Why We Need Our Constitution — and Need It Back

T oday is Constitution Day, the 239th anniversary of the signing of the Constitution to conclude the 1787 Constitutional Convention in Philadelphia. I have a controversial opinion: The Constitution is good, and we should keep it. We should also recognize that most of the ways in which its functioning is broken are the consequences of departing from the original design.

When the Framers met at Philadelphia, they had dueling challenges. On the one hand, the Revolution and the Articles of Confederation had struck a blow against centralized power. On the other hand, they left behind a Balkanized collection of 13 squabbling sovereigns (14, if you counted Vermont) with an ineffectual federal government. One consequence was trade protectionism that divided the states from one another (a legacy of British colonial barriers to trade between and among the colonies). So, how to create a federal government that would actually do the things only a national government can do — without losing the whole point of limiting centralization?

The result was nobody’s idea in particular. James Madison deserves as much as anyone the title of “Father of the Constitution,” but this was truly a compromise product among the ideas of 55 men from twelve states (Rhode Island stayed away), 39 of whom signed the finished product. Roger Sherman, James Wilson, Alexander Hamilton, Gouverneur Morris, and other delegates played key roles in particular parts of the design. None of it would have worked without George Washington’s presence as president of the convention, although Washington spoke only on one issue: He felt that the Constitution should explicitly limit the maximum size of House districts.

Among the delegates, 29 had fought in the Revolution. Five went on to serve on the Supreme Court: Chief Justices John Rutledge and Oliver Ellsworth and Justices James Wilson, John Blair, and William Paterson. Two (Washington and Madison) would become president, one (Elbridge Gerry) became vice president, and two (Rufus King and Charles Cotesworth Pinckney) were nominated for the presidency. Several others went on to serve as senators and governors. A little under half owned slaves. All were aware that no democratic republic of this size had ever endured in world history, and that there might not be a third chance to get it right.

Thankfully, we’ve never had to try again. Our Constitution is a tremendous success story, the oldest continuous written constitution in the world. Americans have tried only once since then to write a constitution spanning multiple states — the Confederate Constitution of 1861 — and it basically just took the original as a starting point and made a handful of changes, nearly all of them for the worse.

The Constitution is not foolproof. But it is very fool-resistant. It can survive one really bad man in the presidency, or even several of them in a row surrounded by a Congress full of knaves. The Biden and Trump administrations have presented similar but distinct challenges emanating from one end of Pennsylvania Avenue, while the other sits passively like a potted plant.

The biggest complaints we hear today are related: that the Senate filibuster combined with (and contributing to) the declining activity of Congress means that nothing gets done unless the president does it alone, and that this has produced presidents who think the whole power and democratic legitimacy resides with their “pen and a phone.” So advanced is the decay in constitutional thinking that it infected even Joe Biden, a man who joined the Senate the instant he was old enough to be there and spent so many decades in the chamber that he became the senatorial equivalent of a boy raised by wolves.

And yet, frequent gridlock in Congress is part of the design. The Framers expected a nation that was profoundly divided — if anything, the regions of the country then were even more different than ours are today. The idea of having a Senate that represented states and a House that represented the people, neither of whom could act without a two-thirds majority in both if the president blocked them, was precisely that government at the federal level was the exception rather than the rule. If Congress could not agree, it would either leave an issue to be decided different ways in different states, or it would strike the lowest-common-denominator compromise.

Of course, that assumes that if nobody agrees, the federal government does nothing. Where this has gone wrong in our own time is not the fault of the design. It is instead the fault of Congress over the years in establishing permanently funded programs and agencies that cannot be shut down simply because none of the people’s representatives vote to keep them going. Moreover, the tendency to bring the entire budget to a single, last-minute vote tends to wear down members of Congress and get them to wave the whole thing through without scrutiny of any particular part of it. Return to drafting a budget as a prerequisite for federal activity, and we’d have a system that looks much more like the one the Constitution envisioned.

The gravest immediate threat today to the Constitution is that two of its unwritten props — the Senate filibuster and the nine-member Supreme Court — are under simultaneous assault by progressives. A rising number of populist voices on the right are joining them. This is why the stakes of Senate races are so high these days: All it takes is a bare majority of Senate Democrats the next time Democrats control the presidency and the House, and the floodgates will open to permanently and irrevocably shatter the whole system of written law and divided powers.

In the longer term, we are only facing this fix because so many Americans have lost faith in their Constitution, don’t understand it, or take it for granted. We have been celebrating the 250th birthday of the Declaration of Independence this year. When the Constitution reaches 250, will it be celebrated — or merely remembered?