Gongol.com Archives: June 2022

Brian Gongol

June 27, 2022

News Old and short

Legal journalist and commentator Benjamin Wittes quotes the long-time jurist and legal scholar Richard Posner as saying, "The Constitution is old -- old and short." Indeed, it is both. Written in 1787 and ratified in 1788, it has endured 13 times longer than the average national constitution. ■ And with a main text shorter than 4,500 words, it certainly is short. The shortest of any major constitutions, in fact. Chapter 1 alone of the proposed constitution of the European Union was more than 5,400 words long -- and the text of the full document went on for hundreds of pages. (It was never fully ratified.) ■ Brevity has intrinsic value within a contractual agreement. Wedding vows can usually fit on a notecard, while the terms and conditions to Adobe Acrobat Pro take up 12 pages. Wedding vows do not always hold, but nobody making them can claim ignorance of the basic promise to love and honor their partner. ■ There are those who think themselves clever to react to current events by fantasizing about replacing the Constitution. But none of them reckon with even the first and most fundamental question: If they are not satisfied with the present Constitution, do they want one that is stronger or one that is weaker? ■ If they want a stronger constitution, perhaps with a more powerful central government and fewer checks on democratic impulses, then they need to reconcile that desire with the certain knowledge that public opinion can change very quickly -- the same public that radically transformed its opinion on same-sex marriage also gave George W. Bush a 71% approval rating in 2003 and gave Barack Obama a 55% disapproval rating in 2014. That the present Constitution seeks to temper those swings is not all bad. ■ If they want a weaker constitution, they need not only to overcome the experience of the Articles of Confederation (which were too weak to hold the newly independent country together) and of the Civil War, but also to explain how they would overcome the secessionist and other malignant forces that have tried to split up California (in 2018) or let modern-day Texas secede. ■ The Constitution is old, and it is short. It is probably old precisely because it is short. It is imperfect -- a fact admitted by the very presence of a mechanism for amendments. And that, too, speaks to its ability to survive. If anytime we do not like what the Constitution is doing for us, it is up to us to use that mechanism -- and, more importantly, the powers of civil persuasion -- to convince our fellow Americans to make a change. ■ To bypass the existing process for change in the hope of achieving some kind of hazy utopian end is to ignore the fact that a people who could be democratically persuaded to give up the entire existing order must surely be open to making revisions to it in part. The Constitution can stand to grow a little longer through reasonable amendment. But we should be dead-set against overturning it outright -- most especially with nothing close to a sensible alternative on the table.

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