Fuck the Constitution

Why do people rely so much on the U.S. Constitution? I have seen comments on this site that have said, to effect, “only one thing is non-negotiable: the Constitution” and diaries that have based their whole premise on “defend the Constitution”; President Bush is said to be an evil, evil person because he “violated the Constitution.” Heck, we might as well all pack our bags now and head over to the Constitution Party.

This, treating the Constitution as a sort of sacred document, a civil religion, is stupid.

The Constitution has been with us since 1789; in 1789, for example, slavery was perfectly legal. The 3/5ths compromise, which granted the slave states representation equal to 3/5ths of their slaves, and which represents the hypocrisy of slaveowners demanding the right to acknowledge the humanity of their property when it suited them, that ugly display of brute force and hypocrisy, is written right into the Constitution, explicitly. Is that a document that should be worshipped exclusively? The noble words of the preamble of the Constitution are something we look to now, but they weren’t meant to apply to slaves, Native Americans, or women, or white men who did not hold a certain amount of property. Is that a document to be worshipped exclusively?

Most of us take the right to vote as an essential component of democracy. One common slogan is “count every vote!” But the Constitution contains no right to vote. For the first half century after the Constitution became the law of the land, there were no direct elections for President in many states. State legislators chose the state’s electors for President, not the “popular” ballot. Even in states where there were direct elections, the franchise was often limited to such a small segment of property owners that the vast majority of people could not vote. It was not until Andrew Jackson’s era that universal white male franchise became common. Yet the preexisting conditions were completely endorsed by the Constitution. Is that a document to be worshipped exclusively?

The Constitution left unresolved many great questions. The most basic, fundamental question of our nation, the question of sovereignty; whether it belongs solely to the federal government or primarily to the several states, is left unresolved by the U.S. Constitution, even today. That failure gave us the Civil War, the bloodiest conflict in American history even to this day, and proportionately the most devastating, whose scars can still be felt. The question of sovereignty was not settled by the Constitution; it was settled at Gettysburg.

The Judiciary Act of 1789 gave us the power of judicial review and the organization of the courts. Combined with the precedent set down in Marbury v. Madison, our legal heritage has since the very beginning of our nation it has played an essential role in our national life and governance. Yet nowhere is judicial review to be found in the Constitution.

There is no right to travel in the U.S. Constitution. Any state may simply enact a law preventing all of its residents from leaving, and it would be perfectly constitutional. Nor can Congress’s power to enact a minimum wage, something supported by over 80% of the population and by both major political parties, be found anywhere in the Constitution. The entire National Labor Relations Act (NLRA) is unconstitutional, as is much of the administrative apparatus that has been built up since the New Deal.

Because of the Constitution, otherwise qualified people such as Gov. Jennifer Granholm, or, from the other side, Gov. Arnold Schwarzenegger, cannot be chosen by the people, no matter how loyal they are, for our nation’s highest office because they were not born on U.S. soil. John McCain only qualifies because he was born on a U.S. territory.

Thanks to the Constitution, the residents of the District Columbia have no voting rights in the House of Representatives, betraying the slogan “no taxation without representation.”

Thanks to the Constitution, a man who was rejected by a popular majority by over 500,000 votes nonetheless became President, and candidates campaign in a few “battleground states” while ignoring the others.

It is freaking hard to get an amendment to the Constitution passed. In over two hundred years only about seventeen amendments have passed. Even if Congress votes unanimously to pass an amendment and the legislatures of states representing more than four-fifths of the population pass it, it can still be held up.

Where would we be without a Constitution? The United Kingdom is a thriving democracy with strong civil liberties and protections. There is no more danger there of a threat to republican government than here. Yet they have never had a Constitution.

The Iraqi Constitution is far superior to the U.S. Constitution. It is filled with more inspiring language that ours. For example, the Preamble states:

We are the people of the land between two rivers, the homeland of the apostles and prophets, abode of the virtuous imams, pioneers of civilization, crafters of writing and cradle of numeration. Upon our land the first law made by man was passed, the most ancient just pact for homelands policy was inscribed, and upon our soil, companions of the Prophet and saints prayed, philosophers and scientists theorized and writers and poets excelled.

Unlike ours, it settles the question of sovereignty:

(The Republic of Iraq is a single, independent federal state with full sovereignty. Its system of government is republican, representative 61/27Parliamentary63/47 and democratic. This Constitution is the guarantor of its unity)

Article 8 goes a great deal toward ensuring that it will not undertake wars of aggression:

Iraq shall observe the principles of a good neighborliness, adhere to the principle of non-interference in the internal affairs of other states, endeavor to settle disputes by peaceful means, establish relations on the basis of mutual interests and reciprocity, and respect its international obligations.

It explicitly contains greater rights and protections than ours:

Article 17

First: Every individual shall have the right to personal privacy, so long it does not contradict the rights of others and public morals.
Second: The sanctity of the homes is inviolable and homes may not be entered, searched, or put in danger, except by a judicial decision, and in accordance with the law

... far greater protections:
Article 22

First: Work is a right for all Iraqis so as to guarantee them a decent living.
Second: The law regulates the relationship between employees and employers on economic basis and with regard to the foundations of social justice.
Third: The State guarantees the right of forming and joining professional associations and unions. This will be organized by law.

And so on for 139 Articles. Clearly, if any document is more deserving of our worship, it is the Iraqi Constitution. No country with such a constitution could possibly go wrong!

But if the U.S. Constitution is imperfect, that is not to say it is unimportant; on the contrary, I think it’s critical to our country.
But we should not worship it exclusively, especially in the form of “original textual meaning”; there are other things that make our country great beside its Constitution, and it is those things that carry the burden. Our large, educated population; our thriving economy; our civic traditions of republicanism, civil liberties, and natural rights; our belief in democracy, freedom and equality; our commitment, in the words of Daniel Webster, to “liberty and union, one and forever”; that we rest on the shoulders of giants such as Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, John F. Kennedy, and others.

Ultimately, it is the Constitution that exists to serve us, “we the people,” not vice versa. To reduce what is important in our country to only the words of the Constitution is to denigrate all the great Americans, living and dead, who have come since that flawed document and make this country, substantively, what it is, and what it will be.