Constitutional longevity​ does not equal democratic success​

Common assumptions about constitutions insist that the longer such documents stay in place, the more successful they are. But the longevity of America’s 1789 document is thoroughly testing this notion.

In 2009 a trio of legal academics found that the average national constitution lasts 19 years. That’s a significant — if not startling — finding considering that the U.S. Constitution is over two-and-a-quarter centuries old (228 years, for all those constitutional buffs out there). But should constitutions be written to withstand not only generational changes, but civil war, world wars, and an eclectic array of power-hungry presidents? Arguably not. Thomas Jefferson, for example, thought that constitutions should be replaced after 19 years. Perhaps he was onto something.

{mosads}The idea that constitutional longevity equates to constitutional success becomes more strained with each passing day. The republic articulated in the U.S. Constitution in many ways does not resemble the country today, and many of the operating parts are noticeably flawed. Its continued use not only serves contemporary America poorly but threatens the document’s legacy as one of the most important building blocks of democracy. The longer it stays in operation the higher the likelihood it will be perceived as a failure, rather than celebrated for its impressive endurance.

So, what are the problems in terms of its democratic legacy?

For one, the textual versus practical importance of the branches now stands widely out of balance. The Constitution begins Article 1 with the legislature — signifying its preeminent status — and devotes the most text to this branch: over 2,250 words, compared to 1,025 for the Executive and 377 words for the Judiciary. Thus, almost 50 percent of its text is devoted to the legislature, compared to just over 20 percent to the Executive and under 10 percent to the Judiciary. But in this day and age, Congress arguably is the least powerful branch in operation. Indeed, citizens have taken notice, as an average of 70 to 80 percent of American citizens regularly disapprove of the most representative body in the nation. Who could possibly classify that as constitutional success?

The branch the Constitution devotes the least amount of text to, the Judiciary, currently wields the most power, being able to police Executive behavior and also strike down laws. In a now absurd and comical twist of irony, Alexander Hamilton famously deemed this to be the “least dangerous” of all the branches when the Constitution was being written. A better description for contemporary times would be “least representative” — the gender and ethnic breakdown at both the state and federal level remains embarrassing (and the same is true for SCOTUS law clerks). Yet the Judiciary defines virtually every major legal, political, and cultural dimension of American life. When was the last time the Supreme Court docket wasn’t filled with “blockbuster” cases? The pending decision in the gerrymandering case Gill v. Whitford, for example, carries enormous political implications.

Although the U.S. Constitution begins with “we the people,” it does not explicitly mention hugely important constitutional principles such as “democracy,” “rule of law” and the “separation of powers.” This is not insignificant. Many scholars have documented the declining influence of the Constitution and the U.S. Bill of Rights as models for other constitutional democracies. A new constitutional settlement could include these things, and even go beyond them. Formally incorporating a right to privacy in the digital age would be of paramount concern. Or perhaps inserting judicial review — still absent from America’s founding document — would benefit the rule of law.  

The Constitution even incorporates anti-democratic features that clash with “the people” being sovereign and remain difficult to justify. Infamously, it employs a presidential electoral system that twice in the past five presidential elections has produced a winner who did not carry the popular vote of the American electorate. The current president lost the popular vote by almost 3 million votes (2,868,691 to be exact). And yet there is no sustained national conversation on the legitimacy of the Electoral College.

Collectively, these anomalies seriously threaten the legacy of the Constitution, a document built on its democratic credentials.  

The American state certainly would not be over if the Constitution were replaced. There could (and should) still be a “Constitution Day” that celebrates the 1789 Constitution. No constitution ever really “dies.” Any subsequent constitution would use previous constitutions to ascertain what works and what doesn’t, and would build on those ideas.

The Constitution of 1789 should always be recognized as one of the most influential legal and democratic documents ever constructed. But let’s not confuse constitutional longevity with constitutional success. If the 1789 Constitution remains in force, its legacy will be diminished, and so will the operation of democracy in the United States.

Brian Christopher Jones is a lecturer in law at the University of Dundee School of Law. He has published widely in British, American and Asian law journals, and researches issues in comparative public law and constitutional theory.