In “Love and Death,” Woody Allen said that if God exists, the worst you could say about him is that he’s basically an underachiever.
That’s pretty much how I feel about the U.S. Constitution. It has some good features, but it’s overrated.
For saying this (I know from experience), I will be denounced as unpatriotic. People tend to get choked up over the Constitution even if (or especially if) they have never read it.
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But even if you don’t read the Constitution, you should at least understand that it was put together in a manner that we would never countenance today.
We like things transparent. The Framers met behind closed doors.
We like sober judgment. The Framers were loaded. History records that they used the plentiful taverns of Philadelphia in which to hammer out daytime compromises, and the nights could turn into massive benders.
There’s a famous bar tab from a dinner to honor George Washington on one of the last nights of the Constitutional Convention. It was attended by the 55 delegates. Ready? Fifty-four bottles of Madeira wine, 60 bottles of claret, 22 bottles of porters, 12 bottles of beers, eight bottles of cider and seven large bowls of punch.
So when they weren’t drinking, they were hungover.
To be fair, city water was not especially good or even safe at the time, so everybody was kind of a functioning alcoholic.
But that — don’t ask me how I know this — leads to bad writing. You wind up writing things such as “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
What the hell kind of writing is that? My editor John Breunig would right away have taken out the first and third of those commas. But we are still left with a very confusing statement. Why mention militias at all unless they represent the conditions which necessitate the right? And why mention “well-regulated,” unless you think that’s baked into gun rights?
We don’t know. And that’s a problem.
Yes, yes, I realize the amendment appears in the Bill of Rights which was proposed two years after the Convention. Stop trying to pick my ideas apart. Don’t you realize how hammered I am right now?
The reason for bringing this up is that Amy Coney Barrett is a self-proclaimed “originalist,” which means she purports to rely strictly on the words used by the Framers and on how they would have been understood by a reasonable person at that time.
It does not seem to bother ACB that she, as a woman, would not have been allowed anywhere near the Convention or for that matter the ballot box. Neither would Clarence Thomas.
The 55 white men meeting in secret tended to cut rather favorable deals for themselves and to leave everybody else in the lurch.
Their living conditions were closer to those of the Roman Empire than to modernity. (This is not my original observation, but I’m no longer sure about who I stole it from.)
They did not have internal combustion engines or electricity or germ theory or radio or television or internet or air travel or Roombas.
They had muzzle-loading guns that fired, after quite a bit of coaxing, one metal ball at a time. But we should turn to them now to cope with guns that fire 40 rounds per minute.
They had nothing resembling our modern anesthesia, sanitation and surgery, but we should rely on their words to make modern decisions about medical care and abortion.
They set up the Electoral College which effectively disenfranchises voters, and the Senate which effectively over-privileges voters in less populated states.
But there’s something I’m forgetting to mention. What is it? (Drums fingers.) Oh! I know. Many of them owned people. They had sex with people they owned. They bought them and sold them. They’d sell children and keep the parents or sell a wife and keep her husband. (Thank God this practice of separating families is consigned to the past.) Thomas Jefferson said their “griefs” were “transient.” The Black person did not feel bad about tragic circumstances the way a white person would, he argued.
In the same passage, Jefferson wrote that the Black man’s feelings of love, unlike the white man’s, were mostly sexual ardency.
And yet these day-drinking, slave-holding, woman-subjugating rascals were so heroic and their insights so God-given that we dare not depart from them. We must continue to treat their word as inspired and mine them for insights that we can apply to in vitro fertilization and nanotechnology, subjects it would take several lifetimes to acquaint them with.
What we need to do — as was previously argued by retired Justice John Paul Stevens — is amend the Constitution way more than we have so far. I mean, 27? In 233 years? And the 21st Amendment merely repeals the 18th (Prohibition), thus restoring the originalist state of collective inebriation.
And the first thing we need to amend is Article 5 which makes it way to hard to pass amendments. Two-thirds of both chambers (or a convention sought by two-thirds of all states) and then ratification by three-fourths of the states? You couldn’t get that kind of consensus if a killer asteroid were hurtling toward Earth or ... or ... or if a horrible virus attacked us and started killing hundreds of thousands of people. Wait. That’s happening now. And there’s no consensus.
Why is it so hard? Because those rascals didn’t want us messing up those deals they handled out. But in 1920, after a mere 133 years, we passed an amendment which allows Amy Coney Barrett to vote.
We showed those Framers, didn’t we?