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A few thoughts on Constitution Day

Max Stearns

I've been teaching Constitutional Law since 1992, so for a long time. We shouldn't have a Constitution Day. The document is profoundly flawed, and that's not new. Its flaws have manifested themselves in different ways in different historical periods, yet the flaws began to surface in serious ways on day one. This generation, the most profound flaws involve entrenched anti-majoritarianism and a feckless system of separation of powers and checks and balances. In past generations, the flaws have manifested themselves through the institution of slavery, by condoning Jim Crow laws, and by allowing women to be afforded second class status.

Of course the Constitution admits of improvement through amendment, and through reinterpretation. These are very hard processes, especially the former, helping to explain the stressors on the latter. No system of government is perfect, and for a remarkably long while, ours has done better than most. Even so, the Constitution is a means to an end, not an end in itself. The end must be a better and more fair society, one that never stops aspiring to its highest ideals, without fetishizing ancient provisions whose meaning is obscure to everyone except those too often given power because they claim complete certainty.

A society that holds a document in reverential status risks failing to appreciate the role such a document plays. Rather than celebrating the Constitution, we should be fighting to improve it. Which is to say, we should be having an Anti-Constitution Day, not out of disrespect or out of a failure to appreciate genuine gains we have made, but rather in recognition of the serious work that remains to be done.

I welcome your comments.


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