David talks to Gary Gerstle about the history of the United States Constitution and its current role in American political life. Is it still fit for purpose in the twenty-first century and what could be done to change it?

“American democracy is stuck, but because of the Constitution it also has a history of getting stuck.”

Talking Points:

The Constitution not only divided power between the federal government and the states; it also gave each level of governance a different theory of power.

• The Constitution strengthened the power of the central state—this was necessary for the fledgling country to take on larger challenges.
• But Americans were wary about centralized power. Their solution was the enumeration of powers: the federal government would only have those powers explicitly stated in the Constitution.
• Non-enumerated powers remained in the hands of the states, which have, historically, legislated far more intrusively than the federal government.

The biggest changes to the Constitution are not through amendments but through interpretation and practice.

• Amending the Constitution is extremely difficult.
• Commentators often identify the Civil War as a constitutional inflection point. After the war, the Constitution was amended to abolish slavery (13th amendment) and protect the rights of citizens (14th and 15th amendments).
• But in the years that followed, the states successfully clawed back many of the powers they had been forced to relinquish. As a result, the force of the civil rights amendments was not felt until the 1960s when the Warren Court effectively imposed the Bill of Rights on the states.

The 1960s saw a split between those who believed in originalism versus the living constitution.

• The Democrats say that the Constitution only works in a radically changing society if you interpret it liberally, in a living sense, for every generation.
• The conservatives say that the Constitution must be interpreted according to what the founding fathers intended.
• The root of the conflict between Democrats and Republicans is over the proper use of federal power.

Today, federal paralysis means that there is a resurgence of activity on the state level.

• With a conservative court, the states could even become the vanguard of the progressive movement.
• In the post-Civil War, post-Warren court era, federalism may be able to work in a way that it never could before.

Further Learning:

• Gary Gerstle’s fascinating book about American governance
• Gary and the panel recap the 2018 U.S. midterm elections
• How did the U.S. Supreme Court get so polarized?
• More on the Warren Court and where it stood on the issues

And as ever, recommended reading curated by our friends at the LRB can be found here: lrb.co.uk/talking

Set your alarm clocks… next week, Diane Coyle talks to David about economic well-being. What do the statistics miss and how has the digital revolution affected our quality of life?

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