Why I Still Revere an Imperfect Constitution

Recognizing that the U.S. Constitution is imperfect and rejecting Constitutional originalism are not reasons to throw the document out. Let me explain some of the reasons that I think the Constitution does need to be defended as the foundation of our government and how I think we can do so.


1. Its survival. The United States has the longest existing written constitution in the modern world. For more than 200 years it has proved sufficiently applicable and adaptable to serve as the foundation of our government. That’s no small feat and suggests that its authors created something quite remarkable. Unless we can be certain we can do better (and how could we, really) we don’t have any business replacing it wholesale. Even changes that might seem obviously good should be looked on with a degree of skepticism and plenty of critical thinking.

2. The system of amendments and improvability. A big part of the reason that the Constitution has made it this long is that it is adaptable. The Bill of Rights itself was a set of amendments designed to ensure that the new, powerful federal government would protect individual liberties. The Reconstruction Amendments (13-15) extended those liberties to the newly freed slaves, in part correcting America’s original sin. Subsequent amendments expanded the franchise and improved the structure of the federal government. Because of the amendment process, the Constitution continues to be relevant and we enjoy much broader liberties. We also have a body, the Supreme Court, with the responsibility to interpret the document for our day.

3. Constraints to the speed of change. This is where my conservative streak comes into play. I think profound change should take time. This is especially true when it comes to the basic principles of our government. The Constitution acts as a brake on the speed with which our fundamental law can change. Sometimes that slowness can be excruciating, but I think healthy change takes time. This is one of the things that separates me from the radicals in either party. And I think the Supreme Court should contribute to this slowness by including past precedent in their decision making. They don’t always have to rigidly follow it, but doing so should be a key concern.

4. Constraints on the power of majorities. The Constitution is a check on democracy. It sets forward laws that can’t be amended without a complex super-majority involving both legislative chambers of the federal government and at least three-fourths of the states (through their legislatures or special conventions). Even a strong majority is in some way constrained by a social compact that protects the rights of the minority. Here again I think the un-elected Supreme Court should play a role as the branch most insulated from the whims of the majority.

Because I regard the Constitution (as modified over 200 years) to represent a robust set of protections to the rights of all citizens, I’m glad that our founding document constrains majorities in this regard. Though, for that to work, there will have to be some members of any political majority (and the Supreme Court) who will put the preservation of the Constitution above their own ideological preferences. Respecting precedents and putting the health of our government institutions above personal preference is a central tenet of political moderation.


One of the questions I would most like to ask presidential candidates is this: “What is one public policy decision that you would like to make that you cannot or would not because you also believe it is against the Constitution?” It’s all well and good to say they love the Constitution when they think it always accords with their views. It’s quite another to say, “I think X would be a grand idea, but I also understand that the Constitution prohibits that, so I won’t do it.”

2 Responses to Why I Still Revere an Imperfect Constitution
  1. Elizabeth
    March 24, 2012 | 2:29 pm

    Oooh, that’s a good question. What would YOU answer?

    • Jason
      March 24, 2012 | 3:50 pm

      Mostly foreign policy actions come to mind: I think it is easy to see why a president would feel the need to indefinitely detain prisoners at Guantanamo or assassinate American citizens directing terrorism from abroad, but I’m not convinced that either of those is in keeping with the Constitution.

      Here’s a more concrete domestic policy example: same-sex marriage. I favor it, but I wouldn’t impose it at the federal level because I think regulating marriage is one of the powers reserved to the states.