America is showing its age Institutional arthritis has ossified its politics

Very few people in American history have done anything other than venerate the constitutional settlement of 1787. And the few dissenters — such as the abolitionist William Lloyd Garrison, who branded the constitution a “covenant with death and an agreement with hell” because of its protection of slaveholders — have been regarded as shocking iconoclasts.

This underlying conservatism, the pose of moving forward while looking back, is characteristic of nations founded in revolution. You see similar traits in the political culture of Cuba or the old Soviet Union. After all, if you believe your revolution inaugurated a new order in which despotism had been banished by the bright light of freedom, then any further revolution would be revanchism of the most insidious kind. As the novelist James Fenimore Cooper explained in the early 19th century: “Here [in America], the democrat is the conservative, and thank God he has something worth preserving.”

Yet, at key moments in its history, the fixation on its founding moment has paradoxically enabled creative transformation. This was even true of the nation’s only true existential crisis to date, the slaveholders’ rebellion of the 1860s, which subsequently became known as the Civil War.

William Lloyd Garrison rejected the constitutional settlement, but Lincoln, who also hated slavery, saw the matter differently. Even as a young man in 1838, when he urged his generation to let “support of the Constitution and Laws” become the “political religion of the nation”, Lincoln had understood the danger to the revolutionary settlement as coming more from enslavers than from radical abolitionists. The example uppermost in his mind was the recent murder in Alton, Illinois, of an abolitionist newspaper editor, Elijah P. Lovejoy, by a mob backed by the city’s mayor. A quarter of a century later, President Lincoln led an administration that raised mass armies, waged industrial-scale war, and emancipated four million enslaved people, all in the name of preserving the founders’ legacy.

The outcome of the Civil War, with the breaking of the power of the slaveholding class, the formal commitment to equal rights, and the strengthening of the potential power of the federal government, is sometimes referred to as America’s “Second Founding”. This is a helpful formulation in many ways, and yet at the time what seemed more important was not the replacement but the preservation of the founders’ legacy. The 13th, 14th and 15th amendments, passed in the wake of the Civil War, fundamentally re-cast the relationship between the national government and its citizens. The 14th amendment defined citizenship for the first time — in a way that included black people — and other subsequent transformations in American government such as the growth of the welfare state and the enforcement of civil rights in the 20th century depended upon it.

Had America been more like France, the post-Civil War constitutional settlement might have been called the “Second American Republic”. But America is not France, as Americans never ceased to point out — fear of swivel-eyed, guillotine-wielding Jacobinism was the 19th-century equivalent of 20th-century America’s obsession with communists. No one of any significance in the post-Civil War United States called for an entirely new constitution. Having just waged an unimaginably bloody war to preserve the constitution, the last thing they were going to do was discard it. And so, the constitutional innovations of the post-Civil War years were achieved not in spite of the fundamentally conservative nature of American political culture, but because of it. Only by presenting transformation as a validation of the founding could real change happen.

The same was true in the US’s other revolutionary decade, the Thirties, when, in the face of terrifying levels of mass unemployment, Franklin D. Roosevelt’s administration massively expanded the federal government’s role in national life in order, once again, to keep the revolutionary settlement intact. The imagined approval of the bewigged gentlemen of the founding era was as important to Roosevelt as it had been to Lincoln, but, lo and behold, they turned out to be surprisingly sympathetic to change, so long as it was in the interests of preservation.

Today, however, such flexibility seems hard to imagine. The Declaration of Independence was signed 12 score and seven years ago. That’s at least eight generations of political leaders. But curiously, the more the founding moment recedes in time, the greater its ossifying grip on American politics seems to be. If America is an old country, it is showing its age: it’s crotchety, stuck in its ways, telling endless stories about the past. Institutional arthritis prevents the natural flexing that’s needed to deal with a rapidly changing society.

It is now more than half a century since a significant constitutional amendment was passed (the 26th amendment allowing the reduction of the voting age to 18 was ratified in 1971, although there was also an uncontroversial amendment ratified in 1992 which delayed raises in congressional salaries until after the next election). With politics so polarised, and the parties so evenly balanced, any fundamental institutional reform now seems impossible.

In the Nineties, no one could imagine it being acceptable in the modern age for a president to be elected with only a minority of the popular vote because of the workings of the Electoral College. But then it happened in 2000, and again in 2016, and, after each, calls for an amendment to abolish the Electoral College went nowhere. The Senate ensures that voters in rural, sparsely populated states such as Wyoming are vastly more powerful in Washington than the voters of, say, California. And whatever the defence of this constitutional curiosity might be, the point is that it is practically impossible to change. With a majority on the Supreme Court now committed to the eccentric doctrine of judicial originalism, the ghostly chaps in silk stockings seem more than ever the pale-faced opponents of institutional innovation.

Obviously, the US is, despite its growing inequality, a remarkably successful, wealthy society. It is still capable of policy innovation, and even (contrary to what you might think if you don’t have a sense of historical and comparative perspective) one of the more successful multi-racial societies in human history. But at the same time, it is, to put it mildly, difficult to address issues of structural inequality when meaningful reform of the institutional structure is effectively off the table. How many presidents can be elected with fewer votes than their opponents before the system cracks? For how long can the Supreme Court retain authority if the perception continues that it makes hugely consequential decisions while being unrepresentative and unaccountable?

But the founding fathers have been flexible fellows in the past, and with their imagined blessing huge changes have been wrought. Perhaps even the oldest and crankiest country can rediscover its youthful capacity for reform, especially if it does so while insisting that it is doing so in order that the important things remain the same.