Dis the Constitution

April 17, 2016

I’m about to dis the U.S. Constitution. It’s a Constitution I swore to support on October 17, 1981 and implicitly, on each and every one of the following 12,602 days. To be clear, given that I live in Arizona, a state which seems hell bent on challenging Kansas for Most Effed Up State trophy, I support the U. S. Constitution so long as it remains in place.

Many years ago I got involved in a case in which my client took over a business in bankruptcy. The operator spent too much time explaining the company’s very advanced totally inadequate accounting system. A few years later a small law firm tried to hire me and, in the process, bragged on its great not even adequate management systems.

I thought about these two situations when I read A New Map for America by Parag Khanna, in the Sunday Times today. Mr. Khanna posits that we need to dump our 50 states, in favor of a new model which includes seven—I think it’s seven, for the map is a bit challenging—regions. Mr. Khanna’s thesis is set forth in his first paragraph:

THESE days, in the thick of the American presidential primaries, it’s easy to see how the 50 states continue to drive the political system. But increasingly, that’s all they drive — socially and economically, America is reorganizing itself around regional infrastructure lines and metropolitan clusters that ignore state and even national borders. The problem is, the political system hasn’t caught up.

Mr. Khanna makes lots of sense, although he readily acknowledges that “[t]he states aren’t about to go away … .” More broadly, though, I’m struck by the notion that seemingly serious people revere our Constitution. The document was written in 1787, and ratified in 1788, just shy of 228 years ago. Can any serious person really believe a bunch of rich, white, 18th century men had the wherewithal to design a system for our country, two-and-a-quarter centuries later?

As it happens, Thomas Jefferson—bright enough that the man who moved into the White House 160 years after Jefferson, John Kennedy, said of him, on entertaining Western Hemisphere Nobel Prize winners, “I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone”—wrote on September 6, 1789, that:

Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.

Nineteen years does not carry some magic for me, Jefferson’s brilliance aside, but the notion that a late 18th century Constitution serves us well in the early 21st century ought to raise eyebrows everywhere. Sadly, in lieu of a meaningful discussion about our future as a nation we get paeans to the Constitution, and how dare anyone question its suitability for our times.

I’ve never thought I was especially conventional, so let me suggest one way in which our Constitution fails us today. Article II, Section 2 gives the president the power to appoint “judges of the Supreme Court,” with the advice and consent of the Senate. Justice Antonin Scalia died nine weeks ago today, and the Senate majority has, for more 1500 hours, advanced the notion that we have to wait until the next presidential election before we fill a vacancy which needs to be filled. (The U.S. Supreme Court cannot do its job fully and completely with an even-numbered complement of justices. And that’s not an opinion; it’s a fact.) A modern Constitution, appreciating partisanship and the ability to stymie the government, would provide for a solution. And yes, the ballot box in November may—and, I hope, will—turn the Senate and end governance by threat, but we live in a world in 2016 that functions at a pace which the Constitution’s drafters never could have contemplated. The world is leaving us behind, while we chain ourselves to 228-year-old processes.

More soon!


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