Why We Should Be Arguing More Over the Constitution

The fight over big versus small government is what defines our country, but both Democrats and Republicans have wimped out

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The Constitution turned 225 yesterday, and this week will be full of celebrations both solemn and stylish. As a civics nerd of the first order, I delight in every minute of Constitution Week. I wonder, though: what are we doing when we celebrate it?

We of course commemorate a daring experiment, what author and Yale law scholar Akhil Amar calls “the hinge point of history.” We restate the purposes of the Preamble. We cheer the simple fact that the Constitution is still around. But it’s easy to forget, amidst the fanfare and rhetoric, that celebration isn’t whgat the Constitution actually asks of us.

(MORE: Cover Story: One Document, Under Siege)

A few days before the anniversary, I attended an extraordinary public conversation between Justice Clarence Thomas and Professor Amar. I almost never agree with Thomas’ court opinions. Yet I found myself that night in full agreement when he declared that “the Constitution isn’t a document; it’s an argument.” It’s not a trophy to gaze at reverently. It’s a football, to grasp tightly and wrap your arms around as others smash into you and try to pry it loose.

From the Framing to the present day, there has been a fight in America — America has been a fight — between those who believe a strong national state ensures liberty and those who fear it stifles it. The Federalists and Anti-Federalists defined the original terms. The Civil War generation had the contest in blood. Much of rest of the time, from central banking to Social Security, it has been bitter but nonviolent.

(MORE: John Roberts’ Play for History)

What’s troubling today is that both sides have gotten lazy in their case-making. Republicans like to rail against big government but are generally content to bark not bite. Mitt Romney’s recent gaffe notwithstanding, few politicians are willing to call Americans a nation of moochers; even fewer will spell out workable plans to dismantle (let alone replace) the modern state.

Democrats, too, are acutely aware that “We the People” like both government programs and anti-government rhetoric. So they’ve become risk-averse defenders of the New Deal and Great Society edifice, offering little of the nation-building vigor and vision of the first Federalists or their heirs like Lincoln and the Roosevelts.

(MORE: The Cult of the Constitution)

We’re told this election offers a stark choice between competing visions of government’s role. But let’s be honest. This campaign’s ads and sound bites are a far cry from the Federalist Papers. We need a smarter, sharper argument. It’s not enough for conservatives to inveigh against Obamacare: spell out an affordable path to universal health care that doesn’t require an active state. It’s not enough for liberals to decry the concentration of wealth: spell out an agenda to revive the middle class that’s not just doubling down on current programs. And it’s not enough to stay on a “big vs. small” axis: both sides must reimagine government for a networked age.

What we celebrate this week is the day the Convention approved the Constitution. But remember, ratification didn’t come until after many months of debate, in state after state, among citizens who’d read and thought about every clause of the document. What’s government for? Two and a quarter centuries later, that question still demands a citizenry literate in civics. If we want to honor the Constitution truly, we should fight over it like Framers.

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John Parks
John Parks

The constitution is a contract among the several states defining the functions, authority, powers, duties and responsibilities of the various element of a national governmental organization.

We have not done very well in following it.


Take for example the creation of American currency. Congress has the authority and power to issue the nations currency and to regulate its value. There is no provision to delegate that sovereign authority of the U.S. to a privately owned commercial enterprise, the Federal Reserve system, and mandate that its currency be accepted as legal tender for all debts both public and private. Furthermore, there is no provision to transfer the authority to regulate the value of money from the legislative branch of government to the executive branch without amending the Constitution.


The electoral college needs to go.  Corporation rights need to be limited.  Government regulation needs to be tightened in some areas, like big banking, and loosened for small business.

Passing amendments is probably impossible in today's political climate.

John David Deatherage
John David Deatherage

What would the framers think of the Patriot Act, FISA Courts, or administrative subpoenas (nonjudicial)?   Or a president choosing to not enforce federal immigration laws.  How far we have strayed.... 

