In Constitutional Faith, Dr. Sanford Levinson poses a question to the reader that asks whether or not the reader would sign the current Constitution of the United States and the United States Constitution of 1787. This question forced me to evaluate the relationship I have with the document and everything it stands for and I will begin by discussing the 1787 Constitution. Like Dr. Levinson, I recognize my own privilege. Not only am I a white male, I am also a successful university student, I have served a grateful nation, and most importantly I have never felt at an inherent disadvantage when it came to my own success and well-being. With that said, I have met many people with experiences that differ from my own and because of these interactions I recognize that even though from its inception 229 years ago the Constitution has always benefited me, it has not always existed for the benefit of others, and has historically been used to harm others; therefore, it is obvious to me that I would not feel right about signing the document of old.
Now I recognize that I benefit from historical consciousness and I know exactly how the Constitution turns out. We add amendments, in subsequent years multiple generations will have interpreted the constitution in different ways with different outcomes, and we fight a civil war over slavery that may have been avoided if the framers had just outlawed slavery in the first place. Certainly, that may be an unfair thing for me to say because hindsight is 20/20, but it can be reasonably assumed that the framers knew at the time they were compromising on an issue that the nation would pay for later. And for the resulting strengthening of slavery alone, I would not sign the U.S. Constitution of 1787.
Of course, the fundamental problem of this assumption I have about myself is that the Constitution was signed in 1787, not 2017. I have no idea what I would have thought at the time. A week after attending the Women’s March in Phoenix I remember browsing Twitter and seeing this Tweet pop up on my feed, and it resonated with me. Frequently, when we learn of historical injustices and atrocities it seems natural for us to believe that had we been there we would not have tolerated it. And I too believe that had I been alive during certain times in human history I would have stood up against injustice, just as I find myself doing in contemporary times. But there is no way for me to know if this would hold true had I been there in 1787 and I contend that criticism is a fair one.
To the question of the new Constitution, it is easier for me to evaluate the relationship I have with the current Constitution. Recognizing the constitution has always benefited me, we have also seen the Constitution in recent history benefit more and more Americans. We have seen the Supreme Court unanimously agree that segregation in public schools was unconstitutional, we have seen the right to privacy extended to a woman’s decision to have an abortion, and we have seen the right to marry extended to same-sex couples. But despite these victories for our nation, we still lack a clear and fundamental right to privacy, we still have the death penalty for convicted persons, we still use an outdated system for electing the President and Vice President of the United States, the practice of gerrymandering continues relatively unhindered in to the modern era, and we lack a clear formula for determining the appropriate size of the House of Representatives, all of which, in my opinion, give grounds for amendments to the constitution. Except, we all know how difficult it would be to amend the Constitution, let alone in our contemporary times. And as appealing as a new Constitutional Convention sounds, I am not entirely committed to the idea because I cannot theorize the logistics of such an endeavor or the ramifications of replacing our constitution with our current administration in power. So despite our victories and my opinion that the constitution will likely never be replaced, I believe there is still progress to be made and for those reasons I will not sign the current constitution until such progress is made.
In conclusion, in reference to Dr. Levinson’s question, I would not sign the Constitution then or now for the reasons listed above. I believe, as Justice Thurgood Marshall believed, the Constitution was “defective from the start” and I believe the Constitution still needs work before I would be comfortable placing my name on it. Though to be sure, I will continue as always to keep an open mind about the subject of constitutional interpretation and the Constitution itself.