As a constitutional law professor, the Fourth of July provides me an opportunity to appraise the health of our grand “experiment,” a term Thomas Jefferson used to describe our constitutional democracy. While there is certainly much to cause alarm, there is also much to celebrate.
On the worrisome side of the ledger, partisan politics and entrenched ideology seem as bad as ever. Topics that should garner bipartisan support, like education reform and increased health care for veterans, have floundered. The president, likewise, has broken norms by criticizing the authority of our basic governing institutions, including the judiciary, the media, the Department of Justice, the FBI, and even the election process itself. Several commentators suggest that these are unprecedented and harmful affronts to our basic democratic structure.
With such dark clouds, it’s hard to see gray linings, never mind silver.
But I have to think that the men who framed our tri-branched democracy would find lots to like. In their vision, government action was supposed to be slow — painstakingly slow. Any significant government action required assent by two of the three branches. To pass a law, for example, the Legislature must vote in favor of the bill and the president must sign it. To incarcerate an alleged criminal, the executive must arrest the suspect, and the judiciary must confirm illegality through conviction.
More to the point, our constitutional architecture invites debate and disagreement. It was that way from the start. In the first years following ratification, the framers themselves split over the Constitution’s meaning. Thomas Jefferson quarreled with Alexander Hamilton over the constitutionality of a federal bank, and Jefferson, when president, threatened to ignore the Supreme Court if it ruled against his interests.
We are constantly testing our representational democracy, and for the most part, our Constitution has proved resilient. While differing ideologies divide us, the Constitution unifies us. Our arguments turn on interpreting the Constitution, rather than questioning its authority. It is a unifying document to which all lay claim.
Even so, special interest groups have convinced several state legislatures to call for an Article V Constitutional Convention, with the aim of re-drafting the Constitution. This, to my mind, is the real danger. We have never held an Article V Constitutional Convention before, and the rules for participation, proposing changes and voting are non-existent.
Proponents maintain that changes to the Constitution would be limited, but their formal petitions belie such claims. The petition in Idaho, for example, allowed modifications “that limit the power and jurisdiction of the federal government.” This is no limitation at all. The vast majority of the Constitution would be open to revision because the vast majority of the Constitution addresses the “power and jurisdiction of the federal government.”
On this Fourth of July, as folks from across the political divide spread blankets on the grass to watch the dark sky illuminated with fireworks, I am heartened by those who have stood up and have spoken out. Indeed, Idaho legislators listened and ultimately rejected the resolution to call for a Convention. More than a dozen states followed Idaho’s lead this year and rejected calls for a Convention — yet another testament to our resilient Constitution and those dedicated to its preservation.
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McKay Cunningham of Boise is an associate professor at Concordia University School of Law.