Whither the Constitution?

Supreme Court Justice Ruth Bader Ginsburg recently said “I would not look to the United States Constitution if I were drafting a constitution in the year 2012.”

The constitution she dissed was of course the one she is sworn to uphold, and the one she and eight others are charged with interpreting.

That ought to scare you.

The document designed 222 years ago by brilliant Americans who had recently weathered a storm of tyranny is now frankly obsolete in the mind of at least one of its conservators. She favors instead the document South Africa produced, or perhaps Canada. Other Supreme Court Justices have been heard to muse that international law should be looked to for guidance ahead of the Constitution.

The criticisms are coming fast and furious: our Constitution is too hard to amend (indeed, many countries go through theirs faster than Kleenex). It doesn’t guarantee health care, or food, or a job. It lets people have guns. It doesn’t specifically guarantee women equal rights. It says nothing about whether gay people can marry. It guarantees even Muslim terrorists a speedy trial, but doesn’t keep Americans from criticizing Islam (Canada’s silences the critics).

It is, they complain, undemocratic.

And if by that they mean that it doesn’t change at the whim of the legislature, they are right.It has been amended only twenty seven times, and two of those amendments (the ones prohibiting alcohol and restoring its regulation to the states) cancel each other out. However, fully fifteen of those amendments protect individual rights or limit the powers the federal government can properly exercise. Later amendments have abolished slavery, assured the rights of citizenship regardless of one’s color, and granted women and eighteen year olds the right to vote. No amendment has expanded the power of the federal government or restricted the liberties of the individual except for the one that gave the federal government the power to levy an income tax.

Where individual liberties have been trampled or the federal government’s powers expanded, it has been the courts themselves, or Congress or the Executive branch that has bent the Constitution out of shape.

Judges have used it to allow states to disarm African American citizens and leave them to the mercies of the Klan. The Supreme Court once ruled that a man who had escaped slavery and fled to a free state was still property. In another case a free black man was told he had no right to ride in a train car set aside for whites only. A farmer who had been told he could not sell his wheat was also punished for feeding it to his own pigs. Homeowners have been told the city can take their property and hand it over to developers. And corporations have been told that spending unlimited amounts of money in political campaigns was the same right of free speech inherent in you and I.

In most such cases, the Supreme Court itself or Congress and the states, or the Executive branch has eventually changed course, softening or in some cases rejecting outright rulings that have outraged Americans. In other cases, time and Americans’ tireless efforts have not yet brought about a solution. And it is possible that in our abundance, the decision will be taken by amendment that there are certain things the government must do for people rather than refrain from doing to people. But such changes should be approached warily, if at all. For 222 years, our Constitution has protected us from the smothering embrace of an all-powerful government.

It can go another 222 if we let it.