Papa Foote
Papa Foote

Beautiful, I love ERIC LIU's thoughtful thinking!

-The Old Mountain Goat- wants "YOU" to read it - it's "short and right for everyone"!


Romney and Ryan; should be committed to an asylum --

for the religiously insane!

Romney has impaled himself -- with a bogus cross!

Romney as President; would mean the darkest amp;

meanest period in the United States of America’s history.  Homophobic -- witchcraft would rule the

government from Rome amp; Salt Lake City …!


The Tripoli Treaty of 1797 between the US and the Barbary States,

unanimously approved by the US Senate on June 10, 1797, specifically states

that the US is NOT a Christian nation. At that time, the US government was

still dominated by those who are referred to today as the "Founding

Fathers". ARTICLE 11: As the government of the United States of America is

not in any sense founded on the Christian Religion...!


F. Kennedy September 12, 1960, address to the Greater Houston

Ministerial Association: I believe in an America where the separation of church

and state is absolute--where no Catholic prelate would tell the President

(should he be Catholic) how to act, and no Protestant minister would tell his

parishioners for whom to vote--where no church or church school is granted any

public funds or political preference--and where no man is denied public office

merely because his religion differs from the President who might appoint him or

the people who might elect him.

Separation of church and

state was enshrined in the 1st Amendment to the U.S. Constitution, which

states that “Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof.” 

What the religious radicals don't tell people, and what,

tragically, many Americans apparently don't know, is that when it comes to

determining what the laws of the United States mean, the only document that

matters is the Consti­tution. The Constitution, a completely secular document,

contains no references to God, Jesus or Christianity. 




Spot on, my friend ! Well said.



The Constitution no longer governs America.  America is now governed by the 1%.


 Without the Constitution, we're left with only two choices.  Oligarchy or mob rule.  Neither really appeals to me. 


 Then you and the rest of us are in real trouble.  Right now we are in a third choice without the Constitution and that's Plutocracy. 


The Constitution was never intended to be a stone tablet.  If it weren't for amendments, we'd never have the Bill of Rights or universal suffrage.  As a living and developing document, the Constitution provided a solid foundation for all other laws. 

However, over the last few decades, the Constitution has ceased to evolve.   People argue that anything written by 18th Century politicians who

didn't even have electric lights couldn't possibly be useful in the age

of Facebook.  Instead of amending the Constitution to match the development of our nation, we now ignore it.   The longer we go without updating the Constitution, the less relevant it becomes.

And that's the real danger.  When the Constitution becomes a 'guideline' instead of Supreme Law, we become subject to the whims of those in charge.  Even if Democracy holds, the rights of any minority are not protected from the tyranny of the majority.  


 While I understand your sentiments, and for the most part agree with them, the fact is, the Constitution CAME with the first ten amendments.  That's how it was originally written and ratified.  The first ten amendments were called the bill of rights. 

That is the kind of thing the author of the article was saying - people need to understand the document which lays out our government and rights.  And one of the most important things to realize is, as the author wrote, that it is NOT a stone tablet.  It's meant to evolve and change with the times simply because no one can foresee all of the legal and governmental needs of an evolving society.

The greatest case in point for the need for changing the Constitution is the second amendment.  Originally written as a means to defend the nation in times of crisis using the long-established English tradition of the citizen soldier, because the nascent United States had no way to finance and maintain a standing army, it has become a mockery of the original intention.   All most people can quote of it is the "right to keep and bear arms shall not be infringed"part while  completely ignoring the first part which says "A well regulated militia, being necessary to the security of a free state..."

That the second amendment was originally written to provide for the defense of the United States comes as a shock to most people.  Most of those who only know the second half of what the second amendment says think it means to FIGHT the United States.

Some have argued that our founding fathers wanted the government afraid of its citizens.  For the most part, they were always talking about non-representative governments - monarchies rather than democracies.  At the time, democracy was pretty much a wild experiment.  At no time did any of them ever say anything about taking up arms against a duly elected government because for the most part, there weren't any.

