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September 19, 2012

Slate: What's next for the U.S. Constitution?

Monday marked the 225th anniversary of the Constitution of the United States, publicly unveiled in Philadelphia amid considerable fanfare. As Americans think back on the last two and a quarter centuries, we should also think ahead by the same amount. What will and what should the Constitution look like 200 years hence? Or if that seems too mind-bendingly futuristic, what will and should it look like in 2020 or 2121?

The most powerful portents of the future are to be found in America's existing state constitutions, the proverbial laboratories of American democracy. These 50 documents have converged to form a distinctly American model of governance — call it "American exceptionalism," if you like. For example, unlike the regimes in various democratic countries around the world — England, Germany, France, Israel, India, Australia — almost all 50 states follow the same basic formula, featuring ratified written constitutions, bicameral legislatures, chief executives who look remarkably like mini-presidents and robust bills of rights enforceable in ordinary courtrooms.

This is our basic American model, and it's not going anywhere. Proposals to amend the federal Constitution are taken seriously when they fit within this framework — and especially when they have already been adopted and road-tested by the states. A brief history lesson: The federal Bill of Rights, ratified in 1791, tracked various pre-existing state bills of rights; the federal Reconstruction Amendments of the 1860s, ending slavery and protecting free blacks, borrowed from the best constitutional practices of antebellum free states; and the federal Woman Suffrage Amendment prevailed at the continental level in 1920 only after women had won the vote under many state constitutions.

Indeed, the Philadelphia Constitution of 1787 to which we wish happy birthday was itself built upon state constitutional templates. In their decision to put the federal Constitution to a special ratification vote of the people, the framers copied the models of the Massachusetts Constitution of 1780 and the New Hampshire Constitution of 1784. The idea of a federal census borrowed from the Pennsylvania Constitution of 1776 and the New York Constitution of 1777. The elimination of property qualifications for federal public servants likewise borrowed from Pennsylvania, as did provisions for all federal lawmakers to be compensated from the public fisc. The broad outlines of executive power combined the best of the Massachusetts and New York constitutions. Various elements of judicial independence drew upon state antecedents, as did the U.S. Constitution's basic commitment to trial by jury.

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