The U.S. Constitution is on my mind. First, last night, Archbishop William Lori of Baltimore opened the Fortnight for Freedom, the two weeks in early summer during which the bishops try and convince us that our religious freedom is in dire peril, even though it would be more accurate, and less histrionic, to say there are some significant challenges to the role of religion in our society and legal system. Second, if you watched any of the debate in the Senate the last two days, or on the airwaves, you know that the Republican majority defeated any and all attempts to pass even minimal restrictions on the ability of Americans to purchase any gun they want. "You cannot infringe upon a Constitutional right" was the gist of the Republican argument.
Democrats are in no place to object. After all, whenever a state passes a law requiring parental notification when a minor seeks to procure an abortion, or when a state passes a law prohibiting abortion after, say, 20 weeks, Democrats make the exact same argument: "You can’t infringe upon a Constitutional right."
In this comparison, by the way, the Republicans have a better argument insofar as the text is concerned. The Second Amendment actually does affirm a right to bear arms. As I have written previously, I understand the Second Amendment to guarantee only a right to bear a musket, but at least the right to bear arms, however it is interpreted, is undeniably in the text of the Constitution. The court had to go looking in the "penumbra" of the Constitution to find a right to an abortion.
The language of the Bill of Rights is the language of limitation as it pertains to what the government can accomplish, even when it is enacting the will of the people, and, just so, the rights so defined are rendered in absolute terms. The Second Amendment says the right it enshrines "shall not be infringed." It does not say, “shall not be infringed unless Congress decides that the common good demands it.” The First Amendment begins with the words “Congress shall make no law…” It does not say "no law that is not required by the demands of public safety" or "no law that does not enjoy the support of sixty percent of the people." It says "no law." Period.
In our Catholic intellectual tradition, rights are not absolute things and they are always balanced by responsibilities. Your right to free speech is related to your responsibility to exercise that speech in a way that builds up the common good, enhances human dignity, and the like. One of the oddities of the bishops' religious liberty campaign has been their willingness to dispense with our traditional, Catholic understanding of rights in favor of the liberal, absolutist understanding of rights that animated the founders and which characterized the Enlightenment, and to confuse the negative conception of freedom articulated by the founders (freedom from) with the positive conception of freedom at the heart of Catholic social doctrine (freedom for). Indeed, the phrasing of the Declaration about "inalienable rights" has come to be extended to all rights, perceived or real, even though the Declaration only mentioned three. and, for example, the right to life which is the first mentioned, is set aside in both of the instances of Constitutional rights noted above: the right to bear arms and the right to an abortion.
I think the Catholic tradition is right and the founders got it wrong. I think our society would be more just and even more free if we understood rights as things that are vital in society but are alongside other vital things like responsibilities; that individual rights must learn to live alongside group rights; and that all rights must bow before certain exceptional demands on a polity and, as well, in the face of technological changes, just as the development of automatic weapons. Is it really the case that all of us must surrender our water and our shampoo when boarding a flight in the interest of public safety, but someone on the terrorist watch list can purchase an assault rifle with no questions asked? That may be legal and constitutional. It is also crazy.
But, what is to be done? Is it time to junk the U.S. Constitution?
I am too conservative to think any polity is well advised to believe it should set aside its foundational documents at the drop of a hat. But, in America, the idea of changing the Constitution, or even discussing whether or not the founders got some basic things wrong, is considered verboten. It is definitely time to remove the "no criticism allowed" sign from the Constitution and the founders who drafted it. Let's look at two additional egregious difficulties with the Constitution.
First, it is past time that we examine the many roadblocks that inhibit the popular will from finding legislative expression. The founders were deeply concerned that tyranny could break out at any moment, and so they designed a Constitution that set up a series of potential stop signs. Since then, rules like the filibuster have added yet more inhibitors to action. More than 60 percent of the American people say they want meaningful gun control, and the proposals rejected Monday were frankly not even that meaningful. We seem to have forgotten that the founders erected roadblocks but that their essential aim was to build a government that would reflect the will of the people, and a strong government too, one that would correct the weaknesses of the Articles of Confederation the Constitution replaced.
Second, why is it that Wyoming, with its barely more than half a million people, has the same number of senators as California with its 38.8 million? Surely, this offense to the principal of one man, one vote has outlived its late 18th century purpose. The same could be said for the Electoral College. Unless you live in one of the 11 swing states, you probably won't get much attention this election. Why is that? Indeed, while we are at it, does it not offend our belief in majority rule that Al Gore got more than half a million more votes than George W. Bush in 2000, but because of their distribution, we were saddled with W?
It is time to refurbish a process the Constitution permits and make it more accessible, first in our minds and conversations, and then in practice -- the process of amending the Constitution. The last amendment to be ratified was the 27th Amendment, ratified in 1992, which prohibits any change in the salaries of legislators until after the next election. (That amendment, incidentally, was proposed in 1789, with the original 10 that became the Bill of Rights. It was largely forgotten for almost 200 years!) Before that, the last amendment to the Constitution passed and was ratified in 1971, lowering the voting age to 18 years. The Equal Rights Amendment passed Congress but failed to obtain the requisite number of states to ratify it. Let's think about an amendment that abolishes the Electoral College. How about making the Senate, like the House, proportional to the population of the states? Or, why do we not consider an amendment that states the right to life will be accorded the same constitutional value by the courts as the Second Amendment, and as the ruling in Roe? This would not overturn Roe or Heller but it would give people their day in court to make the case that the interests of protecting life demand a modification in the otherwise absolute rights.
At the very least, let's stop worshipping the Constitution and the founders as if it were the Bible and they were gods. It isn't and they weren't. Their time is not our time. (And there are plenty of ideologues who do not know much about their time but make all sorts of claims about the intention of those who lived during those times!) Their fears should not necessarily be our fears, and their constitutional handiwork should direct, but it should not make impossible, our efforts to wrestle with our problems. May dozens of amendments bloom!
[Michael Sean Winters is a Visiting Fellow at Catholic University's Institute for Policy Research and Catholic Studies.]