But What If We're Wrong? (19 page)

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These illustrative examples, however, are still relegated to the pot of small spuds. The election of 2000 was less than a generation ago (as I type this sentence, those born the night it happened still can't vote). Reagan's success or failure is part of history, but it's still
recent
history—he will be classified, at least for the next twenty-five or so years, as a modern president, subject to the push and pull of many of the same people who pushed and pulled when he was sitting in the Oval Office. And even when all those pundits are finally gone, Reagan's merits will continue to incrementally rise and incrementally fall, simply because he held the one job that is re-ranked and re-imagined every single year. The way we think about presidential history is shifting sand; it would be like re-ranking the top twenty college football teams from the 1971 season every new September and having the sequential
order (somehow) never be the same. When I was in college, everyone told me the worst president of all time was Ulysses S. Grant. But we now consider Grant to be merely subpar. The preferred answer to that question has become James Buchanan. On the final day of 2014,
U.S. News & World Report
classified Grant as only the seventh-worst president of all time, almost as good as William Henry Harrison (who was president for only thirty-one days). I have no idea how this happened. If Grant can manage to stay dead, he might become halfway decent. He could overtake Grover Cleveland!

When we elect the wrong president (or if we remember that president inappropriately), certain things happen. But nothing that can't be undone. If Buchanan truly was the worst president, his failure has had about as much impact on contemporary society as the cancellation of
Two and a Half Men
. Big potatoes don't dwell on personalities. From a political science perspective, they dwell on ideas—towering ideas that could never be changed, regardless of the arguments against them. These are things like the concept of privately owned property, freedom of speech, and voting. These are elements so imbued in the fabric of American civilization that we would never seriously debate their worth in a non-academic setting (and even then, only as a thought experiment). Yet if we are wrong about
these
ideas—if we are wrong about the value of our most principal values—the cost will eventually be cataclysmic. And we will just have to wait for that unstoppable cataclysm to transpire, the way the West Coast waits for earthquakes.

Every few months, something happens in the culture that prompts people to believe America is doomed. Maybe a presidential candidate suggests the pyramids were built to store wheat; maybe
Miley Cyrus licks someone's face at the Video Music Awards; maybe a student at Yale insists her college is not supposed to be an intellectual space, based on a fear of hypothetical Halloween costumes. The story becomes an allegory, and unoriginal idiots on the local news and the Internet inevitably suggest that this fleeting event is a sign that the United States is experiencing its own version of the fall of the Roman Empire. That's always the comparison. The collapse of Rome has been something alarmists have loved and worried about since 1776, the year British historian Edward Gibbon published
The History of the Decline and Fall of the Roman Empire
. That was, probably coincidentally, the same year the US declared its independence. What makes the United States so interesting and (arguably) “exceptional” is that it's a superpower that did not happen accidentally. It did not evolve out of a preexisting system that had been the only system its founders could ever remember; it was planned and strategized from scratch, and it was built to last. Just about everyone agrees the founding fathers did a remarkably good job, considering the impossibility of the goal. But the key word here is “impossibility.” There is simply no way a person from that era—even a person as conscientious as James Madison—could reasonably anticipate how the world would change in the coming two hundred years (and certainly not how it would continue to change over the next two hundred following those, since we can't even do that now, from our position in the middle). This logic leads to a strange question: If and when the United States does ultimately collapse, will that breakdown be a consequence of the Constitution itself? If it can be reasonably argued that it's impossible to create a document that can withstand the evolution of any society for five hundred or a thousand or five thousand years, doesn't that mean
present-day America's pathological adherence to the document we happened to inherit will eventually wreck everything?

It's a question people will answer unequivocally only if their answer is no.

If their answer is yes, the response entails a metric shitload of weaselly qualifications. Criticizing the Constitution is a little like criticizing a war hero—you always need to open with a compliment. Attacking the Constitution is attacking America, which means the only people who will do it openly are so radicalized that every subsequent opinion they offer is classified as extremist. When the Constitution is criticized, the disapproval is more often with how the courts have interpreted its language. But if you doggedly ask a person who has studied the Constitution about its flaws, that person will usually concede that the greatest strength of any document is inherently tied to its flaws. Take someone like Jay D. Wexler, for example. Wexler is a law professor at Boston University who wrote a book titled
The Odd Clauses
, an examination of the Constitution through ten of its most bizarre provisions. His interest in its peculiarities is an extension of his appreciation for the document's integrity as a whole. He's fascinated by ideas like the separation of powers, inserted by the founders as a barrier against their ultimate fear, tyranny. He will directly exclaim, “I love the separation of powers!” which is a weird thing to exclaim. But he also realizes this trifurcation comes with a cost.

“One can imagine how the sluggishness and potential for gridlock that such a system creates might actually be our undoing—perhaps because of some single major incident that the government cannot respond to adequately. But more likely because it slowly, quietly, in ways that may be hard to identify, weakens our society
and culture and economy, rendering the nation unable to sustain itself and rise to the challenges of the future,” says Wexler. “States and localities play the most significant role in shaping the education of children, which is great—except in those states that water down science education to placate creationists. The Supreme Court can strike down laws that it thinks violate the Constitution, which is great—except when it invalidates campaign finance laws that are designed to make our political system fair. Both houses of Congress have to agree to pass legislation, which is great—except when one house holds the entire country hostage by refusing to pass a budget. And if in some future, far-off day we find ourselves no longer a superpower, we may look back and say that this was the result of a constitutional structure that made it overly difficult to implement wise social and economic policy. Now, I don't know if the criticism will be justified. I'm just glad that I'll be dead by then.”

