[SOUND] At the beginning of this part of the lecture, I said I wanted to focus on two questions. First, what functions does the constitution perform for society? And second, why achieve these functions through a constitution? We should not assume that a constitution was inevitable. For example, in England, there was not then and is not now a written constitution. Most countries throughout world history prior to 1787 did not have a written constitution. It would be easy to imagine the framers of government designing it, putting into initial law. That law then could be changed like any other law, but the constitution is different. And so this requires asking the question, why is the constitution different from all other laws? And the answer to that is the constitution is different, because it's so much more difficult to change than any other law. Any law adopted by Congress can be modified or repealed by Congress. Any law adopted by a state can be modified or repealed by the state legislature. Any law adopted by a city council, any ordinance can be modified or appealed by that city council, but the constitution is intentionally made very difficult to change. The process of amending the constitution is found in Article V. Article V outlines two different procedures that can be used to amend the document. One of these has been used 27 times in all. The other never has been used. The procedure that's been followed thus far is Congress by two-thirds vote of each house can propose a constitutional amendment. It's then adopted, if ratified by three-fourth of the states. This of course was the procedure that was used to adopt the Bill of Rights. It's been used 17 times since 1791. It's not very often. In fact, when you think about it, two of those amendments since 1791 would oppose the prohibition of alcoholic beverages and then to repeal prohibition. Since 1791, only 17 amendments been added to the United States Constitution. It is a tremendously difficult process. The other right that article V outlines has been used even less. It's never been used. Article V says that two-thirds of the states can call for a constitutional convention. If two-thirds of the states do this, then Congress is to call a constitutional convention, then that constitutional convention can propose amendments. Those amendments are deemed ratified, if ratified by three-fourths of the states. This is a procedure, as I said that's never been used though, there have been calls for this. A number of states, for example, over a fairly long period of time have called for a constitutional convention to pose an amendment requiring a federal balanced budget to prohibit congress from having budget deficits. All sorts of fascinating unresolved issues arise. Do the states have to call for a constitutional convention for a balanced budget amendment in a specified period of time or if they do so over decades? And that gets to two-thirds states is enough. What if Congress doesn't call a constitutional convention even after two-thirds of the states request one? If Congress calls a constitutional congress into existence, is it limited to the specific topic like the balanced budget? Or can it focus on anything? Could it do what the constitutional convention in 1787 undertook, drafting a whole new constitution? It will be interesting to see if this procedure ever was used to this point, only the former procedures than the one applied to amend the constitution. So if I convinced you that what makes the constitution different from all other laws is that it's much more difficult to change, I then get to a profoundly important question. Why constitute our government in our political system? And the documents are difficult to change. We regard our society as a democracy. And democracy seems, if nothing else, to include a conception of majority rule. Yet, no one alive today ever ratified, participated in the ratification of the Constitution. Probably most of us today who are in the United States didn't have relatives in the country back in 1787. So why should a nation that thinks of itself as a democracy be governed under a document written two and a quarter centuries ago, and that's intentionally made so difficult to change. Even if a majority of society wanted to change the constitution, that wouldn't be enough. You need the super majority, two-thirds of both house of congress, three-fourths of the states. My answer to this question is that the framers knew from world history that especially in times of crisis, there's a tendency to want to centralize power to be a tendency to engage in repression. They wanted to put the most basic values in a document that was intentionally difficult to change. And so, they put the things like structure of government. Allocation of powers to the federal government and the states. Individual liberties Into this document that was very difficult to change. In this sense to quote Harvard Law professor Laurence Tribe, the constitution is an elaborate edifice to make sure that our short-term passions don't cause us to lose sight of our long values. I've often found a persuasive analogy in a story from Homer's Odyssey, the story of Ulysses and the siren. According to Homer, there was a siren that had a beautiful song and sailors would be lured to it. They would crash their boats on the rocky shoals. Ulysses wanted to hear the siren song, but obviously for it to not cause his death. And so Ulysses said, he would have his sailors tie Ulysses to the mast, so he couldn't steer the boat to crash. And he had the sailors put wax in their ears, so they could not hear it. What Ulysses was doing was tying his hands, so he wouldn't be lured by the siren's song. I think the constitution is the way in which society ties its hands. The way in which society tries to make sure that in times of crisis, it's not lured by the siren of repression or the siren of centralizing power. In this sense then, it's possible to appreciate why the constitution is intentionally made so difficult to change, but in these races equally profound questions in evaluated in constitution. Has the constitution succeed or is it failed over the course of American history? Obviously, the answer is to be both. The constitution has succeeded in creating more freedom for a longer period of time, for more people, then any other system of government in the history of the world. And yet, their ties with the constitution is deeply failed. When we think of the slavery that existed from 1787 to 1865. When we think of how the supreme court proclaimed and enforced the doctrine of separate, but equal that led to segregation of every aspect of southern life and life in many northern states. When we think of the supreme court upholding the evacuation and internment of Japanese Americans. 100 and 10,000 Japanese Americans, 70,000 citizens during World War II. When we think about the supreme court failed to stand up to the repression of the McCarthy era and we think of things going on today, we see the value of the United States Constitution. And so I challenge all who are watching and listening this lecture, throughout all of what I'm talking about, to think about to what extent has the constitution succeeded or failed in this enormously important task? And to the extent it's failed, why? And what might make it better?
