September 17 is US Constitution Day, a public commemoration first officially observed only in 2005, but which marks the day, in 1787, of the final meeting of the Constitutional Convention in Philadelphia.
This year, Constitution Day falls during the Days of Awe, the period between Rosh ha-Shanah and Yom Kippur when Jews the world over assess their actions in the past year and atone for their sins and thereby seek to “return” (t’shuvah) to the right path. ((It is worth noting here that “right path” does not carry the theological implications for Jews that it might for members of other religions, nor does it mean primarily seeking forgiveness from the Divine (though it means that, too). It means first and foremost repairing our own personal relationships, working to correct injustice, and committing acts of gemilut chasidim or “loving kindness.”))
The coincidence of Constitution Day and the Days of Awe is thus a perfect opportunity for Americans–Jew and Gentile alike–to assess whether our path is the right one. Has the Constitution been faithfully upheld by the party in power? By the “opposition”? By the media? By us as individuals? Are we as a nation even aware of the core precepts of limited, constitutional, government? How many of our citizens know that Madison’s original “Virginia Plan” for the constitution was radically different from what was completed as a politically feasible draft 220 years ago this day? ((The Virginia Plan, in a nutshell, called for both houses of congress to be apportioned to the states based on population and for the executive to be elected by congress, and to have no veto over legislation. The upper house members would actually have been elected by the House of Representatives (from candidates nominated by the state legislatures) and while the president would not have had a veto, he could have convened a Council of Revision, which would have included judges, to consider a law’s constitutionality. Congress would have retained the final say on which laws were constitutional–including those passed by state legislatures. Madison was a “federalist,” but his constitutional proposal was centralizing, nationalizing, and majority-empowering. These remain fundamental democratic principles worthy of reenactment in our time.))
Limited government is a radical idea of which America was one of the originators, but it seems we have strayed very far from the path set by our founders 220 years ago. What steps can we take as a nation to return to the constitutional path? What have we, individually and collectively, failed to do in the last year to reinvigorate our electoral and constitutional processes? Many of us who were fortunate enough to live in the handful of swing districts and swing states thought we were taking an act of t’shuvah by voting for the party opposed to the incumbent executive. And then what? In the fundamental sense of restraining the president’s claimed wartime powers at home as well as abroad, not much. We as a nation have a lot of “returning” and atoning yet to do.
What can we do in the coming year to set the constitutional and democratic path straight again? Work for fundamental electoral reform, so that we can be represented swing voters without regard to our address? Work for constitutional reform in the spirit of the original idea of constitutional government, if not in its precise, politically bargained, structure?
We should not fear reform, or shrink from even “radical” ideas for improvement in our democracy. Thomas Jefferson, in a letter to Samuel Kercheval, July 12, 1810, and in words that are literally carved in stone in the Jefferson Memorial, said:
I am certainly not an advocate for frequent and untried changes in laws and constitutions… But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
Even more, Jefferson warned against what he referred to as “sanctimonious reverence” for the Constitution and its founders.
If we use Constitution Day, and other patriotic commemorations, as an opportunity for “sanctimonious reverence,” we as a nation are idolators–as any student of Jewish history and the Bible will know, one of the worst of all sins.
We Jews give honor to our Torah as a guide to life–a “constitution,” in a sense. We don’t idolize it, but we revere it as the document of our people’s quest to make sense of the world and to guide us in living ethical lives. The progressives among us read it critically and while we certainly do not propose to amend the Torah, we do regularly reform how it is understood in our era, to keep it going hand in hand with progress of the human mind.
So, just as Jews have historically read the Torah and interpreted it and shaped its application–even in early rabbinic times through Talmud–and endeavored to keep it up to date through commentaries and discussion, so we Americans should do with our Constitution. We must not idolize it, or its original authors. For we are its authors. It is our Constitution, and we are responsible for making sure that our leaders–and we ourselves–live by its precepts.
Wherever Americans gather–in public events for patriotic days, in our schools and civic clubs, and in our synagogues, churches, mosques, and other religious institutions–we should make the Constitution come alive by reading it and discussing its relevance to our times. We should embark on a national program not only to read the Constitution itself, but to read the Federalist Papers (an “American Talmud”?), and to read generations of commentaries, controversies, and reform proposals. Always to ask ourselves, is its implementation consistent with its principles? If not, how can we return to the original paradigm in our own days?
This Constitution Day, let us be in justifiable awe of our constitutional heritage, but let’s not be afraid to be critical, to be reformist, to take the difficult steps towards national t’shuvah.