If 'consent of the governed' doesn't seem to fit today, blame the Constitution.
Similarly, it is telling that Abraham Lincoln began the 1863 Gettysburg Address -- the greatest speech in American history -- with the reference to "four score and seven years ago." That dated the beginning of the "new nation" as 1776. Lincoln was suggesting that the Constitution of 1787 is distinctly secondary to the Declaration in terms of constituting American national identity.
Indeed, Lincoln venerated the Declaration in a way that he did not venerate the Constitution that he took an oath to "support, protect and defend." Legal historians argue to this day about the extent to which Lincoln was fully faithful to his oath, but it really does not matter. No one believes that the Lincoln Memorial serves as the central temple of American civil religion because of his lawyerly devotion to the Constitution.
Instead, he is celebrated, save by neo-Confederates, for having preserved the American union declared in 1776 and, of course, serving as the Great Emancipator (regardless of the fact that the Emancipation Proclamation itself raises delicate constitutional questions).
For Lincoln, the central vision of the Declaration was its commitment to human equality, which obviously delegitimated slavery, and the centrality of "consent of the governed." Thus he concluded his speech in Gettysburg by invoking government not only "for the people," which might be achieved by a "benevolent despot," but also government "of and by" the people.
Consider, then, the implications of a 2011 Rasmussen poll finding that less than one in five Americans believe that the current national government actually meets whatever tests are required to constitute "consent of the governed." Many other polls could be cited to demonstrate the almost staggering "disapproval" of our basic institutions, including, most dramatically, Congress.
One suspects that had public opinion polling been available in 1776, greater percentages of colonists might well have expressed support for the government of King George III.
But with independence came the necessity to construct functioning governments for the American states and, crucially, the new national government. America's first "constitution" was the Articles of Confederation, ratified by the final state in 1781. By 1787, it was widely (though certainly not unanimously) thought to be a disaster, having created a far-too-weak national government.
The Philadelphia Convention was called to create a new and better form of government. There was one great problem, though: Article XIII explicitly indicated that the only way the Articles could be amended was by unanimous consent of the legislatures of the 13 states. That had proved a fatal hurdle to needed changes.
Did this stop the framers? Definitely not. From one perspective, the most important article in the new Constitution was Article VII, which stated that the new Constitution would come into effect upon ratification by nine states. It did not matter that Rhode Island (as well as North Carolina) had not ratified the new Constitution when George Washington took office on April 30, 1789. In an important essay of "The Federalist," James Madison defended the decision of the framers to ignore Article XIII. It was, he argued, far more important to preserve the Union, the nation forged in the Revolutionary War, than to adhere to the basically dysfunctional Articles of Confederation.
Most of us, I presume, applaud both Washington, the president of the convention, and Madison for deciding that there were really more important things to do than remaining tethered to the commands of the Articles. Part of the success of their enterprise is that the Articles have almost disappeared from the consciousness of even well-educated Americans.
This ignorance is unfortunate. We tend to forget that the point of the Constitution, like the Articles before it, is to achieve the great goals that brought (and presumably still brings) Americans together in a common union. The greatest lesson taught us by the framers is that Americans must think for themselves -- and to ask if they are in fact being well-served by existing frames of government.
Why is all of this relevant today? As already suggested, most Americans today are significantly alienated from (at least) their national government. Explanations have been given for this reality by pundits across the political spectrum. What is alarmingly lacking, though, is recognition that the Constitution itself may, like the Articles before it, bear at least some of the blame.
The framers created a system that was fundamentally designed to make it difficult for government to respond effectively to the great issues of the day. For a bill to become a law, for example, requires the assent not only of a House of Representatives and Senate that may be in fundamental conflict, but also the signature of the president, who may have equally fundamental differences even with a relatively united Congress. To be sure, vetoes can be overridden, but they rarely are.
Moreover, the 1787 Constitution is basically the most difficult-to-amend constitution in the world.
We live under a set of political structures that is remarkably similar to those set out in the 1787 Constitution -- even if in important ways they deprive us of a government that meets the test set out in the Gettysburg Address.
As we prepare to celebrate Independence Day, we might ask ourselves whether we are really well-served by the unamended 1787 document drafted in Philadelphia. The Constitution is merely a means to the overwhelmingly important end of achieving a government that truly merits our consent. It is past time for a national conversation about whether the Constitution needs fundamental changes and, if so, how best to achieve them.
Sanford Levinson holds a chair in law and is a professor of government at the University of Texas at Austin. He wrote this article for the Free Lance-Star of Fredericksburg, Va.
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