A Case for Deleting Our Constitution (in the U.S.)

for a yet “more perfect Union”

Photo by Anthony Garand on Unsplash

The U.S. was the first nation in the world with a written constitution. It specifies the structure and sanctioned functioning of government in this nation, to include expressions of the limits on the powers of government. Included in those limits are rights of individuals that government cannot transgress.

That document has served this nation well. It has been strong-yet-flexible enough to see this nation through, it is safe to say, the most turbulent roughly two and a half centuries human beings have ever experienced.

To be sure, values expressed in it are timeless. A case can be made, though, that its time is passed.

One weakness of our Constitution is that it bases the distribution of political power on geography. Land is itself a source of political power. Given that the ‘Founding Fathers’ were mostly would-be aristocrats, that is not surprising.

The number of senators is strictly determined by how many units of land, as states, exist in the Union, regardless of size or population. In translating that power to the Electoral College, land as a source of political power is magnified.

Even in ‘the people’s house’, the House of Representatives, political power is broken up into geographical units. The party that happens to be in power in a state every ten years can manipulate political power by manipulating those geographical units to maximize its chances of staying in power until the next opportunity to further manipulate power to its benefit presents itself.

However resilient our Constitution has been, it appears that it is no match for the scorched-earth politics we are experiencing today. Our politics in this nation have always been a wild and wooly thing, but people invading our Congress to stop it from formally certifying for the nation as a whole an election every state had already certified for itself, an action defended and/or excused away by an entire political party (as an organization, whatever some of its individual members might have had to say about it), tells us we are in a far different place politically than this nation has ever been. The ‘need’ for political victory is overriding any respect for any laws, institutions, or even moral values that might get in the way of achieving that goal.

As many people are wont to emphasize, our Constitution did not create a democracy. It created a federated republic.

It did, however, establish a democratic political process. A democratic political process is one with freedom of political speech and a just distribution of the other possible forms of participation in that process as inviolable rights.

Our Constitution expressly recognizes the right to petition the government (for “a redress of grievances”), to peaceably assemble, and to hold office. The last might only imply a right vote (to “choose” who will hold this or that elective federal office), but that right is made explicit in the Fifteenth Amendment.

Of those political rights, the first two are as open to all as freedom of political speech is. Only residency and age restrict the right to run for office. The Constitution, in the specified Amendment, makes age (and criminal behavior) the only valid discriminators regarding the right to vote.

Before that, both property and ‘race’ had been used as discriminators in individual states. Somehow, gender was still seen as a valid discriminator, but that was addressed in the Nineteenth Amendment.

So now we have a political process with freedom of political speech and a just distribution, as rights, of the various other forms in which participation in the political process can consist. Those remaining restrictions are just because they are universally applicable. That means they are not arbitrary. As John Locke (the English philosopher whose work most informed the work of the ‘Founding Fathers’) said, arbitrariness in human relations is injustice. Its absence is justice.

In allowing for the establishment of a fully democratic political process, our Constitution has done its job. Any law passed within that process that would not transgress the rights and freedoms associated our democratic political process would be a valid law.

The worst part about having a written constitution is that it can come between what is constitutional on the one hand and what is just on the other. There can be no doubt that humanity’s understanding of justice has continued to evolve since 1776. A written constitution is, on the other hand, a rigid thing.

Sure, through amendments and judgements on the part of the Supreme Court that document can and has been adjusted to account for that evolutionary process. Even so, it is obvious that a written constitution can also become an impediment to justice as it comes to be understood over time.

That possible impedency is a product of the very existence of such a document in itself. The validity of the distribution of political power and of particular laws is judged by its accordance with the constitution, not ‘justice’.

Some might argue that a written constitution is explicit, whereas ‘justice’ is a vague concept. Yet, except for a case in which a law or whatever incontrovertibly accords with or is in conflict with a written constitution, some interpretive process concerning the relation of that law, etc. to that document is unavoidable. Any interpretive process among human beings who are to decide such matters cannot be free of ideological, theological, psychological, and other subjective influences that will inevitably enter into that judgement. In short, the existence of a written constitution does almost nothing to rid governance of arbitrary influences — the exact thing the existence of such a document is intended to accomplish.

Actually, retaining our Constitution for specifying the structure of government and limitations on its power would be a fine thing to do. For specifying how political power is to be distributed and as an arbiter of what is or is not a valid law, however, it is no longer needed.

What is needed still is some guiding principle. England is one nation that does not have a written constitution. It has as its governmental backbone the tradition of English Common Law that had evolved over centuries. By tradition, certain especially significant Acts of Parliament are recognized as being ‘constitutional’.

For that nation and ours, a more specific single idea that would serve as a guiding principle — coupled with an inviolable democratic political process — would be an improvement over ‘what is’.

For England and the U.S, the foremost concern is to maximize the liberty enjoyed by the people of those nations. To make that explicit, it must be emphasized beyond any question or doubt that people are free to do anything or engage in any speech that has not formally been made illegal. It must be perfectly clear that no interference of any kind will be tolerated in anyone’s exercise of one’s liberty. People cannot be confronted in any way, harassed in anyway, or suffer any form of protest when engaged in any activity, conduct, or behavior — to include speech — that is not illegal. People’s freedom to comment publicly in any forum about any conduct, to include speech, they believe to be immoral though it is legal, is not to be abridged, but they cannot take any other action whatsoever that might so much as lessen the likelihood that any person(s) might engage in such conduct.

With an inviolable democratic political process in place and an absolute understanding of the boundaries surrounding the liberty of individuals, a written Constitution as an arbiter of the distribution of political power and what constitutes a valid law is not necessary. In fact, it adds a layer of complexity, one that can itself be influenced by arbitrary considerations on the part of the all-too-human arbiters, that only makes matters of governance more difficult to resolve justly. All that is needed is an inviolable democratic political process that recognizes that a law can only be invalid if it arbitrarily restricts participation in that process combined with an inviolable understanding that people are absolutely free to do or say anything that is not illegal.

unaffiliated, non-ideological, unpaid, academically trained philosopher and political economist