For its time, the U.S. Constitution was a pretty impressive document, if you leave aside certain small details such as slavery, which was considered A-OK by the Founding Fathers, and women's rights, which were considered not A-OK. But let's give the Constitution's authors a break; they lived at a time when slavery was widespread not only in the United States but around the globe and women were still considered semi-chattel in most of the world. For its time, the Constitution was not bad at all.
But for our time, it stinks.
Whenever I teach constitutional law, I ask my students if they're happy that they live in a nation with the oldest written constitution in the world. They all nod enthusiastically. Then I ask them if they'd be equally pleased if our neurosurgeons operated in accordance with the oldest anatomy book in the world, or our oil tankers steered using the oldest navigational charts in the world, or NASA's rocket scientists used Ptolemaic astronomy to chart the path of the Mars Rover.
Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.
As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official -- say, the president or one of the party leaders in Congress -- reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?
The word "divination" is appropriate, because much of what passes for constitutional debate in this country has more in common with theology than law. Americans spend an inordinate amount of time arguing about how best to interpret the Second Amendment, but the real question -- the one we should be asking -- is this: Why are we so fixated on a 226-year-old piece of paper?
Political theory has advanced a good deal since 1787. We now have decent social science research on the pros and cons of different voting systems and different judicial systems; we can now measure and evaluate the impact of different political and legal regimes in ways the framers could not. Most other nations have had reason to develop new constitutions over the last two centuries, for the simple reason that structures and rules that once made sense often make far less sense when circumstances change.
And boy, have circumstances changed lately. To return to gun deaths, the framers could never have imagined weapons technologies like those used in Newtown or the Navy Yard. But because the U.S. Constitution is amazingly difficult to amend (incredibly, women still have no text-based constitutional guarantee of equal rights), Americans are stuck with gun rules from more than two centuries ago.
This may help explain why the U.S. Constitution no longer gets much global respect. Just a few decades ago, the overwhelming majority of nations around the globe modeled their own constitutions on it. Today, that's no longer true. As a recent study by David Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia found:
The U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere.... Among the world's democracies, constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution, only to reverse course in the 1980s and 1990s. The turn of the twenty-first century, however, saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world's democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II.
Just why other democracies are losing interest in the U.S. Constitution as a model is an interesting question, and there are undoubtedly a thousand and one reasons. But I'll bet the Navy Yard shootings just added 12 more.