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Lost Clauses

The participants in the Forum on the Constitution [“Constitution in Crisis,” October] offer wonderful insights. However, they do not sufficiently celebrate the Constitution’s virtues—nor do they address its flaws in a constructive way. David Law expresses skepticism as to the very desirability of a written constitution, pointing to other countries without them. But this ignores the Constitution’s overwhelming success and durability. We have enjoyed more than two hundred years of democratic rule with orderly transfers of power. We have endured a civil war and survived depressions and recessions without yielding to the temptation of totalitarianism. Overall, the Constitution has allowed for a great and ongoing expansion of freedom and equality.

Of course, it is also a deeply flawed document. When it was written, in 1787, it institutionalized and protected slavery. The Electoral College, which can permit someone who has not won a plurality of votes to become president, is profoundly antidemocratic. So is the United States Senate, in which each state holds the same number of seats, regardless of population. These flaws are foundational; it is not obvious how we might fix them.

The Constitution depends on the good faith of those who govern. As the panelists point out, we have a president with little concern for the Constitution, one who ignores basic aspects of our separation of powers on a near-daily basis. Where are the checks and balances for which the Constitution is renowned?

No system of government lasts forever. As recent world events demonstrate, democracies are fallible. I have never been so fearful for our Constitution or our democratic system. All the more reason to reiterate its tremendous value, and to shore up those features that have proven vulnerable.

Erwin Chemerinsky
Dean of the School of Law
University of California, Berkeley

October’s Forum raises a significant question that remains unaddressed by the participants: How informed is the public about the ways in which the Constitution’s many textual ambiguities can result in legislative gridlock, judicial overreach, and other problems that ultimately prevent our government from functioning effectively? Dealing with the impending onset of automation and climate change—crises that were not so immediately pressing in the eighteenth century—will require a rethinking of our moral and political priorities outside of an originalist framework.

“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts,” the judge and legal scholar Learned Hand said in May 1944, speaking to a crowd in Central Park. “Believe me, these are false hopes. Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it. No constitution, no law, no court can even do much to help it.”

This broader conception of political liberty and accountability has since been narrowed and debased by neoliberal economic dogma, and it has also been eroded by the neglect of civics education in schools. Before we consider the wholesale renovation of the Constitution, perhaps we should begin more modestly with education. We only have a few years before developments already underway—reorganization of our systems of labor and ecological disaster among them—will place further stress on our institutions.

Stan Wiggins
Bethesda, Md.

“The United States has the oldest continually operative constitution in the world,” Rosa Brooks tells her law class at Georgetown.

But the Constitution that was written in 1787 is not the same Constitution we have today, having been revised twenty-seven times in the form of amendments, the most recent of which was ratified in 1992.

This substantial history of revision is worth recalling, given that the participants seem to take for granted the Constitution’s essential inflexibility. It is a history that, in many ways, reflects the evolution of the country’s values. To discount it is to ignore that evolution, along with the effort by generations of activists and legislators that enabled it.

David Law points out that Thomas Jefferson believed that “every generation should rewrite the Constitution.” The amendment process remains our best method for doing so.

Duane Senn
Aurora, Colo.

Fledgling Allegiance

Lionel Shriver’s latest column [“Patrios,” Easy Chair, October] reckons with a difficult reality: large-scale immigration can have serious effects on the nature of communities, especially those defined by participatory politics. If we want to fulfill the promises of liberal democracy, or at least preserve what imperfect versions of it exist today, those of us currently living in comparatively healthy nation-states will have to be more imaginative and generous than we have historically proven ourselves to be.

Shriver invokes the Greek word patrios (“of one’s father”) in accounting for skepticism among Europeans about recent immigrants’ capacity for patriotism. But to the extent that modern nationalists use the Greco-Roman past to justify their cold reception of newcomers, they misread the historical record. Greeks and their neighbors throughout the ancient Mediterranean moved around frequently enough that citizens with foreign origins could be found in every city-state, sometimes in significant numbers. Then as now, chauvinists insisted that what is patrios could never be shared, while the world changed around them.

Randall Souza

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December 2019

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