Perhaps a better constitution would be what Lash proposes, with less opportunity for mischief by judges, but that is not the Constitution we have.
Kevin D. Williamson has posted an excellent takedown at National Review of a National Journal assault on the Constitutional regime. This latter piece, a polemic by Alex Seitz-Wald, argues that the founding document, while innovative in its time, no longer reflects humanity’s best constitutional erudition. Williamson’s critique is definitive—he notes, among other points, that the regime is not defective simply because it has failed to produce results in accordance with a critic’s proclivities—but I would amplify one point. Seitz-Wald argues for a sort of latter-day constitutional technocracy arising from science and divorced from experience that describes neither what happened at Philadelphia nor that for which any political society ought to wish today.
Seitz-Wald writes: “What was for the Founders a kind of providential revelation—designing, from scratch, a written charter and democratic system at a time when the entire history of life on this planet contained scant examples of either—has been worked into science.” Actually, the entire history of planetary life contained the British constitution, which the convention delegates much admired, and, more important, upwards of a century-and-a-half of uniquely American experience with self-government from which constitutional institutions evolved.
The notion of a constitutional regime concocted from scratch in a Philadelphia petri dish is radically at odds with John Dickinson’s counsel that “experience must be our only guide. Reason may mislead us.” Washington would later formulate a similar idea in his Farewell Address by warning against sizing the republic based on the abstractions of philosophers: “Let experience solve it. To listen to mere speculation in such a case were criminal.”
Abstraction was precisely what drove Jefferson, who could be led astray by such distractions, to write to Madison what Seitz-Waltz approvingly quotes: that generations average 19 years in length and consequently that no law should bind society longer. Jefferson had many virtues, but intellectual discipline did not always rank among them, and this particular idea was, strictly speaking, somewhere between silly and absurd. It would make political society impossible. In lumping Madison and Jefferson together, Seitz-Wald significantly omits Madison’s decisive rebuke to his friend, which notes the inherently cross-generational nature of constitutional orders and the fact that “[t]he improvements made by the dead form a charge against the living who take the benefit of them.”
By contrast, Seitz-Wald, in Jeffersonian spirit, would have us draw on the scientific advances made by humanity’s hundreds of experiences with writing constitutions since Philadelphia, enabling us to write a new one in time rather than across it. An assist might even come from—wait for it—Google: “If Americans managed to convoke a constitutional convention, they could draw on hundreds of possible tweaks with text already written, available online thanks to the Google-funded Comparative Constitutions Project. After hundreds of tries, we (humans) have gotten so good at chartering governments that we’ve developed a set of best practices. Our Constitution violates many of them.”
This portrait of constitutional technocracy, in which one simply stitches together the best constitutional provisions from the available options, utterly ignores the link between constitutional evolution and political culture. The most stable and successful constitutions are interwoven with, and gradually emerge from, the latter. Otherwise they are what Madison called mere “parchment barriers” to the will of untrammeled majorities. (The experience of post-World War II Japan, which Seitz-Wald invokes, is an outlying example at best; that of post-occupation Iraq and Afghanistan, which he also approvingly cites, is, shall we say, as yet unsettled.)
To be sure, the Framers were aware of what Hamilton called “great improvement” in “the science of politics”: representation, separation of powers and the like. But these were not innovations suddenly imposed in Philadelphia after their discovery in works of philosophy. They were theorized alongside their evolution in political forms. The foremost among them, after all, was Montesquieu’s theorization of the separation of powers, which arose from his observation of the long evolved British regime. Similarly, representation was in long use in the colonies and states—as in Great Britain—less from theory than from necessity. That political science identified these institutions as valuable protections for liberty encouraged the Framers to retain and improve upon them, but not to invent or impose them “from scratch,” as Seitz-Wald says. He fundamentally mistakes science as a causal rather than an explanatory variable in these events.
This is not to say Americans should not be open to constitutional reform. There is a fine line between constitutional veneration and constitutional chauvinism, and doubtless we have been known to plant a foot on each side. But the motive for reform ought to be genuine systemic need, not passing frustration, and its manner ought to be gradual. Building a constitutional order is not like launching an Internet start-up: Google-funded resources are surely valuable, but they are also wholly insufficient. The wisdom of generations, seasoned by experience, is also required. The Framers had both. Those who would presume to improve on their work would do well to emulate their method.