Can the Constitution Adapt?

Living Make-Belief, Chapter 10

I’m spending a few months analyzing the ideas in Jim Dator’s new book Living Make-Belief, along with related works. The introduction to this project can be found here. All entries are listed here.

If the Constitution is outdated and doesn’t suit a Dream Society, can we fix it? Following on chapter 9’s discussion of the Constitution’s goals and limitations, chapter 10 reviews the efforts to reimagine the document since its ratification. There are two main reasons these efforts have failed to make significant changes since the Bill of Rights: most Americans have an emotional, reverent connection to the Constitution as the only correct way to run a country¹; and the framers intentionally made it nearly impossible to change².

The chapter explores a few attempts at alternatives over the centuries. The first was the global communist movement, starting with the 1848 revolutions in Europe and getting the chance to govern in 1917 with the Russian Revolution. Despite a new ideology and the industrial mentality of central planning, communist governments largely used the same institutions as their predecessors. Dator describes William Kay Wallace’s 1932 book Our Obsolete Constitution as an attempt to apply the lessons of the Soviet system to the US. It recommends we become more capable of solving collective problems by creating a new system based on positive economic rights, realignment of the states, and replacing the apparatus of government with a corporate hierarchy led by a national Board of Directors. The idea never gained support but made the case that new forms of society require new governance structures.

The Populist and Progressive movements in the decades before and after the dawn of the 20th century succeeded in creating several changes at the margins of the system, including direct election of senators, the petition process in the states, and direct primaries. The fact that these increases in democratic nature and transparency have increased the total dysfunction³ is a strong indictment of the US system’s pretensions to be an open and democratic society, or of democracy itself.

Dator also discusses Woodrow Wilson’s vision of the constitution as a living, organic thing that goes well beyond the text of the Constitution and is constantly evolving/adapting as society changes. While the analogy rubs me the wrong way (our bodies operate much more collaboratively than government) it correctly points to the main mechanism (though one not mentioned in the Constitution⁴), that allows it to adapt without amendment: judicial review. This is a necessary corollary of a text-based (i.e. agricultural-society mentality) system without a central decision-maker; if words constrain what the government can do, then the meaning must be managed over time. The current dominance of textualist views in constitutional law presupposes that fidelity to original intent is the correct way to do this (though often this view merely provides ideological cover for decisions rather than guidance), but this puts pressure on an increasingly brittle system. That pressure is creating growing interest in another Constitutional Convention, but it’s also opening space for the likes of Bronze Age Pervert to push nihilistic visions of the end of society.

This chapter has Dator’s first actual suggestion for governance, which is lifted from Ryan Doerfler and Samuel Moyn: ignore the Constitution (basically, end judicial review) and just pass and follow laws. This seems like madness to me, on two fronts. First, it would make government more democratic, but do away with protecting the “liberal” part of “liberal democracy”, where basic rights of minority groups, opinions, etc, are upheld even when unpopular. Second, the Constitution dictates who can be elected to Congress, what the relationship is between the two houses, and what qualifies a law as “passed”. In a world where norms are already eroding into chaos, I can’t recommend “vibe legislating”.

We’re running out of chapters for the book to get from diagnosis to treatment plan…

1. This is certainly true of constitutionalism in general, but it’s even true of our specific presidentialist flavor.

2. The major exceptions being the Bill of Rights, promised as a condition of ratification, and the amendments passed in the wake of the Civil War when one party was effectively excluded from decision-making.

3. OK I realize this is probably a minority opinion. But here’s a decent indictment of direct primaries from 1931 that I think is still valid (“It has increased the cost of candidacy; it has tended to promote the demagogic type of office seeker, has swelled the tribe of politicians living off the public purse, has undermined party responsibility; and at a time when self-government has been compassed about as never before with difficulties, because of the increasing complexities of our economic and social structure, it has injected into the body politic a new form of mass action which has added materially to the embarrassments already existing.”); California is a good example of the dysfunction of rule by petition; and even the direct election of senators has been criticized by experts from the left and the right. I am a fan of women voting, for the record.

4. This power is not mentioned in the Constitution itself, ironically, but if you’ve heard claims that the Supreme Court invented the power out of whole cloth, that also seems to be incorrect. This Reddit thread contains useful background.