Fredericksburg, Va. — We are about to celebrate Independence Day, which commemorates not the date on which American independence was actually declared (July 2), but, instead, the date the document we know as the Declaration of Independence was adopted and signed. It is telling that this is America’s most basic national holiday, far more, for example, than is Constitution Day, Sept. 17, the anniversary of the formal proposal (and signatures) of the delegates who met in Philadelphia 11 years after the Declaration was adopted.

Similarly, it is telling that Abraham Lincoln began the 1863 Gettysburg Address — the greatest speech in American history — with the reference to “four score and seven years ago.” That, of course, dated the beginning of the “new nation” that entered the world as 1776. 1787 might have established a new government, but Lincoln is suggesting that the Constitution is distinctly secondary to the Declaration in terms of constituting American national identity.

Indeed, Lincoln venerated the Declaration in a way that he did not the Constitution, even though he took an oath to “support, protect and defend” the document. Legal historians argue to this day about the extent to which Lincoln was fully faithful to his oath, but, at one level, it really does not matter. No one believes that the Lincoln Memorial serves as the central temple of American civil religion because of his lawyerly devotion to the Constitution.

Instead, he is celebrated, save by neo-Confederates, in terms of his having preserved the American Union declared in 1776 and, of course, serving as the Great Emancipator (regardless of the fact that the Emancipation Proclamation itself raises delicate constitutional questions for those who really care about how best to interpret the pre-Reconstruction Constitution).

For Lincoln, the central vision of the Declaration was its commitment to human equality, which obviously delegitimated slavery, and the centrality of “consent of the governed.” Thus he concluded his speech in Gettysburg by invoking government not only “for the people,” which might be achieved, after all, by a “benevolent despot,” but also “government of and by the people.”

Consider, then, the implications of an August 2011 Rasmussen poll finding that only 17 percent (less than one in five) Americans believed that the present national government actually meets whatever tests are required to constitute “consent of the governed.” Many other polls could be cited demonstrating the almost staggering “disapproval” of our basic institutions, including, most dramatically, Congress, which gains the approval, depending on the dates of particular polls, of somewhere between one in 10 and one in seven of the American public.

One suspects that had public opinion polling been available in 1776, greater percentages of colonists might well have expressed support for the government of His Majesty King George III, including colonial governors. Thousands of loyalists, similar to those signing the Declaration, pledged their lives and sacred honor to defending what they believed was a legitimate British government. From their perspective, Thomas Jefferson and his associates were nothing other than secessionists determined to destroy the British Empire and the constitutional understandings that structured the Empire (including, obviously, the power of Parliament to levy taxes). They did not prevail, of course, and, as one might say, the rest is history. ...

With independence came the necessity to construct functioning governments for the American states and, crucially, the new national government. America’s first “constitution” was the Articles of Confederation, ratified by the final state in 1781. By 1787 it was widely (though certainly not unanimously) thought to be a disaster, having created a far-too-weak national government.

The Philadelphia Convention was called, therefore, to create a new and better form of government. There was one great problem, though: Article XIII explicitly indicated that the only way the Articles could be amended was by unanimous consent of the legislatures of the 13 states. That had proved a fatal hurdle to needed changes. Even more to the point was that Rhode Island, which didn’t even send delegates to Philadelphia, would never ratify any significant changes.

Did this stop the Framers? The answer is very definitely not. From one perspective, the most important article in the new Constitution was Article VII, which stated with equal explicitness that the new Constitution would come into effect upon ratification by nine states. It did not matter that Rhode Island (as well as North Carolina) had not ratified the new Constitution when George Washington took office on April 30, 1789. In an important essay of “The Federalist,” James Madison defended the decision of the Framers to ignore Article XIII. It was, he argued, far more important to preserve the Union, the nation forged in the Revolutionary War, than to adhere to the basically dysfunctional Articles of Confederation.

Most Virginians, I presume, applaud both Washington, the president of the Convention, and Madison for deciding that there were really more important things to do than remaining tethered to the commands of the Articles. Part of the success of their enterprise is that the Articles have almost disappeared from the consciousness of even well-educated Americans.

This ignorance of the transformation from the Articles to the Constitution is unfortunate. We tend to forget that the point of the Constitution, like the Articles before it, is to achieve the great goals that brought (and presumably still brings) Americans together in a common Union. The greatest lesson taught us by the Framers is that Americans must think for themselves and to ask if they are in fact being well served by existing frames of government.

Why is all of this relevant today? The answer is dismayingly simple: As already suggested, most Americans today are significantly alienated from (at least) their national government. Explanations have been given for this reality by pundits across the political spectrum. What is alarmingly lacking, though, is recognition that the Constitution itself may, like the Articles before it, bear at least some of the blame.

The Framers created a system that was fundamentally designed to make it difficult for government to respond effectively to the great issues of the day. For a bill to become a law, for example, requires the assent not only of a House of Representative and Senate that may be in fundamental conflict, but also the signature of the president, who may have equally fundamental differences even with a relatively united Congress. To be sure, vetoes can be overridden, but they rarely are, given the difficulty of gaining the constitutionally required two-thirds vote in each House of Congress.

Moreover, the 1787 Constitution is basically the most difficult-to-amend constitution in the world. Moreover, for better and, possibly, for worse, state constitutions are far easier to amend. Most state constitutions are, inevitably, “living constitutions,” updated to meet what are deemed to be pressing challenges. That is decidedly not the case with the national Constitution. We live under a set of political structures that is remarkably similar to those set out in the 1787 Constitution, even if in important ways they deprive us of a government that meets the test set out in the Gettysburg Address.

As we prepare to celebrate Independence Day, we might ask ourselves what it means to take the vision of self-government outlined by Jefferson with real seriousness and apply the answers we might come up with to reflection about whether we are really well served by the unamended 1787 document drafted in Philadelphia. The Constitution is merely a means to the overwhelmingly important end of achieving a government that truly merits our consent. It is past time for a long overdue national conversation about whether the Constitution needs fundamental changes and, if so, how best to achieve them.



SANFORD LEVINSON holds a chair in law and is a professor of government at the University of Texas at Austin. He is the author of “Framed: America’s 51 Constitutions and the Crisis of Governance.” Readers may send him email atslevinson@law.utexas.edu. He wrote this for The Free Lance-Star in Fredericksburg, Va.