Let’s End the Damaging Cult of the Constitution

Duane Townsend

Moyers on Democracy - February 24, 2021

Since roughly 1980, our politicians have recited from the same dreary playbook: culture wars demonization, bogus concern about debt and deficit, the American people don’t deserve better and the government shouldn’t do anything in any case. Incredibly, all these political mantras saw service even in a pandemic that has killed a half million Americans. Throughout this four-decade period, the Constitution has served as justification either for keeping things as they are or making them slightly worse. 

Imagine if the people of Germany’s capital, Berlin, had no representation in the Bundestag. Picture the last presidential election in France resulting in Marine Le Pen defeating Emmanuel Macron while garnering millions fewer votes. Finally, suppose that Britain’s parliamentary constituencies were created so that sparsely populated Scotland enjoyed vastly disproportionate representation.

Perform that thought experiment and you will understand why people in other developed countries shake their heads at the American system of government. For all the obligatory public reverence we render to our Constitution, it has served us poorly for decades. Its negative features stymie modern governance and democracy itself, while its good provisions have been perverted or are virtual dead letter. Worst of all, its very structure impedes sensible revision.

But it is also resistant to change for psychological reasons: the document is so invested with quasi-religious baggage that it has become a totem, foreclosing factual debate about its pluses and minuses. As a first step, before we even attempt to engage the rusty, clanking mechanism of constitutional revision, we need to be able to discuss the matter like adults and prepare the way for reform.

Both our major parties bathe the Constitution in adoration, but in distinct ways. Republicans hive to the cult of “constitutional conservatism,” which treats it as a perfect, unchangeable charter bequeathed to us by infallible founding fathers in the manner of God handing down the Ten Commandments.

This does not prevent the GOP from making the most radical interpretations whenever it suits them. A huge Republican legal industry headed by the Federalist Society exists to stretch constitutional construction to the breaking point. Whenever a Republican occupies the presidency, conservative operatives will insist the intent of the founders was to grant the chief executive dictatorial powers equal to those of Kim Jong Un. When not convenient for them, the plain wording of the Constitution somehow is itself unconstitutional, as with Republicans’ excuse making during the impeachment trial of Donald Trump.

Democrats were noted during the New Deal and Great Society for being expansive readers of the Constitution, particularly the commerce clause. That has changed as the two parties have essentially flipped positions on many matters of interpretation.

Now Democrats are content with a more restrained reading of the document. In the last few years, they have invoked it in vain attempts to rein in a lawless and runaway chief executive. But all it demonstrated was that several constitutional provisions, like impeachment, insurrection, treason and emoluments, have become amusing legal folklore, like Oliver Cromwell’s prohibition of eating mince pies on Christmas day. ...
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