a weapon in defense against progressive change. (Scalia, perhaps to the surprise of many who have not followed him closely, does not invoke the intentions of the Framers, knowing as he does one would surmise that the framers were not all of the same mind or certain in their minds or knowing their openness to a changing constitution. He insisted that the words of the charter were the final authority, evidently suppressing the literary education he must have received in university concerning the possible multiple ways in which one can interpret a text without distorting it.)
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If both Democrats and Republicans, liberals and conservatives believe in democracy, then support for the elimination of the Electoral College follows or failing elimination a reform that would make it impossible for a candidate for the presidency to win the popular vote and lose the election. The aim to protect the minority against majority tyranny is already enshrined in the composition of the Senate and its rules. It is also reflected in the checks and balances of the separate branches of government. Unfortunately, the separate branches have not been a very effective agent of checks and balances. They have been overtaken by the two party system, which the Constitution does not envision. In fact, the Founders warned against the emergence of factionalism. What is missing is the spirit of compromise between the parties that checks tyranny from either side in which case there is always the threat of tyranny from either side when in power. There is little prospect in the immediate future of eliminating the Electoral College. What is needed is an education of the citizenry in the price our so-called democracy pays in tolerating its existence in the hope that a successful social movement can form for its abolition or reform. Our elections are not determined by the 50 states that compose the union, but rather by a small collection of states in the so-called heartland. That education should begin in the schools and in civics classes where the Constitution would be read critically for its failures as well as its achievements.
This brief essay is not a screed against the Constitution. It is a call to see it as a noble, though flawed, product, not as our political bible immune to challenge and change. It does remain a source of our law at this time and needs defending when a lawless president, a beneficiary of what needs to be changed in the charter, is violating it on what seems a daily basis.