Constitutional rigidity

805UNLOCK“We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”  This was Thomas Jefferson’s famous blast at constitutional rigidity, set forth in a letter in 1816 to a Virginia lawyer named Samuel Kercheval.  Jefferson was one of the slipperiest men ever to occupy the White House, and his words often mean the opposite of what they might initially seem.  Nonetheless, what he seems to be saying here is that government, not only the individual office-holder but the actual structure, must change with the times.  This certainly makes sense.  But what if the coat that the grown man puts on is not only the same one he wore as a boy, but one that is half the size and getting smaller by the year?

This is the nub of the problem facing the U.S. constitutional system.  The amending clause in Article V states:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution … which … shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States….

Because three-fourths are needed for ratification, slightly more than one-fourth of the states can block any constitutional modification, no matter how minor or technical.  Back when there were just thirteen states, the one-fourth-plus rule meant that as few as four could wield a constitutional veto.  Since states at the time ranged from tiny enclaves like Rhode Island and Delaware to giant trans-Appalachian empires like Virginia and New York, it permitted as little as  9.7 percent of the population to just say no to the other 90.3.  This was unfair, of course.  But the same proviso today permits an even smaller portion of the population to do the same.  Just 13 of the 50 states can block any constitutional alteration, and while some of these states may look big on a map, they are demographically microscopic.  Thus, the 13 least populous states add up to just 4.2 percent of the total population, yet their veto power is no less intractable than it was in 1789.  No matter how much California or New York may kick and scream, Wyoming, Montana, the Dakotas, et al. will have their way according to Article V forever and ever.

This means  not only to squeezing into the same coat you wore as a child, but  one that is by now better than 50-percent smaller.  Moreover, the problem is worsening.  By the year 2030, the Census Bureau projects that the population of the thirteen smallest states will shrink to under four percent of the national total.  Plugging these numbers in, it  appears that constitutional rigidity will grow by some 11 percent.

This is intractable dictatorship by a tiny minority.  In a nutshell, it is why “we the people” are condemned to flail about helplessly in the face of guns, civil liberties abuses, and the amazing squalor on Capitol Hill.  The system is obviously broken and tiny special interests are able to hold the rest of the country to ransom, yet the opportunity to fix it, never very great to begin with, is fast diminishing.  “Give us the tools, and we will finish the job,” Churchill liked to say.  Yet even though the Constitution was made in the people’s name, it not only deprives them of the tools to fix their dysfunctional government, but is taking away the few they have remaining.  They are prisoners of a system that they supposedly created.

Systems that grow more resistant to change the more change is overdue do not end happily.  We’ve seen this movie before — in France in 1789, in Russia in 1917.  Forestalling change merely guarantees that it will be all the more furious when it finally arrives.

One thought on “Constitutional rigidity

  1. Happy to see you blogging now! I’m curious on this question of constitutional rigidity: Do you think the spate of popular revolts around the world recently which have tackled the constitutional question (with varying degrees of success), such as Venezuela, Ecuador, Egypt and now it seems, Brazil provide some lessons or perspective on how ordinary people can best get hold of and democratize an undemocratic constitution like our own?

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