Wexler notes a few constitutional weaknesses, some hypothetical and dramatic (e.g., what if the obstacles created to make it difficult for a president to declare war allow an enemy to annihilate us with nuclear weapons while we debate the danger) and some that may have outlived their logical practicality without any significant downside (e.g., California and Rhode Island having equal representation in the Senate, regardless of population). But like virtually every world citizen who's not a member of ISIS, he has a hard time imagining how the most beloved constitutional details—the Bill of Rights and the visions of unalienable freedom—could ever be perceived as an Achilles' heel, even if they somehow were.

“I'd distinguish the parts of the Constitution that we talk about
most—the liberty and equality protections and the Fourteenth Amendment—from the parts of the Constitution that create the structure of the government. I think it's more likely that if we look back with regret at our dedication to the Constitution, it will be with respect to the structural provisions, rather than the liberty and equality ones. The liberty and equality provisions of the Constitution are worded so vaguely that whatever hypothetical blame we might place on them in any faraway future will more likely be aimed at the Supreme Court's interpretation of the provisions, as opposed to the provisions themselves,” Wexler says. “Now, what if because of these provisions, someone gets away with urging or instructing someone else to blow up the White House, thus instigating a chain of events that leads to a nation-destroying insurrection? Or someone who is arrested without being given the proper Miranda warnings goes free and then blows up the White House? Are we really going to blame the First Amendment or the Fourth Amendment for those catastrophes? If people end up blaming anyone or anything having to do with these provisions—and that itself is a really big
if
—I think people would blame the Supreme Court and the opinions which gave those amendments the specific content that, when applied, turned out to be disastrous. Earl Warren, rather than James Madison, would turn out to be the real culprit.”

Wexler's distinction is almost certainly correct. There are a handful of sacrosanct principles within the Constitution that would never be
directly
blamed for anything that happens, based on the logic that the principles themselves are so unassailable that any subsequent problem must be a manifestation of someone applying those principles incorrectly. In this regard, I'm no
different from anyone else. My natural inclination, for most of my life, was to believe that nothing is more important than freedom. I tried very hard to convince myself that my favorite writer was John Locke. My guts still feel that way, and so does much of my mind. But there's a persuasive sliver of my brain that quietly wonders, “Why do I believe this so much?” I fear it might be because I've never allowed myself to question certain things that seem too obvious to question.

“Are we really going to blame the First Amendment?” Wexler asked rhetorically, and he might as well have tacked on the prepositional phrase
for anything
. And of course the answer is no. There is no amendment more beloved, and it's the single most American sentiment that can be expressed. Yet its function is highly specific. It stops the government from limiting a person or an organization's freedom of expression (and that's critical, particularly if you want to launch an especially self-righteous alt weekly or an exceptionally lucrative church or the rap group N.W.A). But in a capitalistic society, it doesn't have much application within any scenario where the government doesn't have a vested interest in what's being expressed. If someone publishes an essay or tells a joke or performs a play that forwards a problematic idea, the US government generally wouldn't try to stop that person from doing so, even if they could. If the expression doesn't involve national security, the government generally doesn't give a shit. But if enough vocal consumers are personally offended, they can silence that artist just as effectively. They can petition advertisers and marginalize the artist's reception and economically remove that individual from whatever platform he or she happens to utilize,
simply because there are no expression-based platforms that don't have an economic underpinning. It's one of those situations where the practical manifestation is the opposite of the technical intention: As Americans, we tend to look down on European countries that impose legal limitations on speech—yet as long as speakers in those countries stay within the specified boundaries, discourse is allowed relatively unfettered (even when it's unpopular). In the US, there are absolutely no speech boundaries imposed by the government, so the citizenry creates its own limitations, based on the arbitrary values of whichever activist group is most successful at inflicting its worldview upon an economically fragile public sphere. As a consequence, the United States is a safe place for those who want to criticize the government but a dangerous place for those who want to advance unpopular thoughts about any other subject that could be deemed insulting or discomfiting.

Some would argue that this trade-off is worth it. Time may prove otherwise.

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The Declaration of Independence predates the Constitution by eleven years and doesn't have any legislative power. Still, it's central to everything we think about the US, particularly one sentence from its second paragraph that many Americans assume is actually in the Constitution itself: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” Now, there are surface details of this passage that people have
always quibbled with: the use of the word “men” instead of “people,” the fact that the man who wrote these words owned slaves, the fact that the language inserts God into a situation that doesn't seem particularly religious, and that Thomas Jefferson's genius did not keep him from capitalizing non-proper nouns. But these problems (except maybe the slave part) are easily deflected by the recognition of the era. The overall premise—tweaked to fit modernity—is still embraced as “self-evident.”

Even though this is not remotely true, in practice
or
theory.

Pointing out how it's not true in practice is so easy it doesn't even require examples; all you need to do is look at the socioeconomic experiences of American citizens from varying races and opposing genders. But it's not even true with people whose experiences are roughly identical. Take any two white males raised in the same income bracket in the same section of the same city, and assume they receive the same treatment from law enforcement and financial institutions and prospective employers. They're still not equal. One of these people will be smarter than the other. One will be more physically attractive. One will be predisposed to work harder and care more. Even in a pure meritocracy, they would experience differing levels of happiness. “It is not the case that we are born equal and that the conditions of life make our lives unequal,” writes Karl Ove Knausgaard in his nonfiction novel
My Struggle: Book 2
. “It is the opposite, we are born unequal, and the conditions of life make us more equal.” The apparent unfairness of reality can't be blamed on our inability to embody this “self-evident” principle. The world would be just as unfair if we did.