Is the Constitution Unconstitutional?

Daniel Lazare begins an ongoing series about the Constitution's contradictions

The U.S. Constitution is rife with contradictions, and perhaps the most important concerns Article VII. This is the shortest article in the document, one that states: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

These are just 24 words in all, yet they have generated any number of articles and books. One reason is that the article flies in the face of the Articles of Confederation, America’s first constitution, ratified just six years earlier. The articles were so weak that the new nation was coming apart at the seams. But they were so strong that they ended with the sternest of warnings: “nor shall any alteration at any time hereafter be made in any of them unless such alteration be agreed to in a congress of the United States, and be afterwards confirmed by the legislatures of every state.”

So where the existing law of the land said that constitutional change was impossible without the approval of all 13 states, the proposed new constitution said it required just nine. It was like altering the rules mid-game. Where did the founders get off making such a change on their own authority?

The answer is they didn’t. The new constitution was indeed illegal, a status that the 1787 Philadelphia convention was only able to rectify by setting in motion an elaborate process of self-legalization.

Self-legalization? This may sound paradoxical, but it is, in fact, what every new political order does in replacing an old one. Since the new government can’t base its authority on the ancien régime that it has just sent packing, it can only do so on the basis of new authority that it creates on its own. This is what the Constitution did by citing “we the people” as its authority in the Preamble and then instituting a ratification process so as to establish whether or not the people regarded it as a legitimate expression of the popular will. And that is, in fact, what they did. New Hampshire put the new plan of government over the top when it became the ninth state to ratify in June 1788. Virginia confirmed that verdict by also voting to ratify a few days later, as did New York in July and North Carolina in November. To be sure, Rhode Island continued holding out. But when Congress threatened to impose a trade embargo, it finally bowed to reality by voting to approve the new plan of government on May 29, 1790, nearly three years after the Constitution was drafted.

But the point remains. The people are the supreme judge. Once they rendered their verdict, all doubt vanished as to whether the Constitution was “the supreme law of the land,” to quote Article VI. Once they spoke, what was once illegal was now legal, while a plan of government that was formerly hegemonic was now forgotten. How very Hegelian!

That’s not the end of it, however, not by a mile.

The word “conventions” leads to another difficulty. Conventions were special assemblies called to decide a crucial question of the day. But how were they to be run?

The assumption in 1787-88 was that they would be elected according to the most democratic standard of the day. But this leads to another question: what do the democratic standards of the late 18th century have to do with the democratic standards of the early 21st? Very little, as it turns out.

With the French Revolution still a year off, the United States was the most democratic society on earth. Voting was still based on land ownership. But land was so hyper-abundant that voting was expanding far beyond what people back in England would have thought possible. The result was a new republic resting on a social basis of unprecedented depth and breadth.

But today, no one cares how much land was available since the very idea of a franchise limited to property owners is inconceivable. While ownership was growing, the fact remains that an estimated 40 percent or more of adult males who worked as laborers, artisans, farmhands, or indentured servants were precluded. So were slaves, women, and, with few exceptions, free blacks as well. Four states — Rhode Island, Maryland, New York, and South Carolina — expressly forbade Jews to vote, while Catholics were banned in all 13. In a country of 3.9 million, that brought the total electorate down to just 480,000, less than one person in eight. According to historians such as Charles Beard and Forrest McDonald, the number who actually cast ballots in ratification elections stood at just 160,000, less than one person in 24.

Here’s a thought experiment. The next time there’s a local school board or city council meeting, try raising your hand during the public comment section and suggesting that voting in the next election be limited to property owners who are white, male, and Christian. Will you be ridden out of a town on a rail, beaten to a pulp, or merely laughed at until you shrink away in embarrassment? Perhaps people will take pity on you and call a doctor. But the point is clear: even in the age of Trump, public sentiment is virtually unanimous that a vote that is not open to everyone is meaningless.

Even our benighted judicial system says so. Voting “is regarded as a fundamental political right, because preservative of all rights,” the Supreme Court said in 1886. The right to vote “in a free and unimpaired manner is preservative of other basic civil and political rights,” it added in 1964. In another 1964 case (Wesberry v. Sanders), it declared:

“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”

The liberal political theorist John Rawls put it well when he observed in 1993 that political power is only justified when “exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.” Since the majority of the population has never been consulted when it comes to the U.S. Constitution as a whole, there is no reason to think that they would endorse as “reasonable and rational” a document so monstrously inequitable and out of date as to feature:

• A Senate based on equal state representation allows the 54 percent of the country that lives in the ten largest states to be outvoted four-to-one by the minority in the other 40.

• An Electoral College that gives lily-white Wyoming 3.7 times more clout per capita than multi-racial California.

• A Supreme Court dominated by five conservative justices who were either nominated by minority presidents (i.e. presidents who lost the popular vote) or confirmed by senators representing a minority of the population.

• A dysfunctional amending clause that allows as little as 4.4 percent of the population to veto any and all efforts at constitutional reform.

How could anyone in their right mind say yes to such a system? Still, there’s a counter-Rawlsian argument to the effect that since Americans pay their taxes, obey the traffic laws, and vote in quadrennial presidential elections, then it’s plain that they at least accept the system, which in a harried modern world is the best we can hope for. Until they show active opposition, we can, therefore, assume they give their consent.

Perhaps — although one can point out that Jim Crow seemed to enjoy popular consent for decades on end until events showed it to be worthless. In the end, the only sure way of settling the question is by putting it to a vote. Yes or no — do Americans support a grossly inequitable Senate, a racially-biased Electoral College, a minoritarian Supreme Court, or a Second Amendment that is impossible to change? Since democratic legitimacy is open to question due to the pre-modern voting system that pertained in 1787-88, a free vote open to all is the only way to establish it now.

But this is one thing the Constitution will not do. Article V says nothing about elections or referenda, and if Congress were to appropriate money for one now, we can assume that the courts would veto it in a flash on the grounds that it amounts to an end-run around a super-restrictive amending clause that is nonetheless the law of the land.

So we’re left with a contradiction. The Constitution was not democratically approved, yet, according to the Supreme Court, the same Constitution says that laws that are not democratically approved are no laws at all. So the Constitution is unconstitutional, which is to say crippled by its own inconsistencies and hence at war with itself.

This is not nitpicking. If the political structure is falling apart, it’s because it lacks anything by way of democratic legitimacy. This is what is bringing the Constitution down, a fundamental contradiction that no amount of clever interpretation can erase.