Several adages come to mind in thinking about all this.
Madison noted that “If men were angels, no government would be necessary”. Since we are not angels, we need guardrails against those sorts of behaviors which would do more harm than good to individuals and/or societies; which is to a great extent what government is about. Assuming that, though, the first, and perhaps the most crucial question is Juvenal’s "Quis costodiet apses costumes?” or “Who will guard the guardians?”
It is the central question, and IM (not so) H opinion as one who has spent his professional life as a teacher of US and ancient history, no human society has ever answered it well enough. I do believe, with Lincoln, that we came closest in 1789 in creating for the first time a system which did not depend on the whims of kings or gods or priests and their generals and armies but rather on the people themselves. But that leads us to the second quote, which I have been told comes from the Torah, but in fact could have been said at any time by anyone with any knowledge of human nature, “We do not see things as they are; we see them as we are”.
Given who ‘we are’ at this moment in our history, I’m with Dr. Ginsburg. I cannot conceive of any group of Americans, however chosen, who could rewrite our Constitution in such a way as to guarantee any kind of proper balance or guardianship.
Our Founders, for all the wisdom and experienced and sense of history that they brought to Philadelphia were men of their time and place, and their decision to create a nation based on the twin pillars of freedom and individual rights which included slavery and the denial of equal rights to half its citizens (women) bequeathed to us a contradiction in terms which has cost us dearly and with which we are still struggling. I say that with some level of empathy - it is almost certain we’d never have become anything like Novus Ordo Seclorum had some demanded an end to slavery as a condition for ratification. But that doesn’t alter a trajectory which includes, among other things, a civil war and an enduring legacy of bias which is one of the reasons Donald Trump now occupies the White House and not Kamala Harris (regardless of what kind of president she might have made)
In the end, I have a hard time imagining a Constitution, even one created with the best of intentions today which would both guarantee the freedom and individual rights we assume to be the pillars of a just society and at the same time able to establish a system of guardianship free from the risk of partisan control or overthrow. Either it is 'We the People’ or it is some power or force which is not ‘We the People’. Our Constitution does contain this internal paradox - at an essential level, it is subject to the vagaries of human behavior. We are at the mercy of Pascal's - "La Coeur a des raisons que la raison ne compared pas". The Founders’ greatest leap of faith was in imaging a ‘republic of virtue’. No Constitution can guarantee that.
That said, I also agree with Dr Ginsburg’s suggestions for amending what we already have. For example, state by state legislative electoral districting combined with our ossified binary political party system inevitably invites a gerrymandering 'race to the bottom'. The Electoral College was a late-night jerry-rig which no longer operates as it was intended to anyway.
Free speech. I keep thinking of that wonderful reason to debate given so picturesquely by the Stephen Hopkins character in the musical 1776, ‘I can’t think of topic so dangerous that it can’t even be talked about! Hell yes, I’m for debate’ Either we have free speech or we do not. As much as I deplore and abhor what some Americans have to say, this is an either or proposition. And once again, in any case, Juvenal’s thought comes to mind.
Other thoughts: the Establishment Clause needs strengthening so that religious zealots cannot neutralize, alter, weaken, or abolish it either at the national or state level. Supreme Court Justices should not have life tenure. although just how long a term should be is open to debate. Today’s interpretation of the ‘Sacred' Second Amendment is the tragic triumph of individual rights over the best interests of the community and if it is to remain in force, it needs to be brought into line with the facts of modern weaponry.
Our Constitution constitutes the most extraordinary, the most crucial, the riskiest, and the most complex experiment in human society and government ever attempted. It is, as Lincoln noted, "the last best hope of earth”. I wish more of us understood the grave responsibility that places on American citizenship, not to mention the utter folly of electing to the presidency a man who has not the least concept of the nature and purpose of that experiment.
Really appreciated the last bit about academic freedom and its boundaries. In particular, that we (professors) can better protect our rights by tending to our duties. Yes, technically, we have the right in our extramural speech to be as vulgar and inarticulate as any citizen. But we also have a duty to our profession, and to the values being a professor stands for, to not act on that right.
Thomas Sowell has the great quote: "There are no solutions; only tradeoffs".
There is a great flaw in humanity where some minority of people gain positions of power and influence with the mistaken belief that they can design and implement some perfect system to replace the previous. However, as Sowell also covered, although in a very deep and complex book "A Conflict of Visions" that the American system design, the one that amazed even Marx, and was studied and written about by Tocqueville, tended to have a somewhat self-correcting mechanism of semi-organized mass participation in governance. It was a giant ship that never stayed completely on-course, but would correct in a zig-zag navigation method that allowed it to move forward better than any other ship design.
We are not a perfect union, but a more perfect union. We are a very flawed system, but still the best system ever designed.
The only broken piece is the missing fifth branch of governance that isn't really part of government, but is a required appendage. That is our supposedly free and independent press (media in this case). Once the control valve that helped the public make informed choices by constantly pestering the leadership for signs of corruption, lies and conflicts of interest... and to hold them completely accountable for mistakes and bad behavior... today that no longer exists and has been corrupted to be just an advertising and influence vehicle for powerful and rich people that need the voters to support their causes that are generally about more power and money.
I don't think we need any rewrite of the Constitution, but clearly our founders could never have imagined how the entire media would be captured and centralized by the minority power and used to corrupt democracy by gaslighting and propagandizing the public. We likely need to revisit the first amendment to define "free press" and the other type of press and to differentiate and delineate the rights and restrictions of both.
