Ted Kaufman

September 14th, 2012

Ted Kaufman if a former United States Senator from Delaware and is currently a Visiting Professor of the Practice at Duke University Law School.

Our Constitution is Alive and Well

We face more than a few crises today, but an outmoded Constitution is not one of them.

When a political party tries to reach its objectives by refusing to compromise on just about anything, frustration and gridlock are the inevitable results. It is easy to see how people might begin to question the system that makes such tactics possible, and even the Constitution itself.

We have experienced similar frustrations in the past and have worked our way through them. I believe we will do so again. We have elections every two years, and working within the framework of the Constitution the American people can and will decide to make the changes they want.

I’m sure of this for reasons too numerous to cite in this limited space. But let me write about one general attribute of the Constitution and one specific idea it contains.

Our Constitution is an amazingly durable document. After the ten amendments in the Bill of Rights were ratified in 1789, only seventeen have been adopted since. Two of them, concerning Prohibition, canceled each other out. The fact that there have been only fifteen changes in 223 years is a testament to the document’s enduring relevance and the wisdom of those who wrote it.

As different as their agrarian, isolated, homogeneous, pre-industrial society was from ours, our Founders knew a lot about human nature. They understood, for example, the threat powerful interest groups presented to a democracy. When Madison wrote in the Federalist Papers “Liberty is to faction what air is to fire” he was predicting that the liberty released by the Constitution would cause an explosion of different interest groups–what he called factions.

The Founders could not have foreseen all the powerful interest groups we have today, but they knew the problem and sent us their warning. Reducing the influence of special interest groups and the money they spend may require a new amendment, but we can do that within the existing constitutional framework.

There is a specific idea in the Constitution that I like to think of as the secret sauce that separates us from the vast majority of other governments. Our Constitution is unique in how much emphasis it places on the protection of political minorities. The nineteenth-century philosopher John Stuart Mill was greatly influenced by this idea and developed it in ways that have in turn influenced subsequent amendments and our political culture. Mill believed in majority rule, but also that minority political opinions had an absolute right to be heard. Only by protecting these minority rights, he said, could a society constantly reexamine its beliefs. Only by encouraging and listening to minority voices could widely held beliefs ever be replaced by necessary new truths.

An important expression of the protection of minority rights is the Senate filibuster, which many of us think is being currently abused. The filibuster itself is not part of the Constitution, and it can be reformed, as has been done several times in the past.  But some are now calling for its complete elimination, usually in the name of strengthening “democracy.” What they are missing is the fact that our unique brand of democracy is about far more than just majorities and elections. Time and again over the last few decades, we have seen countries hold elections to attain “democracy.” Far too often we have then watched as the electoral winners crush the losers and begin the transformation of the country into a dictatorship.

I worked on then-Senator Biden’s staff for 22 years and then spent two years as a Senator. In that period, my party sometimes had an overwhelming majority and at times even 60 votes. But because of the threat of the filibuster there was not one major bill that passed that did not include ideas presented by the minority party. Inclusion of good ideas from the minority has been a major source of our American success.

So reform the filibuster rule, but preserve the filibuster. Vote for the kind of change that will end the temporary gridlock we have experienced. But keep our Constitution and the amendment process we already have in place.

It’s not broken. We don’t need to fix it.


Comments are closed.