Is the US Constitution unconstitutional?

The American plan of government, drafted in the summer of 1787 and ratified the following June, opens with a 52-word statement of purpose:

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“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.”

One could parse those words nearly endlessly.  “We the people of the United States” is ambiguous since it’s unclear if it refers to the people of the individual states or the nation as a whole, a minor technicality that would require an entire civil war to sort out.  Since “to form a more perfect union” is ungrammatical – there can’t be degrees of perfection – it’s unclear what it means or whether it means anything at all.

But the rest – “establish justice, insure domestic tranquility,” etc. – seems straight-forward enough.  The new republic, such phrases suggest, should be a place in which people are treated fairly and honestly and can live and work together in something approaching peace and harmony.  That doesn’t mean they have to wear a smiley face around the clock.  But it does mean that they shouldn’t go around blowing heads off with AR-15s.

Yet that is precisely what’s happening.  It happened in Uvalde, it happened in Buffalo, and it’s happening more recently in places like Philadelphia, Chattanooga, and other cities in which the body count many not be as high, but the bloodshed is just as horrific.

One reason it’s happening is constitutional, which is to say an expansive reading of the Second Amendment that has gained ground since the 1980s and 90s and has helped fuel a veritable explosion in firearms.  Sales have tripled over the last two decades to the point where there are now three guns in private hands for every two adults.  More than 45,000 gun fatalities occur each year as a consequence, five times more per-capita than in France, six times more than in Canada, 14 times more than in Australia, and 15 times more than in Germany.  So far this year, the US has seen twelve mass murders, defined as any incident in which four or more victims are killed, plus 249 mass shootings, defined as any incident in which four or more victims are killed or wounded.  Last weekend saw eleven mass shootings alone, the aforementioned incident in Philadelphia that left three people dead and a dozen wounded, a bar fight in Chattanooga that killed two more, a shooting in Saginaw, Michigan, that killed three and wounded two, and so on.

“Domestic tranquility” this is not.  Neither is it “promot[ing] the general welfare” or “secur[ing] the blessings of liberty to ourselves and our posterity” for the simple reason that the individuals who should enjoy such blessings are lying in pools of blood.  Rather than advancing the goals set forth in the Preamble, the part of the Constitution known as the Second Amendment is undermining them.

But that’s not all.  If “we the people” decide that the Second Amendment is no longer working the way we think it should, the solution is simple: fix it.  Just as there’s no reason to throw out a car when the radio is on the blink, there’s no reason to throw out an entire constitution when a certain section is malfunctioning.  But there’s a problem here as well.  The people can’t avail themselves of such a common-sense logic because another part is also dysfunctional, i.e. the amending clause set forth in Article V.  This is the section that says that changing so much as a comma in the sacred text requires the approval of two-thirds of each house of Congress plus three-fourths of the states.  The last is a killer since the effect is to give an unqualified veto to one-fourth-plus of the states – just 13 in all – even though they may represent as little as 4.4 percent of the population.

Since no one will have any trouble drawing up a list of 13 states guaranteed to just say no to altering the Second Amendment in the slightest, the problem is unfixable.  Even though the Preamble says it’s the people’s constitution, the people are powerless to change a provision that is causing their children to die.   

Uvalde highlighted two other problems: the stunning incompetence of the police and the absence of social or psychological services aimed at reaching out to troubled young people before they explode.  “We as a state … need to do a better job with mental health,” Texas Governor Greg Abbott said at a press conference the day after the massacre. But what Abbott forgot to mention is that, just a few weeks earlier, he slashed $211 million from the state mental-health budget even though Texas was already dead last in terms of access to mental-health care.

This is another outrage that the people should fix but can’t.  America’s hyper-federal system places such responsibilities firmly in the states and therefore limits the degree to which the people can intervene as a whole. This is absurd. But since updating such an outdated structure would also require constitutional reform, Article V says no to this as well.

The structure is rotten, yet nothing can be done – zero, nada, zilch — because the same rotten structure won’t permit it. But there’s a solution to this tautology: step outside it so as to act on the structure in its entirety. If the Constitution is riddled with problems, then the people use their constituent power to suspend it while they go over it with a fine-toothed comb to determine what, if anything, is worth saving and what’s not. To quote the Declaration of Independence, the people should “institute new government … in such form as to them shall seem most likely to effect their safety and happiness.” They should declare the Constitution unconstitutional, therefore, and design a new one better suited to carrying out the Preamble’s goals.

