Two points about Ollie’s May 25 post (“I Could Quibble, So I Will”): First, in mentioning slavery I was not trying to delegitimize the Constitution by connecting it to slavery. I was merely pointing out that there were sectional differences that made many of the participants at the Constitutional Convention prefer a weak central government, and slavery was one of the most divisive of those differences. You only have to read Madison’s Journal to see how strongly opposed many of the Conventioneers, including Madison, were to the Peculiar Institution. But they realized that nothing they did in Philadelphia could end it, for a Constitution that outlawed slavery would not be ratified by a sufficient number of states.
In any case, I don’t want to “delegitimize” the Constitution. For its time it was a nifty piece of work. How many other countries in 1789 had a body as powerful and democratic as the House of Representatives? My argument is simply that times have changed, and what worked well enough for 1789 may not work for 2014. Michael Jordan was a great basketball player, but he wouldn’t be much help to an NBA team today.
Second, Ollie said that the Constitution has been amended many times, the implication being that popularly-backed amendments should not be too difficult to effect. In fact, the Constitution has been amended 27 times in the last 225 years. But the first 10 of these amendments (our Bill of Rights) happened at the very start as part of the ratification bargain. And it took a Civil War to effect three others (#13 through #15).
That leaves 14 amendment adopted through normal processes, or about one every 16 years. Of these only three were truly important—the income tax (#16), direct election of senators (#17), and women’s suffrage (#19), all ratified in the period 1913-1920. Of somewhat lesser importance are the two-term limit for Presidents (#22), giving DC residents the vote for President (#23), abolishing poll taxes (#24), and lowering the voting age to 18 (#26). Of the remainder, #21 repealed #18 (Prohibition), and the remaining five addressed technical problems. Not a particularly impressive record for two-and-a-quarter centuries.
My differences with Ollie shouldn’t obscure the larger point on which we agree: On some critical issues, the people who wrote the Constitution (including the amendments) didn’t mean what the courts currently say they meant. I tend to think the distortion was inevitable and in some cases beneficial, Ollie not so much. But about the true meaning of the Constitution, and the poverty of the Supreme Court’s reasoning on Constitutional issues, I think we are in substantial agreement.