18 November 2015

Our Constitution, happily mangled

In May of 2014, I inadvertently placed an unpublished 6,300-word paper, “How to Think About the Constitution,” on ExpressO. The paper’s basic thrust is summarized on page 3:
“The most important fact about our written Constitution is that it is an inadequate framework for the modern American polity: Few of us would want to live under the government it describes. That the Constitution still works at all is due to a long history of the courts reading that document in ways its authors never contemplated.”
It’s customary to criticize such mangling of the Framers’ intentions, but I argued that such mangling is necessary if we are to have a functioning government. The Constitution is so difficult to amend that needed changes can only be forced through via textual misreading; the governmental machinery is thus greased with regular applications of hypocrisy. It’s an inescapable situation, but hardly optimal, as the courts (a) aren’t elected, and (b) can get things wrong.
If all this whets your interest, you can get the full story by going to http://works.bepress.com/howard_darmstadter/1/ and downloading a pdf.
—Howard Darmstadter

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