Fiala on ethics: Shutdown raises questions

October 4, 2013 

We don't really think about our tools until they break. The proper functioning of a car, for example, is simply taken for granted. But when your car breaks down, you may stop to wonder whether it is time to get a new one — or even to switch to a bicycle.

In recent days, it is the government that has had a breakdown. Is it time to replace the 225-year-old vehicle of the Constitution with a different one?

Thomas Jefferson once suggested, in a letter to James Madison, that no society can make a perpetual constitution. As Jefferson put it in 1789, the earth belongs to the living, not the dead. Each generation is entitled to reassess the rules and institutions under which it lives. Jefferson suggested that every 19 years or so, the previous constitution naturally expires.

But we venerate our good old Constitution, often forgetting that it was the result of compromise and war, produced by men who were not perfect. The "three-fifths compromise" is one notorious bargain, intended to get slave-holders to accept the document by counting slaves as partial persons. A brutal Civil War resolved the constitutional crisis caused by slave-holding states who challenged the power of the federal government.

But structural problems remain. Consider the system of representation. A compromise gives all states equal representation in the Senate, while state populations are more evenly represented in the House. This gives small states inordinate power in the Senate.

And some citizens have no representation in the Senate. Residents of the District of Columbia outnumber the residents of small states such as Wyoming or Vermont. But Vermont and Wyoming each get two Senators, while D.C. gets none. Similar lack of representation holds for citizens of Puerto Rico, whose population outnumbers that of dozens of states.

A further problem is that presidential elections occur through Electoral College votes. In combination with the winner-takes-all voting procedure, this gives inordinate power to swing states. And as a result, the popular vote for president does not matter.

There are other problems. Consider how odd it is to provide lifetime terms for nonelected judges, some of whom serve into their 80s. Or consider the fact that simple majorities among justices can overturn laws. Wouldn't it make more sense for Supreme Court justices to serve limited terms — or to increase the number of justices, or to appoint justices by geographical region or to require more than a one-vote majority to overturn a law?

The Constitution does allow amendments. But the requirements of the amendment process are onerous. A two-thirds majority in both houses of Congress is needed to propose an amendment, which must be ratified by three-fourths of the states. In the era of two-party partisanship, amendments are rare. The last amendment lowered the voting age to 18 — in 1971. How many new cars have your purchased since 1971?

Other problems include the two-party system and the power of lobbyists and special-interest money. The outcomes and results have not been great in recent years: unjust wars, governmental spying, the use of torture, lobbying scandals, massive debt, biased enforcement at the IRS, economic inequality and now a government shutdown. The glitches and flaws in the system should incense both Republicans and Democrats.

Every school child learns that the three branches of government and the bicameral legislature create a system of checks and balances. This system does not facilitate seamless and speedy decision-making. Instead, this vehicle is built for safety and stability — by protecting the rights of individuals and minorities.

The current shutdown occurred is an example of this. A few representatives in one house of Congress manipulated the system. It depends on your perspective as to whether this is a good or bad thing. But the shutdown is legal and permitted by the Constitution.

Some may think that this indicates the need for a trade-in. The 19-year lease on constitutions imagined by Jefferson expired long ago. But perhaps we prefer our rusty, inefficient old clunker. Given our disagreements, we'd never be able to agree to a new make and model. In the meantime, let's hope the congressional grease monkeys get our jalopy back on the road again soon.

 

Andrew Fiala is a professor of philosophy and director of The Ethics Center at Fresno State. He invites your suggestions at fiala.andrew@gmail.com.

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