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Our Flawed Constitution


Origins of Government

From 1776 through 1789, the newly-formed United States functioned under the Articles of Confederation. However, that document was incomplete and didn't include many provisions for, say, dispute resolution between the states. So it was recognized early on that a new document would be required--a constitution. So from May through September of 1787, a distinguished group of our forefathers met in Philadelphia to hammer out our constitution.

They did a pretty good job. The notion that any document written in the 1700s would hold sway and be used as guidance in the 2010s is really remarkable. It had its shortcomings, of course, which resulted in development of the Bill of Rights--a series of amendments that further defined the role of the federal government, guaranteed freedom of speech, etc.

This document and its amendments govern our country to this day. However, that has its problems. The purpose of this analysis is to examine some of those problems and what to do about them.

The Constitution as Divinely Inspired

September 17 of every year is Constitution Day. Here at the university, we provide activities for students to engage in that are meant to further their understanding of the constitution and its history. I thought--with honorable intent and malice toward none--that it would be a fun exercise to have students take some of the 18th-century language in the constitution and update it to 21st-century language that functioned better as guidance for our modern society.

One example would be this statement from the Second Amendment: 'A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.' I challenged students to rewrite this to encompass the notions that we no longer have militias, there is a significant difference between keeping arms in one's home vs. carrying them in public, etc. There's plenty of fodder here for inspired prose and enthusiastic discussion.

But I only ever received one input. That input was from a student who considered the Constitution to be perfect, to insinuate that it wasn't was unpatriotic, and to suggest rewriting it would be heresy.

So the overall exercise itself was unsuccessful, but it brought to life a couple of interesting questions: Is there such a thing as a divinely-inspired document that should not be messed with? And if not, how does one approach the highly sensitive issue of updating a document that many people think IS sacrosanct?

Our Forefathers Were Flawed Humans

Sorry, but it's true. There was no representation of women at the convention. Why not? There was no representation of minorities at the convention. Why not? Well, the obvious answer is that many of the representatives were slaveholders. The forefathers were not particularly healthy--in their era, they suffered from diseases that would horrify us today. We think we drink a lot today--but we were were nothing compared to them.

And--apologies again--they weren't very smart, overall. Analysis of IQs over time shows that if the average IQ of a person today is 100 (which is how the evaluation is designed) then the IQ of a person in 1930 would be 80--bordering on mental incompetence by modern standards. Extrapolate that back to the 1700s--what would their IQs be in today's world?

This is not meant to be disparaging. Rather, this is meant to confirm what a remarkable document the Constitution is, given that our founding forefathers had so much working against them. However, it's also meant to illustrate that the notion of the forefathers as being divinely inspired and the Constitution being a perfect document that is not to be altered is a seriously mistaken perspective that is doing damage to our society.

Calls for Updates

So I find it interesting that calls are increasing for an initiative that would update our age-old guidance.

For example, this analysis from the Hoover Institution noted:

'The founders crafted a government 225 years ago for a simple agrarian society of just four million people, some 700,000 of whom were slaves. Of the free population, 95 percent were farmers. Government was not expected to do much, and the founders—mainly concerned about avoiding “tyranny of the majority”—purposely designed a byzantine government that couldn’t do much, separating authority across the various branches of government and filling it with veto points that made coherent policy action exceedingly difficult.'

This article in the Atlantic noted:

'Even if we discount the failures of other presidential democracies, though, we should not dismiss the fact that the U.S. Constitution was modeled on a system that collapsed into civil war, and that it is inherently fragile. “This is a system that requires a particular set of political norms,” Eric Nelson told me, “and it can be very dangerous and dysfunctional where those norms are not present.” Once those norms have been discarded, the president or either house of Congress can simply go on strike, refusing to fulfill their responsibilities. Nothing can compel them to act.'

Under the category of 'nothing can compel them to act' would be the Senate's refusal to ratify the most recent Supreme Court nominee--any given branch of government can simply refuse to do its job, and there's nothing anyone can do about it. That's a pretty horrifying recipe for failure.

Similarly, this analysis indicates that the Bill of Rights has been largely undone by the Patriot Act in order to cope with terrorism and other modern threats, so perhaps it should be rewritten as well:

'This (Fifth) amendment has been stepped upon and overturned and basically eviscerated with loopholes and legal trickery so much that it basically has no meaning anymore. You can see why the founding fathers felt it was necessary to try and protect people from being arrested and thrown in prison or having their property seized on a whim, but ...'

In Sum

So in sum, I would encourage you to consider that, despite the fact the Constitution is a most remarkable document, it is a product of its time--a time of revolution, slavery, disease, alcoholism, and a very small population to govern. It's unreasonable to expect that document to be a perfect guide 250 years later.

I'm sorry--it just is.

So let's approach our need to protect our citizens from gun violence, social stratification, income inequality, racism, climate change--and all of the other threats of our modern world--with a 21st century document that honors our past while bravely facing our future, with a clear mind and a will to continue to become the society that our forefathers envisioned.

Randall Cuthbert Dr. Randall Cuthbert is a retired APUS Professor of Emergency & Disaster Management. He has also worked as a Red Cross Shelter Supervisor, and spent a 20-year career as a US Air Force Civil Engineer Officer. His blogging interests include: protecting & enhancing the EDM profession in the areas of integrity, honorable public service, and social justice; education regarding the 'big picture' role of EDM in our society; educating our professionals and neighbors with regard to the greatest threat to our civilization--climate change; and in general terms, creating a better world for our children and grandchildren.