AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.I think this deserves serious consideration. The United States has been, for my limited experience, oddly reverent of rather than reflective on its constitution when compared to other countries. This has been true with the gun debate, where people have often fallen to hiding behind the existence of the second amendment as a defense in moral and philosophical debate rather than leaving it to the legal side of matters and defending gun rights on their own merits. It is also true, of course, that much of our fiscal dysfunction is the result of rules that were written for an educated patrician republic which could be checked by democracy, which we've slowly tried to evolve to a plebian representative democracy, and ended up with a corporate-steered leaky hybrid.
As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?
Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.
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