This is what the framers did in tossing out the Articles of Confederation, which were so counterproductive that the entire country was in “almost the last stage of national humiliation,” as Hamilton would later put it in the Federalist Papers.  Moreover, they disposed of the articles not according to the articles’ own rules, which required unanimous state consent for any constitutional change, but according to new rules that they made up on the spot. Today’s population could do the same by overhauling the Constitution according to new rules that they devise as well.

The result would not be a constitutional convention but a constituent assembly, which is completely different. Article V outlines what a constitutional convention would be like, and it makes clear that it would be elected by the states and that whatever it comes up with would be subject to the same two-thirds, three-fourths rule governing the rest of the amending process.  The problem of a 4.4-percent veto would thus remain.  But a constituent assembly is different. It would not act under the authority of Article V, but the Preamble, which says, in effect, that “we the people” can “ordain and establish” new constitutions to serve our purposes and toss old ones out the window when they are no longer serving such ends. As such, it would be elected by the people as a whole and would have complete and total authority over the Constitution in general. If 51 percent of such a body turns thumbs down on the Second Amendment, then out it goes.  If the democratic majority says no to checks and balances, separation of powers, and other such 18th-century rigmarole, then out they go too.  

The gun problem would be resolved in a flash, not constitutionally as the term is now understood, but democratically. America would get the clean democratic sweep it’s needed for generations.

This not something that some of us would like to happen.  To the contrary, it’s something that will happen if the country doesn’t first go plunging going over a cliff.  Otherwise, problems like guns, global warming, racial conflict, economic decay, you name it, will continue piling up until they reach a tipping point. Then society will collapse — not may, but will. If the people want to avoid such an outcome, they’ve got to take society in hand, not in part but in whole.

A new poll by the Wall Street Journal and the National Opinion Research Center at the University of Chicago shows what’s at stake.  The findings are grim.  Eighty-three percent of respondents described the economy as poor or “not so good,” 46 percent said they do not have a good chance of improving their standard of living, while 86 percent said that Americans are greatly divided when it comes to the most important values.  When pollsters asked respondents last year whether they expected those divisions to worsen over the next five years, a third said yes.  This time, the proportion was better than half.

“In the prior years that we’ve asked this question, there’s at least been some hope, a little bit more hope, that things might get better,” NORC VP Jennifer Benz said.  “That’s a key difference underlying all of this right now.”

Hope is vanishing thanks to an outmoded political structure shows itself as utterly inadequate to deal with the problems at hand.  This is very dangerous because if people are unable to come up with a democratic solution to what ails them, then they’ll opt for an authoritarian solution instead.  Democracy or barbarism – there is no alternative, as dear old Margaret Thatcher used to say.

3 thoughts on “Is the US Constitution unconstitutional?

  1. Thanks Dan. To your analysis I would add to the invocation of the principle of the Preamble and its echoing of the Declaration’s “alter or abolish” procedure, with the following: the clear precedent of Article Seven.

    Article Seven, in our current Constitution, is supreme law. It led to abolishing and replacing the first American Constitution of 1777, and the establishment of the 1787 second Constitution on a date we have not been taught: June 21st, 1788. That’s when the ninth state of New Hampshire ratified the then-proposed second constitution according to the single sentence of Article Seven:

    “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

    On that day, the first Constitution was abolished for the nine states that ratified.

    This was written in part because any combination of nine states constituted a majority of the people comprising the original 13. (I don’t have the demographics for that handy.)

    Furthermore, your rejection of the term “convention” and using instead “assembly” is apt and proper, not only because of Article Seven, but also because it falls under a guaranteed right in the First Amendment: the right of assembly.

    In the case of the assembly you propose, as a direct, more democratic alternative to the Article Five process for public officials, it follows Thomas Paine’s definition of a constitution in his 1792 book “The Rights of Man” whereby a constitution is NOT an agreement between the people and its government, BUT RATHER an agreement the people have with each other, to constitute our government to self-govern ourselves.

