One of my recent personal study projects has been outlining the Constitution. One picks up on so much more and retains so much more when one has to actually write something out or summarize it point by point.

**My chief impression is how odd it is that we continue to use and hold such reverence for a political document written in the 18th century designed for the governance of a collective of small farming and shipping nations. Not, of course, that the age of the document is itself an issue, rather the age combined with the nature of the Constitution; a largely practical document written to handle governance in a specific historical circumstance, said circumstance now being as vanished as Ancient Egypt. A religious or philosophical text, for instance, can fairly claim to remain relevant for all of time; a government instruction manual, not so much.

Of course, one could critique just about any government’s foundational principles and find them equally absurd. But the difference between the Constitution and, say, a Kingship is that the monarchy doesn’t claim practicality as its justification; it appeals to a different facet of man: the passionate, sensitive, emotional element, you might say. The Constitution tries to be a very rational and practical document for the governance of a ‘free people’. The one appeals to the head, the other to the heart. But matters of the heart tend to be much more enduring than matters of the head.

One of the really interesting things about America is that we take our practical legal how-to document for governing small maritime powers in the 18th century and surround it in the same pomp and show and cluster of custom as any Royal House. The reason the Constitution still has what authority it does is not due to its supreme excellence or reason or because following it leads to the best government possible; it’s because of the emotional, passionate attachment Americans have for it, along with other civic icons such as the Flag or the Declaration of Independence. It’s like the eagle of the Legion; a kind of mascot or symbolic receptacle of devotion (In darker moments, we might call it an idol).

This passionate, mythic approach could be called irrational, given that it usually doesn’t literally correspond to anything observable. A King is generally not a clear candidate for the greatest man in his kingdom, and the Constitution isn’t really a key to liberty and good government where everything would be hunky-dunky if we only stuck to it (side note: I do think the government has an obligation to do so, but for all the Constitution’s virtues, I don’t expect it would make everything green in the garden if they did).

But on the other hand you could call it supremely rational, since the most rational thing to do is to treat your subject according to its nature, and it is not the nature of man to be a wholly rational or practical being. Man is not governed chiefly through the head, but through the heart. It the passions more than the reason that move his actions, hence it’s only rational to ground one’s government in the passions of its subjects. Though, naturally, we should try to make those passions as rational as possible.

**We have had twenty-seven amendments so far; an average of more than one a decade. Though that’s misleading, as they tend to come in chunks: the first ten in 1791, then a quick succession of three during Reconstruction, then another batch during and around the Wilson administration, then four in the chaotic years between ’61 and ’71, plus a few others scattered here and there. So, it’s less a continual revision than it is a series of periodic upheavals during which multiple amendments get passed over the course of a decade or so.

And some of them struck me as frankly odd choices for such an important legal process. Like the 20th Amendment moving the date of the start of term for elected officials. This was really the big priority facing the nation to the point of requiring an edit to its ruling document in 1933, was it? There were reasons for it, of course (reducing the ‘lame duck’ period to increase government effectiveness), but really, that was what Congress decided needed fixing at that stage in American history?

In fact, it’s kind of odd that the Great Depression, despite being one of the major crises of our history and involving massive changes in the role and scope of government, only resulted in two amendments: the aforementioned 20th about the schedule change (and clearing up rules of succession) and the 21st, which repeals the 18th (Prohibition, speaking of odd choices for Amendments).

**A fair number of Amendments amount to gutting the rights of the States to make voting rules. Article 1: Section 2 ostensibly gives the States the right to determine how voting will work among their own citizens, with the right to vote in Federal elections tied to the ability to vote in State elections. Amendments 14, 15, 19, and 26 pretty much eliminate this, yet none of them actually overturn Section 2. It pretty much amounts to “States the right to determine voting rules, except when they don’t.” Then, of course, Amendment 17 essentially reduces the State Legislature to irrelevance anyway.

**The Fourteenth Amendment in particular essentially eliminates any pretense that the States are, well, States and not glorified administrative districts: if a State can’t set its own citizenship rules, then that pretty much destroys any notion of sovereignty or authority. Then again, that ship was kind of sailed from Article 6: Paragraph 2, where the Constitution and Federal Laws were made to supersede State laws (or, arguably, Article 4: Section 4 ‘Guaranteeing’ a Republican form of government to each State. Not that I suspect any American state would be likely to pick a different form, but it gives the lie to the idea of state sovereignty if a State can’t choose its own form of government). But then, it’s hard to see a way around that without making federal law a dead-letter.

**Americans have an odd habit of saying “it’s unconstitutional!” when they mean “it’s wrong!” The two are, obviously, not co-extensive. For instance, I’ve heard a number of people claiming that income tax is unconstitutional. It isn’t: Amendment 16 very specifically makes it Constitutional. It’s a bad practice, but it is meaningless to say that a part of the Constitution is unconstitutional (and just to drive it home, Article 5 says that any ratified Amendment is part of the Constitution for “all intents and purposes,” so no claiming that Amendments are somehow ‘subordinate’ parts of the document).

**Speaking of amendments, I think I’d heard of the Corwin Amendment – one of the Federal Government’s last-ditch efforts to avert the Civil War – but I hadn’t actually read it before. The proposed text ran thus:

“No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”

Which is pretty clever, of course, because it would mean that in order to make an Amendment to interfere with slavery, Congress would have to pass a Constitutional Amend…oh.

The faith that Americans have in written laws results in some very silly things sometimes. Someone seriously proposed an amendment to prevent a hypothetical future amendment, which could only be changed by another amendment…which is exactly what it’s supposed to prevent. Meaning that there would be literally no point to such a proposal!

And the sad part is, from my (admittedly very cursory) reading on the subject, no one in Government at the time spotted the problem. Lincoln himself apparently said that it sounded good to him (though likely that was more his being a politician and trying to make his claim to not intend harm to slavery where it already existed more credible). They focused instead on the idea that the law could go too far and affect other internal affairs, not noticing (or not pointing out) that the thing is absurd on its face.