Americans solemnly venerate their founding document (that was not their founding document) as if God dictated it Himself (naturally). Indeed, many American Christians (and painter Jon McNaughton) believe that just as they do of the Bible. But the U.S. Constitution has its merits, even if mathematician and philosopher Kurt Gödel thought it contained a fatal flaw.
As instructive as it is chilling at this moment in U.S. history, Jill Lepore walks readers of The New Yorker through Linda Colley’s upcoming “The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World.”
“Wars make states make constitutions,” Colley writes in a corollary on a thought by sociologist Charles Tilly. (Wars are also vectors for spreading religion, I would not be the first to observe.) The worldwide wars of the 18th century sparked an era of constitution-writing, Colley believes, not noble ideas about the rights of men. (Women nearly always fared less well under them.)
Lepore writes:
Before constitutions were written, women had informal rights in all sorts of places; constitutions explicitly excluded them, not least because a constitution, in Colley’s formulation, is a bargain struck between a state and its men, who made sacrifices to the state as taxpayers and soldiers, which were different from the sacrifices women made in wartime.
It was acknowledgment of the costs of rulers’ military adventurism that inspired rules for governance that both limited rulers’ itch to start wars and provided for ways to finance them with taxes. Promises of guaranteed rights — often unmet — prompted their acceptance by the populace.
Constitutions and constitution-like compacts, Colley argues, are one kind of paperwork that wars generate. In 1765, ten years after Paoli drafted Corsica’s costituzione, and at the close of the Seven Years’ War, Catherine the Great, the Empress of Russia, began drafting the Nakaz, or Grand Instruction. Having seized the throne in a coup d’état in 1762, and therefore insecure in her rule even as she worked to expand her realm through repeated military campaigns, she sought to provide a framework for government. She relied, in particular, on Montesquieu’s 1748 “Spirit of the Laws,” which also greatly influenced James Madison. (Catherine called it “the prayerbook of all monarchs with any common sense.”) Montesquieu had denounced the militarization of modern life, surveying kingdoms and empires from Spain and France to China, Japan, and India. “Each monarch keeps as many armies on foot as if his people were in danger of being exterminated,” Montesquieu wrote. “The consequence of such a situation is a perpetual augmentation of taxes.” He and his intellectual kin had a solution, which Colley describes as an irresistible lure to sovereigns: “that in an age of rampant, expensive and disruptive military violence on land and sea, innovatory and informed legislators might intervene so as to bind up society’s wounds, re-establish order, remodel their respective states, and in the process burnish their own reputations.”
That, as Colley makes clear, was Catherine’s plan. Faced with unceasing challenges to her authority—as a foreigner who had seized the throne and as a woman—she nevertheless intended to pursue wide-scale warfare against the Ottoman Empire and its allies in an effort to extend Russia’s borders. To that end, she insisted on her sovereignty while guaranteeing her subjects liberty and equality. “The equality of citizens consists in their being all subject to the same laws,” she wrote in the Nakaz. She called taxes “the tribute which each citizen pays for the preservation of his own well-being.”
“Taxes are what we pay for civilized society,” Supreme Court Justice Oliver Wendell Holmes, Jr. would say much later. Americans being more provincial (and because Catherine was a woman) took little notice of the Russian monarch’s efforts in crafting their own constitution.
But what gave constitutions weight was ready availability of printed copies. People who knew what was in them could organize to hold leaders to them, or at least make the attempt.
Wars make states make constitutions; states print constitutions; constitutions guarantee freedom of the press. In the nearly six hundred constitutions written between 1776 and about 1850, the right most frequently asserted—more often than freedom of religion, freedom of speech, or freedom of assembly—was freedom of the press. Colley argues, “Print was deemed indispensable if this new technology was to function effectively and do its work, both at home and abroad.”
What made the U.S. Constitution more stable was Article V that allows for its amendment, the first such document to do so. Without that provision, the only other option for addressing deficiencies was overthrow of the government. Colley does not address this feature, Lepore writes, noting now that “ninety-six out of every hundred of the world’s codified constitutions contain an amendment provision.”
Even so, other states amend theirs far more frequently. U.S. amendments tend to come in bursts: “in 1791, with the ratification of the Bill of Rights, the first ten amendments; after the Civil War, with the ratification of the Reconstruction Amendments; and during the Progressive Era, with the ratification of the Sixteenth, Seventeenth, Eighteenth, and Nineteenth Amendments.”
It may be time for another round. Yet the obstacle to amending the Constitution is more cultural than structural. The veneration with which Americans view the document makes it difficult even though recent events have exposed some rotting roots. As with the practices of Christianity on this Palm Sunday, custom and usage over time freight the country as much if not more than the age of its core text.
Rather than being amended, the Constitution has been betrayed, circumvented, violated, and abandoned, by force of practice. Can a U.S. President compel a foreign leader to interfere in an American election? Apparently. Can a U.S. President refuse to accept the results of a free and fair election and incite a mob to attack Congress in order to prevent the certification of the vote? Apparently. The U.S. Constitution, no less than the U.K.’s unwritten constitution, is more than the sum of its words; it’s the accretion of practices and precedents.
Kurt Gödel might have been happy to hear that. Gödel’s Loophole really isn’t anything like Fermat’s Last Theorem, because constitutional scholars are pretty sure of what Gödel had in mind. It’s a constitutional version of the idea that, if a genie wafts out of an oil lamp and offers you three wishes, you should begin by wishing for more wishes. In what amounts to a genuine oversight, Article V, the amendment provision, does not prohibit amending Article V. It’s very hard to ratify a constitutional amendment, but if a President could amass enough power and accrue enough blindly loyal followers he could get an amendment ratified that revised the mechanism of amendment itself. If a revised Article V made it possible for a President to amend the Constitution by fiat (e.g., “The President, whenever he shall deem it necessary, shall make amendments to this Constitution, which shall be valid to all intents and purposes, as part of this Constitution”), he could turn a democracy into a dictatorship without ever having done anything unconstitutional. What Gödel did not realize is that it’s actually a lot easier than that.
One of the country’s major political parties can simply exploit “structural biases” in the Constitution to ensure minority rule in what is ostensibly a majority-rule system. Law professors Jonathan S. Gould and David E. Pozen spell out how, Greg Sargent wrote last week:
Their findings are stark. They find that the multiple veto points in the legislative process — the supermajority needed against the filibuster, congressional rules empowering committees to kill legislation, etc. — systematically work against Democrats, because they generally harbor more legislative ambition.
“Veto points that increase the difficulty of enacting legislation,” they note, “have come to impede the policy aspirations of Democrats more than those of Republicans.” The executive branch, they find, is riddled with procedural features that systematically hamper the ability of agencies to regulate.
They detect a similar electoral bias. Two senators representing each state regardless of population advantages the party that overperforms in small states, as does (to a lesser extent) the electoral college.
What’s more, the reliance on single-member congressional districts (created by federal law) benefits the party that overperforms in sparsely populated areas and works against the party that wastes more votes in concentrated ones.
In some cases, a shift in the party’s coalitions could undo those biases. But for now, the authors conclude, our “intersection of constitutional design and political geography” has produced systematic structural biases for the party that is “strongest in small states,” the GOP.
Good luck getting amendments past those states to undo, in the name of fairness, constitutional biases that tip the playing field in their favor. Especially now that minority rule is the only way they can.