    Such an assembly could propose amendments or a new third constitution to ourselves to be ratified by the standard worldwide and in our states — a referendum by the democratic majority — in this case a national referendum. That is the same voting rule presumed and used in each of the state ratification assemblies between 1787 and 1792.

    Here are some dissenting opinions on terminology for further framing and discussion:

    A. I think that the longer phrase “Democratic People’s Constitutional Assembly” or DPCA for short, is clearer and more easily understood by most Americans than the accurate but less understandable term “constituent assembly.”

    B. “We the People” seems to me to refer collectively to the people of the new nation as a whole, not the states, because the earliest draft by James Wilson states “we the states….” It was changed when Article Seven specified only nine states are needed, and would initially comprise the United States of America if ratified. Plus the author of the “We the People…ordain and establish this Constitution of the United States of America” language — James Wilson — said exactly what the phrase meant to the Pennsylvania Ratification Assembly. Plus We the People was capitalized, suggesting a proper, collective mass noun.

    C. Your phrase “people of the individual states” seems not to be an entirely accurate contrast to “We the People” because it is identical in functional and demographic meaning to “We the People.” That’s because the people of the nation collectively were and are the same people who were residents of the states that ratified or later joined.

    D. I suggest the answer to the title’s question is arguably “no.” Rather, as Akhil Reed Amar has argued in “For the People,” the direct process, as you propose it, is perfectly legal, and constitutional, because of what you cite, the Preamble. And within our more expansive American Constitutional Tradition via the Declaration’s “alter or abolish” procedure, and via the document Jefferson derived it from, his friend George Mason’s Virginia Declaration of Rights. Plus James Wilson’s arguments for ratifying it in Pennsylvania in 1787, and his later majority rule legal opinions and articles.

    E. Plus it’s legal within our American Constitutional Tradition at the state level, where the resident voters in state after state bypassed and overruled state constitutional amending procedures for public officials — their Article 13 (1777) and Article Five (1787) equivalents — and proposed and ratified amendments and new state constitutions via majority voting rules. This is documented in Roger Sherman Hoars’ 1917 book “Constitutional Conventions.”

  2. I just did the arithmetic. It turns out that the nine smallest states accounted for only 47 of the population as of 1790. So ratification could conceivably have been a minority affair. As for whether “we the people” refers to Americans as a whole, it depends on which part of “United States” is emphasized. If it’s the first, then it suggests that “we the people” refers to the population of the entire union. If it’s the second, it suggests the people of New York, New Jersey, etc. who have come together in a federation of as yet indeterminate duration. The fact that United States was regarded as a plural noun seems to speak in favor of the latter, although admittedly the question is still far from clear. But that’s why Americans fought a civil war — to remove and an all the uncertainty once and for all.

    I’m also not crazy about submitting a proposed new constitution to a referendum for a variety of reasons. One is that referenda are unreliable while another is that the very fact of organizing one would lead to a dangerous vacuum of power. Who would be in charge while the process of drawing up a constitution, organizing a referendum, tallying up the results, etc. goes on? What happens if the referendum is defeated? Would the members simply pack their bags and go home, thereby compounding the power vacuum all the more? I would prefer to see the assembly follow the French model, i.e. declare itself a revolutionary government as it draws up a constitution and pledges to govern according to its principles. It should vow to hold an election in keeping with the schedule that the new document sets forth. If the people don’t like the results, they can vote the delegates out, whereupon the opposition will be saddled with the task of trying to come up with something better.

    • I think ANY direct approach for abolishing and replacing our second Constitution with a third one is difficult for many reasons, including all of your points, and more. How do we get the critical mass in terms of publicity and the funding of publicity — and crucially, the public will?

      As for a vacuum of power with a referendum for ratification (like Brexit or the Scottish independence vote), maybe. I don’t know the case data for the over 150 times our state constitutions were replaced by referenda. With our 230+ state constitutional conventions, I don’t know of any power vacuum examples. Do you? Maybe John Dinan would know, author of “The American State Constitutional Tradition.” My understanding if amendments or a new constitution don’t pass a referendum ratification vote, the status quo government remains in place after a defeat, and indeed, during proceedings of an assembly and a subsequent.

