Is The Constitution Passe?

On the precipice of big change in LGBT rights, perhaps it's time for a rethink.

By Abby Dees

Thinking Out Loud

Despite my radical spirit, my committed feminism and deep distrust of old establishments, after I went to law school I became a fawning, dorky fan of the U.S. Constitution. It's normal for lawyers to do this. We see in the Constitution all this promise of equality and justice, even though we know all too well what a problematic document it is, and how very bloody its failings have been. We will fight for it like rabid dogs.

I was, therefore, gobsmacked to hear esteemed constitutional law professor Michael Seidman calling it "an ancient and outdated document" on CBS Sunday Morning last week. I almost threw my cereal at the TV. I refrained, and instead, continued to watch while suppressing a twitch. OK, he made some sense. His question was why are we so beholden to a bunch of dead guys?

Come to think of it, is there really a good reason for the Electoral College or a two-year term for members of the House other than, "because it's in the Constitution"? All those provisions have done for us is Bush II and unending campaign robocalls. Even beyond its pragmatic failings, Seidman points to the gun-control debate to illustrate our misguided obsession with what people thought 200 years ago. Instead of discussing the role guns should play in our society today, we get bogged down on what the framers meant in 1790. One's opinion on the matter then becomes needlessly elevated to a litmus test about who's most patriotic, all because of the 2nd Amendment, written back when guns coughed out a lead gumball. At this point, forget rational debate.

I can't really argue with him, but I'm not willing to concede so quickly, especially since this year promises to be a turning point in LGBT rights. There's no doubt that the Constitution got many things profoundly wrong - for example, the notorious provision that counted slaves as three-fifths a person, or the fact that only rich white men got to vote. Whoops.

I also see in it, though, a good faith attempt to be enlightened, to be better. The framers understood that it was inherently flawed and subject to the prejudices of the times. Thomas Jefferson probably embodied this contradiction as much as any of the founding fathers: he was a seeker of truth and also slave owner. I make no excuses for this, but he was at least somewhat aware of his failings. He wrote, "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind.... We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

There is nowhere else in our legal canon such a document that allows for improvement to our collective wisdom or marks so well where we've been. The 3/5ths provision still exists in the text of the constitution, but it has been superseded by the extraordinary historical moment of the 14th Amendment (1866), recognizing the equality of all American citizens. And we've bumped along toward full equality for women, despite the failure of the ERA. The Supreme Court, as interpreter of our Constitution, has enshrined our biases, and then at other times, pushed us well out of our national comfort zone. In recent history, we only need look at the shameful Korematsu case of 1944 in which the internment of Japanese-Americans was held to be lawful. Then, just ten years later, the Court declared segregation on the basis of race to be unlawful in Brown v. Board of Education.

My point is, the Constitution isn't a crumbling piece of parchment; it is, like lawyers are fond of saying, a "living document." In that spirit, LGBT rights are poised to be the next logical step in its - and our - growth. I'm all for deleting the Electoral College text, and who cares about the "framers' intent" if it can't guide us today. But I still have faith in the Constitution's unique power to urge us forward. Absent a better alternative, I'll keep it.


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