Friday Takeaway: Should the constitution be dumped?

  • Ilan Stavans, Amherst College Lewis-Sebring Professor in Latin American and Latino Culture, at his Amherst home.

For Hampshire Life
Published: 6/13/2019 3:53:31 PM
Modified: 6/13/2019 3:53:17 PM

Should the United States constitution be dumped? The majority of nations don’t have one. And those that do don’t turn it into a fetish.

I’m not a constitutional lawyer, although at times I wished I were, studying its minutiae the way rabbinical scholars explore the Talmud. The constitution represents a venerable tradition, yet, like any thinking layperson, I’m concerned about its far-reaching power.

Since its framers were slave owners interested in perpetuating their own capital, since the Second Amendment allows for the ownership of weapons to protect against whatever they understood as lawlessness and since women weren’t consulted about their own reproduction rights ... In other words, the document is biased. Better to have a code of law that applies to current circumstances. And stop using a capital “C,” for heaven’s sake. The constitution is no more sacred than the bible.

All these long-held thoughts returned recently after I attended a performance of Heidi Schreck’s Broadway play “What the Constitution Means to Me.” Actually, more than a play, this one-woman show (though at different points there are a couple of other actors on stage) is an excuse to debate the durability of the “supreme” law, originally comprised of seven articles delineating the parameters of the country’s government.

“We the people of the United States, in order to form a more perfect union”… In the span of an hour and a half, Schreck recreates her teenage self in debates she participated in, locally (she is from Wenatchee, Washington) and nationally, about the pros and cons of the constitution. As she does it, she comments on her present-day feelings toward the views of that younger self. She won several of those contests, eventually using the money to pay for college. Nevertheless, today she is ambivalent about her once gong-ho arguments. The we in “We the people” is still an exclusive (e.g., non-inclusive) club.

Would it have been better if the framers of the constitution had created a nation without such text? Israel doesn’t have one; instead, it has a series of Basic Laws. Argentina, depending on how one defines it, has had a total of seven constitutions, the most recent dating to 1994. Does it matter? This proves that nations cannot exist without laws but they surely can without an “inalienable” constitution.

By the end of Schreck’s play, she has discussed Supreme Court justices laughably misunderstanding the issues of the day. She has argued that the constitution, rather than being a living document, has been used as a shield against change. And she has repeatedly stated that the conception of what a citizen was at the end of the 19th century is somewhat different from now. What she means is that the constitution allowed those who made it to perpetuate themselves in power.

The audience is then invited to ponder: keep the constitution or dump it? Should we have a new one that reflects our modern aspirations as citizens?

In the performance I attended — my son Isaiah and I sat next to Meryl Streep and Emma Thompson — the public was encouraged to take sides. Since then, Isaiah and I have continued the conversation. He thinks the question “Should the constitution be dumped?” doesn’t prompt a yes or a no. The response should be the study of the words within the constitution itself.

I agree with him fully. We all need to know what the U.S. constitution does to us in order for us to know what we can do to it. I want the document to be adjusted to the needs of society. I also want it to reign “supreme.” The word is important to me. Having seven constitutions in the span of a couple of centuries, the way Argentina has done, frightens me, making their code of law too mercurial. As does having basic laws, like Israel.

The doctrine of Originalism, expounded by Justices Antonin Scalia and others, resists the concept that the constitution is always mutating. All living codes must, since change is the one constant of our universe. Who cares what the framers of our constitution meant when they wrote it? What matters is how the law is interpreted in a specific time and space.

Imagine, for a second, that the bible had never been written. Its stories, its policies, its theology would still exist in the form of oral tradition, what in Judaism is known as Torah she-be’al-peh. Would there be a Western Civilization? Surely not, since that civilization, contested as it might be, is textual. That is, it exists because we all converge on the same written text. Having stories, policies, and a theology printed on a page fixes the content while allowing it to be transformed in the act of transmission.

It is important to remember that those who drafted the constitution were part of the we. They endorsed slavery, yet slavery is an abomination. The same goes for ownership of weapons by any citizen who fancies them. Or depriving women of their reproductive rights. Attitudes such as these belong to another epoch. We are more reasonable.

In sum, the U.S. constitution is imperfect yet perfectable.

Ilan Stavans is the Lewis-Sebring Professor of Humanities and Latin American and Latino Culture at Amherst College, the publisher of Restless Books, and the host of “In Contrast” on NEPR. 




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