      I think there is no best set of procedures. Only the least worse.

      While a fully empowered constitutional assembly (DPCA or Constituent Assembly) is possible, and perhaps simple and desirable, I don’t know of the cases in recent practice at the state level in America where that has every once happened successfully or unsuccessfully. Maybe you do. I do know that referenda for ratification is standard practice. See this chart:

      https://ballotpedia.org/Forms_of_direct_democracy_in_the_American_states

      All of the cases listed use referenda. In fact, that method of ratification went without saying — a vote of the people with some variations such as double minorities for proposing amendments (typically 10 or 15 percent, perhaps from half of districts or counties) and some double majorities for ratification. Most referenda for ratification are simple majorities, like people are accustomed to, for example, for governor elections and most Senate races.

      For example, Montana’s Article 14 describes two ways of creating proposals for amendments, and one way for ratification of amendments — majority voting. And it describes three ways of calling a constitutional assembly (convention) legislative, initiative and periodic — all require referenda for ratification.

      Here is the ratification process in Montana for ratifying a proposed new constitution from an assembly (they call it a convention):

      https://leg.mt.gov/bills/2017/mca-update-112018/title_0000/article_0140/part_0010/section_0070/0000-0140-0010-0070.html

      Here are all of the provisions for amending or replacing the state Constitution:

      https://leg.mt.gov/bills/2017/mca-update-112018/title_0000/article_0140/part_0010/sections_index.html

      Here are details about state constitutional assemblies (conventions) across America:

      https://ballotpedia.org/State_constitutional_conventions

      Proposing that an assembly have power to decide — the French model — may be a great idea. But it is an old model. It isn’t practiced anywhere in America that I have seen. It may have been chosen in France in 1789 because of the difficulty of logistically having a referendum, much like our 1787-1790 ratification assemblies. So any argument in the real world for an all-powerful, potentially governing assembly has to deal with the fact that referenda are standard practice here, and in many countries.

      Plus, an all-powerful national constitutional assembly also has other problems, beyond its departure from standard American and global practice. These include some of the same problems you mention about referenda: “Who would be in charge while the process of drawing up a constitution, organizing a referendum, tallying up the results, etc. goes on?” Plus more: How are voters organized in an absence of any national parties? How is establishment oligarchy money kept out to prevent their takeover? How are new parties to arise for voters to choose assembly members, given the constitutionally driven two-party system?

      Other difficulties arise for a national DPCA/Constituent Assembly: how can voting be fair? How can it be funded? Do delegates campaign? With what voting rules? If delegates are chosen randomly by lot, by computer or semi-randomly from a smaller pool of volunteers like British Columbia or Ontario or Iceland, who organizes that?

      So either way, there are lots of difficulties to be dealt with.

      This is especially true because there are no existing, explicit procedures for constitutional amending or abolishing/replacing in our national second Constitution, only indirect text, principles, precedents. That’s why Akhil Reed Amar and Alan Hirsch wrote a mid-sized book about it: “For the People.” Plus Amar’s 52-page legal brief (The Consent of the Governed: Constitutional Amendment Outside Article V), which you’ve seen. Here is the link for anyone who wants to see that condensed legal argument:

      https://openyls.law.yale.edu/bitstream/handle/20.500.13051/5403/The_Consent_of_the_Governed____Constitutional_Amendment_Outside_Article_V.pdf?sequence=2

      Here is the link to “For the People”:

      I think everyone should read your blog and The Frozen Republic: How the Constitution Is Paralyzing Democracy:

      Plus a few related books by a small number of books and papers by other thinkers such as Sanford Levinson’s “Our Undemocratic Constitution”; Richard Pildes and Daryl Levinson’s “Separation of Parties, Not Powers”; George William Van Cleve’s “Making a New American Constitution”; and Michael Klarman’s “The Framers’ Coup.”

      Must we wait until there is virtually nothing left to lose? That seems excessively risky and not orderly.

      In 1992, James Carville said, “It’s the economy stupid.” Well, today in 2022, on the surface that’s true for the short term. But to get out of this national catastrophe, in the long run, we may want to admit, “It’s the political system, stupid.”

      SO, I commend you for bringing up this elusive, but obviously needed subject.

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