To continue the subject of the Constitution, it seems that the problems we face are more fundamental than we would like to think.

I want to begin by going back to the post-World War II America of my childhood.  At that time we were proud of our Constitution precisely because of the way in which it was able to adapt to new eras that could not have been imagined when it was written.  We were privileged to have a Constitution that was most fundamentally a statement of principles that could guide us on into the future—whatever that might be.

We now see that whole story was a myth.  The only way that the Constitution could play such a role was that in those days the country was largely unified in outlook.  Putting aside the anti-communist hysteria, the country was in a humanistic mood coming out of both the Depression and World War II, and we looked at the Constitution in that way. Also the history of the Constitution fit that mold—written by people who created a democracy by defeating a tyrant.  So the meaning of the Constitution was our shared idea of what the humanistic founding fathers would say about the problems of today.

We now understand that there is no solid legality behind any of that.  Nothing in the Constitution guarantees that interpretation, and the document can be interpreted in wildly different ways—both honestly and dishonestly—by different readers. (That’s not just a matter of “strict interpretation,” which in practice means getting rid of what you don’t like, with no constraint on what you do!)  From a practical point of view it’s hard to say how much of the Constitution exists at all—its meaning is entirely determined by the Supreme Court, and they don’t even have to say how they reach their conclusions. If a President can break the law in the exercise of his office do we still have rule of law?  Do we really have a Constitution?  What exactly do we need to do to get one that works?

As it turns out, two recent books help drive those problems home.  Steven Pinker’s latest “When Everyone Knows What Everyone Knows” talks about the whole notion of common knowledge—what gave us the Constitution of my childhood—as a kind of distributed process independent of its norms.  That’s no way for today’s internet-fragmented society to produce a basis for law.  The second was Jill Lepore’: ‘s “We the People: A History of the U.S. Constitution”.  In passing she notes that the Reconstruction civil rights amendments—numbers 13, 14, and 15—were interpreted out of existence by the Supreme Court for fully fifty years after passage!  It seems words on paper have never been enough.

So the Constitution is a large, serious problem area.  Somehow we have to fix the Supreme Court, determine what level of specificity we need for an enforceable Constitution, and deal with at least some of the other problem areas from our previous note.  That leads to a rather different relationship to the Constitution than we have today.  Instead of trumpeting our Constitution as a world-unique miracle, we’re going to need to turn pragmatic, to understand what the experience has been with constitutions worldwide. And somehow or other we’ll need to find a process to fix it without losing what we’ve got.

There is a lot that is good about the Constitution. In today’s world we’re more conscious of that than ever. But despite our past dreams it can’t defend or update itself.  That, today, is a problem for everyone.