How Do We Make A Better Constitution?

Next Friday, September 17th Americans will be celebrating Constitution Day, a holiday established by the late Senator Byrd in 2004 which requires all educational institutions that receive federal money to honor the day in which the Constitution was signed. For some people this day is a time to celebrate, have parades, and to generally feel proud of our system of constitutional government and America itself. While there is a lot to be proud of, for example the Framers of the constitution created a document that set up our governing legal principles, which have remained (with a few important changes) political stable since the Civil War. However, having yearly discussions about the Constitution centered on the day of its signing requires more of us than flag waving or listening to patriotic speeches. As the late Supreme Court Justice Thurgood Marshall stated in his remarks in 1987, which marked the bicentennial of the constitution:

Patriotic feelings will surely swell, prompting proud proclamations of the wisdom, foresight, and sense of justice shared by the Framers and reflected in a written document now yellowed with age. This is unfortunate–not the patriotism itself, but the tendency for the celebration to oversimplify, and overlook the many other events that have been instrumental to our achievements as a nation. The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the “more perfect Union” it is said we now enjoy. I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite “The Constitution,” they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.

Marshall then goes on to list important evolutionary changes to what “We the people” meant in 1787 and at later dates in American history. This includes the fact that blacks, women, and the poor could not participate in the conception of “we the people” not even in civic rights as basic as voting in 1787. For those who argue that the Constitution was simply a construction of its times, Marshall has this to say:

…the effects of the Framers’ compromise have remained for generations….It took a bloody civil war before the l3th Amendment could be adopted to abolish slavery, though not the consequences slavery would have for future Americans.

As Marshall points out, after the Civil War, the Constitution was profoundly changed especially with the important addition of the 14th amendment. He adds:

In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws. And yet almost another century would pass before any significant recognition was obtained of the rights of black Americans to share equally even in such basic opportunities as education, housing, and employment, and to have their votes counted, and counted equally. In the meantime, blacks joined America’s military to fight its wars and invested untold hours working in its factories and on its farms, contributing to the development of this country’s magnificent wealth and waiting to share in its prosperity.

According to Marshall, the importance of examining the Constitution from a critical perspective is the role that it has had in determining the status of blacks in America. He states,

What is striking is the role legal principles have played throughout America’s history in determining the condition of Negroes. They were enslaved by law, emancipated by law, disenfranchised and segregated by law; and, finally, they have begun to win equality by law. Along the way, new constitutional principles have emerged to meet the challenges of a changing society. The progress has been dramatic, and it will continue.

Rather than looking at our bicentennial as a day to celebrate the Framers, Marshall argues that the credit for the important changes that made the Constitution better do not belong with the Framers. Rather he states, “It belongs to those who refused to acquiesce in outdated notions of “liberty,” “justice,” and “equality,” and who strived to better them.” In his concluding remarks on the bicentennial anniversary of the Constitution he argues:

And so we must be careful, when focusing on the events which took place in Philadelphia two centuries ago, that we not overlook the momentous events which followed, and thereby lose our proper sense of perspective….If we seek, instead, a sensitive understanding of the Constitution’s inherent defects, and its promising evolution through 200 years of history, the celebration of the “Miracle at Philadelphia” will, in my view, be a far more meaningful and humbling experience. We will see that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making….I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.

Similarly to Marshall’s critical reflection of the bicentennial of the Constitution, I believe Constitution Day is a day to reflecting on current notions of liberty, justice, and equality as found in our most significant legal document that has established our governing principles and structure for 223 years now. I believe the purpose of Constitution Day is to spend some time reflecting on the important constitutional questions and issues of the day. So, today I’d like to ask the question: How do we make a better Constitution for all Americans? Stated differently, what do we have left to do to truly create a better democracy in America? If we would like to continue to live up to our dearest beliefs we must continually find ways to improve our society with expanded notions of “we the people” in America. So, during Constitution day I ask us to consider what we still have left to do to improve upon our ideals and principles as a nation? In thinking about how we make a better Constitution, I would like to focus on two points. First, how do we expand liberty and justice through contemporary public policy issues with constitutional implications? Second, how do we make the interpretation of our Constitution more representative of American society?

