Is US Constitution Broken and Can it Be Fixed?, 0921 COBJ, Vol. 50, No. 8 Pg. 12
| Author | BY RONALD M. SANDGRUND |
| Position | Vol. 50, 8 [Page 12] |
August, 2021
COLUMN: THE INQUIRING LAWYER
BY RONALD M. SANDGRUND
"Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes."
—Benjamin Franklin, 1789 ".
[A]n American system of government that was meant to preserve minority rights has instead ended up enabling minority rule."
—Gautam Mukunda1
"The United States Senate is perhaps the greatest institution of consensus ever designed."
—Jay Coss 2
This is the eighth article series by The In Quiring Lawyer addressing a topic that Colorado lawyers may discuss privately but rarely talk about publicly The topics in this column are explored through dialogues with lawyers, judges, law professors, law students, and law school deans, as well as entrepreneurs, journalists, business leaders, politicians, economists, sociologists, mental health professionals, academics, children, gadflies, and know-it-alls (myself included). If you have an idea for a future column, I hope you will share it with me via email atrms.sandgrund@gmail.com. This month's article asks whether the US Constitution is broken and whether it can be repaired.
Introduction
A friend of mine is a retired constitutional law professor. By and large we are political opposites, perhaps even polar opposites, but we are not polarized. During President Trump's tenure I kidded him that he retired too early, missing out on lecturing about the many fascinating constitutional issues that arose during the Trump administration. Of course, for those with memories that reach further back than the last administration, there have been plenty of constitutional issues—some might say "crises" —that arose during every presidential administration that I can remember. (Technically, I can be carbon-dated to the Eisenhower administration, but I didn't really care what was going on politically until the Johnson administration.3 ) My friend and I got together for two very long breakfasts— the second, a "virtual" pandemic meal—to discuss the pros and cons of impeachment, the vagaries of the 2020 presidential election, and the events of January 6, 2021. My friend is cut from a fairly conservative political cloth; me, mostly the opposite. But we were able to discuss, quite civilly, these typically contentious issues, often punctuated with wide swaths of common ground.
I am intrigued by politics but have no special schooling in the subject. I am interested in not just political science, but politicians—what makes them tick, why they do what they do, how the sausage maker works, and why people seem so emotionally invested in this or that office-bearer these days. While the pandemic wound itself up and down, I got sucked into the TV series Billions, which follows the careers of two quasi-sociopaths, both seeking power, one through the accumulation of immense wealth, the other through law and politics. As the show develops, a third rival emerges, a younger, idealistic, brilliant foil. It struck me that Billions was just a fix for my previous Game of Thrones addiction for high-stakes political intrigue. Politics: cage-fighting by other means.
I think many of us believe the US Constitution is "broken" in one respect or another—that beyond US Supreme Court decisions with which we disagree or the weaknesses of our elected class, the Constitution itself has baked-in flaws, some emanating from the fact that it represents a great compromise struck in 1789 between small and large states, rural and more urban states, and pro-slavery and anti-slavery states, in order to form a more perfect union.[4]Today die Constitution's guarantees of freedom of the press, an individual's right to bear arms, and religious liberty and the separation of church and state are all points of conflict and criticism. This article examines one of the Constitution's perceived flaws—the US Senate.
Amid die past year's political machinations and my TV binge-watching, I came across an article noting that demographers were in general agreement that in another couple of decades states representing just 30% of Americans would be electing 70 out of 100 US senators.5 My gut reaction was that this was a recipe for political disaster. A country that prides itself on being a pluralistic representative democracy might be controlled by a small and arguably less heterogenous political minority. Of course, I had to check my native-New Yorker instincts for a moment and remind myself that this great country of ours is a representative republic. Each state is its own sovereign, and protecting the rights of political minorities is part and parcel of our glorious institutional fabric—a view I've come to embrace. So, I decided to sit down with a constitutional law professor and a nationally syndicated political pundit to get their thoughts on this possible future.
Participants
Jay Ambrose is the former editor of the Rocky
Mountain News and die El Paso-Herald Post, and is currently a syndicated op-ed columnist for the Tribune News Service. His opinions are sent to hundreds of newspapers throughout the country. He has taught opinion writing in classes at the University of Texas at El Paso, Virginia Commonwealth University, and Colorado Christian University.
Scott Skinner-Thompson is a professor at Colorado Law, focusing on constitutional, civil rights, and privacy law, with a particular interest in LGBTQ and HIV issues. Bringing together these topics, his new book, Privacy at the Margins (Cambridge Univ. Press 2020), examines how privacy can function as an expressive, anti-subordination tool of resistance to surveillance regimes.
Our Constitution, One Among Many
The In Quiring Lawyer: Most modern nation-states have adopted governing documents, like constitutions, to express the social contract between the state and its people. Only a few democratic countries—including the United Kingdom, New Zealand, and Israel—don't have constitutions.6There's always tension between the conditions that existed when a constitution was adopted and future conditions under which that constitution operates due to changing beliefs, values, and technology. As a result, most constitutions allow for their amendment.
I examined with my interviewees the merits of the US Senate's dynamics. The Senate has the power to pass or deny legislation. The Senate has the power to approve or block the appointment of cabinet members, ambassadors, Supreme Court justices, federal judges, and most executive agency heads. The Senate has the power to ratify or reject treaties. The Senate sits in judgment during the trial of federal officials who have been impeached. This power is sometimes referred to as "The Kill Switch"7 Given these extensive powers, does it make sense that, for example, the number of...
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