“Men seem determined to adhere to old prejudices, and reason wrong, because our ancestors reasoned right.”–Noah Webster
When dealing with the Constitution of the United States and the concomitant Amendments thereof there is an innate and perverse bias to “preserve, protect, and defend”1 the document as it exists now, which is essentially, with small but important exceptions, in its original finished state. This bias should not be mistaken for the facile arguments over whether the document should be seen as “living” or “dead, dead, dead”, in the the words of the ineffably ardent textualist Supreme Court Justice Antonin Scalia. Between the loose constructionist (as the proponents of the living are called) and textualist (as the proponents of the dead are called) schools there is an long lasting, even structurally essential, detente: the notion that the basic precepts of law and ethics outlined in the document should be preserved and built upon. Therefore it is my contention that the Constitution of the United States of America was and is the primary obstacle to the advancement of human rights and dignity in the nation.
This is not altogether surprising when we consider who it is that has had the job of crafting and maintaining the document: slave owners, patriarchal aristocrats, elite academics, capitalist businessmen, wealthy jurists and entrenched political officials. Of course there have been exception to this essentially conservative codere but those exceptions, civil rights activists, socialists, workers rights advocates, independent scholars, feminists and Aboriginal activists, tend to prove the rule. There is a vested interest in keeping the Constitution as it is or at least only allowing it to grow within strict and legalistic parameters that are controlled and set by the same folks who benefit most from the current systems. For the most part insurgencies against entrenched bias and privilege in the document have taken the form of mass protests and targeted legal maneuvores to bring attention to issues of abuse and neglect within the context of the preexisting systems. The most effort has been put towards the further amending of the document as it exists in order to “expand” its reach and “widen” its applicability to include marginalized groups and people. Outside of anarchist, communist, or fascist intellectual circles (circles that are, rightfully or not, considered “fringe” at best and seditious at worst) there has been little or no attempt to analyze the role the Constitution itself, as a system, plays in perpetuating injustice and marginalization. Activists and reforms miss the forest for the trees, and are either too blind or too afraid to take on the Constitution itself.
The United States as it exists today is the antithesis of the nation that existed when the Constitutional framers first worked on its system of laws and government. The nation of today is 100 times larger by population, many times more influential in world affairs, for the most part has an ethos of democratic participation as opposed to republican good order, is internationalist in outlook, diverse in population and, at least when it comes to the vast majority of citizens, populist in matters of economics and governance. The United States as it existed in 1789 was an oligarchial agrarian state with a large population of paupers, indentured servants, itinerant farmers and hunters, enslaved people and displaced indigenous folk ruled over by an immensely rich and powerful entrenched semi-feudal aristocracy and wealthy merchant capitalists. The revolution that overthrew the authorities governing the various colonial nations (and they did indeed see themselves for the most part as disparate and unique nations) was more like a localized coup then an authentic mass revolutionary movement like those in late 18th Century France, mid 19th Century Central Europe and early 20th Century Russia. A system of overseas control was overthrown in favor of a local alternative.