First, it is important to examine which parts of our society aren’t working very well right now and to consider the extent that the structure and content of our constitution contribute to the dysfunction. Looking at ways to expand our values of liberty and justice for us all by focusing on public policy priorities, it helps to begin with a definition of public policy. Associate Vice Provost for Faculty Advancement and Russell F. Stark University Professor at the University of Washington, Luis Fraga states, “(p)ublic policy is the primary way in which Americans have always demonstrated their commitment to each other.” What should some of these commitments to each other entail?In 1944 Franklin Delano Roosevelt considered this and proposed a Second Bill of Rights which focused on increasing opportunity and security for all Americans. FDR stated:

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. Necessitous men are not free men. People who are hungry and out of a job are the stuff of which dictatorships are made. In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all – regardless of station, race, or creed.

For FDR this included: The right to a good job that allows one to earn enough to have the basic necessities to live a good life. It also included the right to a good education, where one’s children could go to school free to learn and not burdened by poverty, hunger, or fear of violence. It also included fair business practices for entrepreneurs large and small, and the right to adequate medical care, and a decent home for all families. These are just a few of the goals FDR proposed in his Second Bill of Rights just months before he died. While it is another conversation to see just how these ideas could be written into the Constitution if FDR had lived to push his policies through, and even harder to determine how these public policy commitments would be implemented and later interpreted, they are still ideals worth discussing. For example, what does it say about our current notions of justice and equality that we still largely have a Constitution based on the beliefs that opportunity and security are about some sort of “survival of the fittest” notion? For example what does our Constitution say about the right of education? Nothing. In other countries with the capacity to do so, there is a greater commitment to economic and social rights than in the US. For example, the European Social Charter, rewritten in 1996 includes the right to housing, health, education, employment, legal and social protection, and non-discrimination to name a few.
These important questions were being asked by our 32 president who believed we must keep improving our commitments and values to one another through our Constitution with a Second Bill of Rights.
Another way to consider how to make our Constitution better is to expand the interpretation of what it means. Stated differently, how can the meaning of the Constitution include perspectives from more than just the 98 percent elite white male input that has gone into it thus far? Marbury vs Madison established judicial review by the Supreme Court. Yet, who has made up the Supreme Court throughout our history? How many ordinary Americans, especially the white working class, women, and people of color have ever had real representation of their experiences and views on the Supreme Court? Shouldn’t we be a little concerned that we are so lacking in representation in our most powerful unelected political body? One way to make our Constitution better is to have the current interpretation of our most important constitutional questions be more representative, at a minimum if we are to be a real democracy. Surely we can find excellent legal minds among ordinary folks who have “pulled themselves up by their bootstraps” and achieved a university and then later a legal education. It shouldn’t take an exclusively ivy league path (which is as much a reflection of parents’ socioeconomic status as it is of talent and ability) to play a part in this important institution. Since our founding we have only had three people of color ever sit on our most powerful and unelected political body. Only one woman of color, no Asians, Native Americans, Mexican Americans, black women, etc….. This is the body that interprets and extends the Constitution for the modern era. Yet it is still 67 percent white men, and white men only make up 35 percent of the US population now. So, the supreme court is a very unrepresentative body, and this is the body interpreting the Constitution for the contemporary era.

In attempting to articulate the elements of how to make a better Constitution, I’m really talking about how to make a more just, equitable, and inclusive society. Looking to our original principles that have characterize our nations can provide the building blocks on which we can continue to improve America. My ideas for a better Constitution are based on the belief that we can continue to make society better through sound policy commitments such as detailed by FDR and through making the supreme court justices charged with determining not only how to interpret the Constitution but what issues to focus on be more representative of America.

We have come a long way from what was established by the Framers 223 years ago in our Constitution. “We the people” now includes more of us than ever before. Yet we still have a long way to go for full social and political incorporation—especially among the poor, immigrants, and among people of color. The principles of “establishing justice,” or “the blessings of liberty” that are found in the preamble of the Constitution are really good ones. However, we must have the wisdom and courage to continue to seek ways to improve our government, our legal structure, our commitments to one another by extending the promise of them to more people in our society. It is my hope that my students, my children, and new immigrants to our community will live in a country that continues to strive for improvement. As long as we do this critically and lovingly we have a good reason to be proud to call America our home.