But the obsolescence of the second amendment is most starkly highlighted by the fact the United States now has a well-equipped, modern army whose firepower exceeds that of the supposed "citizen" by so many orders of magnitude that the only way an insurrection COULD overthrow the government is by the will of the people - which would then obviate the need for an insurrection.  This is a democracy.  The people vote for what they want and if a majority want change, they get it.  Despite the paranoia of those who think the government is "out to get them", the fact is, the people decide who represents them through majority vote.

Another aspect of the obsolescence of the second amendment is the firepower of modern weaponry.  A supply-supported platoon of modern soldiers could have fought the Revolutionary War, and won, inside of six months using no more than what is available over the counter at most gun shops.  The founding fathers never could have imagined the carnage that kind of weaponry would have in the hands of the irresponsible.  With firearms ownership a right instead of a privilege, one can't regulate who gets them without stripping all the rights from the individual.

Finally, the need for the citizen soldier has been supplanted over time by the National Guard.  We no longer need citizens to bring their own firearms to fight with (the logistics of that proved to be a major headache during the civil war and was phased out entirely before World War One).  We no longer need the average citizen to drill in a militia.  We have a national guard where volunteers stand ready to defend the country and a well-equipped standing army ready to meet any challenge.

The bottom line here is that the second amendment is an obsolete relic of an older and more needy America.  I'm not against gun ownership at all.  I'm against the RIGHT to it because too many people who should not get a gun can and do get them quite easily with absolutely no accountability or responsibility until after tragedy happens.

But as the article said, the constitution is a living document.  It's meant to change, to evolve, to grow in order to meet the needs of we the people.  Holding onto all of the rights and provisions contained in it at a time when doing so needlessly costs tens of thousands of lives a year seems to me to be one of the best reasons to change it to meet the needs of today's society.


 I'm all for amendments...provided they follow the proper process.  Don't like the 2nd amendment?  Fine.  Follow the process for taking it out.  Don't like the commerce clause?  Follow the process to re-write it.   Until that happens, follow the Constitution as written.  To do otherwise is to risk all your Constitutional rights to the whims of whoever is in charge.

We've gotten lazy by thinking we can do what we want without bothering to actually amend the document.  That laziness will bite us in the backside when we get a Putin or Chavez in charge.


Actually, the Constitution did not come with the first ten amendments. That's why they are called amendments, not articles.

The Constitution, after a very heated debate among the representatives of the ratifying states, was approved without those amendments.  It was ratified by the states with the understanding that some amendments would be added to cover gaps they saw.  Some states submitted long lists, 20 or 30 amendments they wanted added. In the end, a group of 10 amendments was decided on and added after the Constitution was in effect.

Some states, like North Carolina, didn't approve it until  after it was in effect and the amendments added.  (I know this because one of my ancestors was on the North Carolina ratification committee that refused the Constitution as it was written and sent it back to Washington.)

Dan Bruce
Dan Bruce

American government exists to do what individuals cannot do for themselves as individuals. The Constitution thus makes us one big family, doing the things a family is supposed to do for its members. That's what "We the people ..." means.


The Constitution does not make us a big family, it just establishes a government, with fairly specific and limited powers.  The view of the Founders on government was explicitly stated in the Declaration of Independence: "That to secure these rights, Governments are instituted among Men..."  To secure these rights.  Not to make us happy, or rich, or safe, but to secure our rights.

John Hoover
John Hoover

Wow, I think the two of you just managed to lay out the opposing arguments for both sides, each in a single post.

Dan Bruce
Dan Bruce

So, we should abandon "E pluribus unum ..." as our motto? And we should forget our national creed of "life, liberty, and the pursuit of happiness" as set forth in the Declaration. Okay, that might work, then we would all be united as Rightwing Republicans.