Several adages come to mind in thinking about all this.
Madison noted that “If men were angels, no government would be necessary”. Since we are not angels, we need guardrails against those sorts of behaviors which would do more harm than good to individuals and/or societies; which is to a great extent what government is about. Assuming that, though, the first, and perhaps the most crucial question is Juvenal’s "Quis costodiet apses costumes?” or “Who will guard the guardians?”
It is the central question, and IM (not so) H opinion as one who has spent his professional life as a teacher of US and ancient history, no human society has ever answered it well enough. I do believe, with Lincoln, that we came closest in 1789 in creating for the first time a system which did not depend on the whims of kings or gods or priests and their generals and armies but rather on the people themselves. But that leads us to the second quote, which I have been told comes from the Torah, but in fact could have been said at any time by anyone with any knowledge of human nature, “We do not see things as they are; we see them as we are”.
Given who ‘we are’ at this moment in our history, I’m with Dr. Ginsburg. I cannot conceive of any group of Americans, however chosen, who could rewrite our Constitution in such a way as to guarantee any kind of proper balance or guardianship.
Our Founders, for all the wisdom and experienced and sense of history that they brought to Philadelphia were men of their time and place, and their decision to create a nation based on the twin pillars of freedom and individual rights which included slavery and the denial of equal rights to half its citizens (women) bequeathed to us a contradiction in terms which has cost us dearly and with which we are still struggling. I say that with some level of empathy - it is almost certain we’d never have become anything like Novus Ordo Seclorum had some demanded an end to slavery as a condition for ratification. But that doesn’t alter a trajectory which includes, among other things, a civil war and an enduring legacy of bias which is one of the reasons Donald Trump now occupies the White House and not Kamala Harris (regardless of what kind of president she might have made)
In the end, I have a hard time imagining a Constitution, even one created with the best of intentions today which would both guarantee the freedom and individual rights we assume to be the pillars of a just society and at the same time able to establish a system of guardianship free from the risk of partisan control or overthrow. Either it is 'We the People’ or it is some power or force which is not ‘We the People’. Our Constitution does contain this internal paradox - at an essential level, it is subject to the vagaries of human behavior. We are at the mercy of Pascal's - "La Coeur a des raisons que la raison ne compared pas". The Founders’ greatest leap of faith was in imaging a ‘republic of virtue’. No Constitution can guarantee that.
That said, I also agree with Dr Ginsburg’s suggestions for amending what we already have. For example, state by state legislative electoral districting combined with our ossified binary political party system inevitably invites a gerrymandering 'race to the bottom'. The Electoral College was a late-night jerry-rig which no longer operates as it was intended to anyway.
Free speech. I keep thinking of that wonderful reason to debate given so picturesquely by the Stephen Hopkins character in the musical 1776, ‘I can’t think of topic so dangerous that it can’t even be talked about! Hell yes, I’m for debate’ Either we have free speech or we do not. As much as I deplore and abhor what some Americans have to say, this is an either or proposition. And once again, in any case, Juvenal’s thought comes to mind.
Other thoughts: the Establishment Clause needs strengthening so that religious zealots cannot neutralize, alter, weaken, or abolish it either at the national or state level. Supreme Court Justices should not have life tenure. although just how long a term should be is open to debate. Today’s interpretation of the ‘Sacred' Second Amendment is the tragic triumph of individual rights over the best interests of the community and if it is to remain in force, it needs to be brought into line with the facts of modern weaponry.
Our Constitution constitutes the most extraordinary, the most crucial, the riskiest, and the most complex experiment in human society and government ever attempted. It is, as Lincoln noted, "the last best hope of earth”. I wish more of us understood the grave responsibility that places on American citizenship, not to mention the utter folly of electing to the presidency a man who has not the least concept of the nature and purpose of that experiment.
Really appreciated the last bit about academic freedom and its boundaries. In particular, that we (professors) can better protect our rights by tending to our duties. Yes, technically, we have the right in our extramural speech to be as vulgar and inarticulate as any citizen. But we also have a duty to our profession, and to the values being a professor stands for, to not act on that right.
Thomas Sowell has the great quote: "There are no solutions; only tradeoffs".
There is a great flaw in humanity where some minority of people gain positions of power and influence with the mistaken belief that they can design and implement some perfect system to replace the previous. However, as Sowell also covered, although in a very deep and complex book "A Conflict of Visions" that the American system design, the one that amazed even Marx, and was studied and written about by Tocqueville, tended to have a somewhat self-correcting mechanism of semi-organized mass participation in governance. It was a giant ship that never stayed completely on-course, but would correct in a zig-zag navigation method that allowed it to move forward better than any other ship design.
We are not a perfect union, but a more perfect union. We are a very flawed system, but still the best system ever designed.
The only broken piece is the missing fifth branch of governance that isn't really part of government, but is a required appendage. That is our supposedly free and independent press (media in this case). Once the control valve that helped the public make informed choices by constantly pestering the leadership for signs of corruption, lies and conflicts of interest... and to hold them completely accountable for mistakes and bad behavior... today that no longer exists and has been corrupted to be just an advertising and influence vehicle for powerful and rich people that need the voters to support their causes that are generally about more power and money.
I don't think we need any rewrite of the Constitution, but clearly our founders could never have imagined how the entire media would be captured and centralized by the minority power and used to corrupt democracy by gaslighting and propagandizing the public. We likely need to revisit the first amendment to define "free press" and the other type of press and to differentiate and delineate the rights and restrictions of both.