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