As we celebrate the Fourth of July, views of the Founding Fathers are more polarized than ever before. Some progressives want to tear down their monuments, because so many of the Founders were slave-holders, and they created a political system that denied political rights to women and minorities. Most conservatives, by contrast, still view the Founders as demigods and seek to squelch any criticism of them in public schools — promoting a spirit of conformity utterly alien to a founding generation that joyously engaged in never-ending disputation.
More than that, conservative jurists who extol the theory of “originalism” insist that the only way to interpret the Constitution is according to the way the Founders themselves viewed it. The Supreme Court has just upheld abortion restrictions and struck down gun restrictions based on the dubious claim to be channeling the Constitution’s drafters, even though many historians disagree with the right-wing interpretations.
Is there a sensible middle ground between vituperation and veneration of the Founders? Yes. We should acknowledge their manifold faults, while also paying tribute to their still-radical vision of a world in which everyone has an “unalienable” right to “Life, Liberty and the pursuit of Happiness.” Above all, we must vindicate their desire to create a “more perfect Union” to “secure the Blessings of Liberty.”
For all their blind spots, the Founders created a mechanism whereby the original imperfections of the Constitution could be fixed over time. Two mechanisms, actually.
First, the constitutional amendment process. This enabled a “new birth of freedom” after the Civil War, with amendments to abolish slavery and grant civil rights to African Americans, and again after World War I, with an amendment giving women the vote.
Second, the Founders created a Supreme Court that had the ultimate power to interpret — or reinterpret — the often-opaque articles of the Constitution. This allowed the court of the 1930s, after initial resistance, to ratify the creation of a rudimentary welfare state, and the court of the 1950s and 1960s to strike down school segregation and expand rights of privacy that are now under attack.
The United States of America would not have survived this long if we had not done so much to modify the original Constitution and the way it was interpreted in the republic’s early days. In particular, we have greatly scaled back the pernicious doctrine of “state’s rights” that too often has been a cover for the supremacy of a few powerful white men. As urged by future vice president Hubert Humphrey at the 1948 Democratic convention, we finally marched in the 1960s “out of the shadow of states’ rights” and “into the bright sunshine of human rights.” Unfortunately, we are now walking back into the darkness. Because of a benighted Supreme Court, 40 million women are about to lose their reproductive freedom.
Most of the Founders knew better than to try to shackle their progeny to their own worldview. Thomas Jefferson rejected the tendency to “look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched.” He argued “that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”
We need not go as far as Jefferson did in urging that “every constitution … and every law” should expire every 19 years. But our institutions do need to be significantly reformed to “keep pace with the times.”
There is no justice in a political system that gives Republicans six of nine Supreme Court seats even though a Republican has won the popular vote for president only once in the past 30 years. So, too, there is something deeply amiss with a Senate that gives California (population 39.3 million) the same number of seats as Wyoming (population 581,348). The Founders never envisioned such an imbalance between power and population. It undermines any pretense that we are still a democracy.
We should abolish the electoral college and make the election of senators proportional to population. Let the will of the people prevail. We should – but we won’t. Small states will block any constitutional amendment that would strip them of their outsize power.
But there are other steps we can take, even without amending the Constitution, to make our political system more democratic and representative. We should, for example, expand the House of Representatives and the Supreme Court. They reached their present size in 1912 and 1869, respectively, when the country was far smaller. (The U.S. population has tripled in the past century.) We should also end the Senate filibuster, whose use has dramatically expanded in recent years, creating a de facto supermajority requirement that gives a small minority of the population a veto over all legislation.
Instead of acrimoniously and endlessly debating whether the Founders were good or bad, let’s focus on improving the system they created so that it better serves Americans in the 21st century. As Jefferson knew, “institutions must advance” along with society.