WWS Reacts

WWS Reacts: Has the Constitution Withstood the Test of Time?

Sep 16, 2019
By:
B. Rose Kelly
Source:
Woodrow Wilson School

Sept. 17 marks Constitution Day, observed annually to recognize the adoption of the United States Constitution.

To honor this day, we’ve asked experts from Princeton University’s Woodrow Wilson School of Public and International Affairs to answer one question from the lens of their own academic work: Has the Constitution withstood the test of time?

Below are their responses.


Charles CameronCharles Cameron, professor of politics and public affairs and affiliated faculty at Princeton’s Center for the Study of Democratic Politics (CSDP), specializes in the analysis of political institutions, particularly courts and law, the American presidency, and legislatures. He said:

“Many American political scientists have looked with envy at parliamentary systems, especially the Westminster version. The recent British performance in the face of surging populism may make them think twice. To me, a fair answer to the question is, ‘Maybe not, but the founders' system doesn’t look any worse than the obvious alternatives.’”


Paul FrymerPaul Frymer, professor of politics and director of the Program in Law and Public Affairs, studies American politics and public policy, engaging specifically in questions of law, civil rights and race, labor and employment, parties and social movements, and historical-institutional development. He said:

“Two quick points to a very difficult question that has many (lengthy) answers. First, is the modern era’s conflict over the Constitution any different than prior eras? My sense is that different faults are being illuminated. For example, as the nation’s population continues to skew more toward certain states and urban areas, the state-based representation of the Senate becomes all the more glaring. Perhaps we want small states to be represented, but at what point does California’s population (approaching 40 million) make its equal number of Senate seats with Wyoming (with a population under 600,000) untenable? There were faults in the 19th century Constitution, too. It struggled to address expanding industrialism. And, of course, it remained standing while millions of people of African descent were enslaved. The Constitution has always been a work in progress, idealizing democratic procedure better than it carries out democratic representation.

Two, a glaring issue in the modern moment is that some politicians are increasingly pushing certain features of the Constitution to its limits, putting stress on the document and the people who work within it. The use of the filibuster in the Senate and Merrick Garland’s failed Supreme Court nomination are just two examples. It is a reminder that for the Constitution to work, it necessitates a buy-in from its participants. Depending on your politics, both today and in history, this is potentially a good or bad thing. Is it good that the Constitution survived during slavery, or would it have been better if abolitionists brought the system down much earlier? Without in any way suggesting an equivalence, there are questions today as well about how far conviction should hold versus upholding constitutional procedures. At the least, the vision of upholding the Constitution is not necessarily the same as upholding different definitions of justice.”


Jonathan MayerJonathan Mayer, assistant professor of computer science and public affairs and affiliated faculty at the Center for Information Technology Policy, studies the intersection of technology and law, with emphasis on national security, criminal procedure, consumer privacy, network management, and online speech. He said:

“In just the past couple years, courts have constructively applied the Constitution to cellphone tracking, electronic voting, and algorithmic decision making. That's real longevity.”

 


Kim Lane ScheppeleKim Lane Scheppele, Laurance S. Rockefeller Professor of Sociology and International Affairs and affiliated faculty at the Program in Law and Public Affairs, studies the intersection of constitutional and international law, particularly in constitutional systems under stress. She said:

"The U.S. Constitution is presently held up by the scaffolding of unspoken conventions and rules that go without saying and court decisions that update it and the common belief that the constitution still works. But this is a fragile structure. As soon as people no longer believe that the constitution is real, it will begin to collapse.

We live at a moment — not just in the U.S. but in many countries around the world — in which the “rules of the game” are becoming part of “the game.” And that means that it is becoming harder to distinguish the Constitution as a stable framework of government from the daily machinations of politics. This is a dangerous time, when many constitutions around the world are falling victim to populist leaders who want to govern without the oversight of parliaments and courts. The U.K., Italy, Hungary, Poland, Venezuela, Brazil, Turkey and the European Union are finding that their constitutions have either been captured or are not adequate to address the problems they face. The U.S. Constitution itself is now highly unstable as Congress becomes increasingly dysfunctional, the courts are being captured, and the President cannot be compelled to honor the law. On Constitution Day, we need to recommit to constitutional democracy and convince our fellow citizens to become guardians of constitutional values before they lose the constitution they have."


Sarah StaczakSarah Staszak, associate research scholar and affiliated faculty at CSDP, studies the intersection of public law, policy, and American political development.

“I think there are certainly aspects of the Constitution that continue to serve what were perhaps their foundational purposes in terms of defining and delimiting the structure of governance in the U.S. The Commerce Clause, for example, has successfully been brought to bear on an ever-expanding array of both policy questions and questions regarding the powers of government itself.

Through the lens of foundational purposes, however, one aspect of the Constitution that has arguably fallen short is its role in constraining executive power. This is especially striking in light of the founding-era focus on preventing a powerful executive branch. The reach of presidential power today is likely the first thing that comes to mind, but this applies to the depth and breadth of the administrative state itself, as well as the President’s ability to strategically leverage it in the service of his political and policy agendas. Whether this is a problem or a failure, however, is obviously a complex issue for individuals on both sides of the partisan aisle, shaped by differing conceptions of the ideal reach of government.”


Keith WhittingtonKeith Whittington, William Nelson Cromwell Professor of Politics and professor of politics and affiliated faculty at CSDP, studies American constitutional theory and development, judicial politics, the presidency, and federalism.

“The Constitution has proven to be remarkably durable. It has some built-in flexibility that has allowed it to be pretty adaptable. Some key amendments resolved issues that might have been debilitating. Practices and norms have built up around the text that have helped make it generally functional over time. The framers of 1787 managed to avoid the kind of irremediable design flaws that have proven fatal to other constitutions, including the first federal constitution for the United States. The document is hardly perfect, but at least its flaws are mostly familiar and manageable. If we were trying to design something from scratch today, we would undoubtedly do a lot of things differently – and we would probably wind up producing something a lot less functional or enduring.


WWS Reacts is a series of interviews with Woodrow Wilson School experts addressing current events.