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Throwing out the Constitutional baby with the shutdown bathwater


It should give us all a little chuckle when the left accuses those on the right of being radical, especially when left-wing writers openly advocate for the scrapping of the U.S. Constitution in mainstream publications.

The latest comes in the form of an article by Alex Seitz-Wald for the National Journal. In his piece titled "A How-To Guide to Blowing Up the Constitution," Seitz-Wald boldly combats the deadly menace of infrequent-temporary-partial-government-shutdowns by explaining that it’s time to give the current government the Old Yeller treatment.

His effort is actually quite typical; his entire argument is nothing more than a conflation of the ideas about “modern governance” and “progressive governance,” coupled with an underlying assumption that "modern" is synonymous with "good." Because science. Or, something.

Let’s take a look at some of the finer points, shall we?


If men (and, finally, women) as wise as Jefferson and Madison set about the task of writing a constitution in 2013, it would look little like the one we have now.

Although he corresponded regularly with Madison, Jefferson was not present for the writing of the Constitution; he was in France acting as U.S. Ambassador.

Basic historical facts aside, why wouldn't the Constitution look like the one we have now if they'd written it today? Are we supposed to believe that the founders would conclude that the underlying principles of government and human liberty they held in 1791 have changed or been discredited? What is more likely, if Jefferson and Madison could look at the history of the past 200 years, is that they would conclude that their fears were not only correct but understated! It's hard to imagine the two of them could have ever foreseen the mountain of corpses that many modern governments left in their wake.


Clocking in at some 4,500 words—about the same length as the screenplay for an episode of Two and a Half Men—and without serious modification since 18-year-olds got the vote in 1971, the Constitution simply isn't cut out for 21st-century governance.

The Constitution only appears to not have been significantly modified since the 26th Amendment because amendments are no longer the preferred method of modification. Activists and ideologues have realized that the courts are a far more easy and effective way of amending it. Many would argue that the Supreme Court's ruling on Obamacare's individual mandate was just as powerful an expansion of government authority as anything since the 18th Amendment prohibited the sale of alcohol. It might also be argue that Wickard v. Filburn, which dramatically expanded the government’s power under the commerce clause, was the most powerful amendment in history.

As for not being cut out for 21st Century governance, what Seitz-Wald really meant to say was, “the Constitution simply isn't cut out for the 21st-Century governance I prefer.”


More than 700 constitutions have been composed since World War II alone, and other countries have solved the very problems that cripple us today.

There are 196 countries in the world. This fact alone should tell you something about the turnover rate of many of the constitutions written after World War II.


Our Constitution really has been a steady force guiding us and has been perhaps the most stable in the world," says Louis Aucoin, who has helped draft constitutions in Cambodia, East Timor, Kosovo, Rwanda, and elsewhere while working with the U.N. and other groups. "But the disadvantage to the stability is that it's old, and there are things that more-modern constitutions address more clearly."

Aucoin wrote the constitution of Rwanda? You mean the same Rwanda where, according to Amnesty International, “vague laws are used to criminalize criticism against the government”? I think I’ll pass on Mr. Aucoin’s advice and stick with Madison (at least until we have a little more time to see how the constitutions of Cambodia, East Timor, Kosovo, and Rwanda pan out).


Almost nobody uses the U.S. Constitution as a model—not even Americans. When 24 military officers and civilians were given a single week to craft a constitution for occupied Japan in 1946, they turned to England. The Westminster-style parliament they installed in Tokyo, like its British forbearer, has two houses.

Wait, what happened to all that “the U.S. Constitution is too old” stuff? The English constitution (if one can be said to actually exist) is cobbled together from multiple documents and traditions that date back to the early 13th century. The duel chambered parliamentary system itself has been around since 1341!

Also, the fact that a U.S.-style constitution might not be right for every society is not a testament to the weakness of the U.S. Constitution-- it's just common sense. A one-size-fits-all constitution is about as logical as a one-size-fits-all health insurance plan for all people. Which, upon further reflection, is probably why this makes so much sense to Mr. Seitz-Wald:

But unlike Congress, one is clearly more powerful than the other and can override the less powerful one during an impasse.

Right, because I suppose the protection of the minority is too antiquated a concept for the modern constitution. Super.


The American system was designed with plenty of checks and balances, but the Founders assumed the elites elected to Congress would sort things out. They didn't plan for the political parties that emerged almost immediately after ratification, and they certainly didn't plan for Ted Cruz.

Really? Because many of those who wrote and advocated for the Constitution enthusiastically engaged in party politics.

Also, Seitz-Wald’s childish contention that the founders never could never have foreseen Texas Sen. Ted Cruz (R) would be smart to remember that the Constitution has survived far more divisive Senators and times than this. A government shutdown doesn't ever rate in terms of the crises this nation has seen.

Or maybe Seitz-Wald just meant that the founders hadn't planned for a Cuban senator. Which would probably be the most accurate statement Seitz-Wald makes throughout the entire piece.


"There are about 30 countries, mostly in Latin America, that have adopted American-style systems. All of them, without exception, have succumbed to the Linzian nightmare at one time or another, often repeatedly," according to Yale constitutional law professor Bruce Ackerman, who calls for a transition to a parliamentary system. By "Linzian nightmare," Ackerman means constitutional crisis—your full range of political violence, revolution, coup, and worse.

How is this even relevant to the Constitution? Is there a threat of revolution, coup, or political violence that Seitz-Wald knows about?

Reminder: the Constitution is the oldest existing constitution on earth. Whether or not a nation can uphold its own law is a comment on the nation, not the document. That’s true whether the constitution was drafted in Philadelphia in the 18th century or written on a cocktail napkin in the 1980s.


Surprisingly, considering their reverence of the Founders, conservatives have led the way in reimagining the Constitution, so they can add an amendment to create a right to life after Roe v. Wade or to rein in the federal government with a balanced-budget amendment.

So...conservatives have sought to go through the actual constitutional amendment process in order to reverse constitutional rights and powers invented by the judicial process? Yea, that’s a real head-scratcher, isn’t it?

Amending the constitution through the process it sets forth is an act of fidelity to the constitution and the founders. Let’s remember, the U.S. Constitution was only ratified because many ratifiers were expressly promised that it would immediately be amended. We call the result of that fact The Bill of Rights.

We could go on but it suffices to say that Seitz-Wald's piece is not as much a criticism of the document as it is a personal statement of frustration with the limits it places on his particular ideological agenda. The truth is that most of the problems he points to as having resulted from the Constitution are problems that have resulted from trying desperately to circumvent it and a slow erosion of the limits it placed on the power of the government.

Nick Rizzuto is the supervising producer of Real News on TheBlaze TV.

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