Would You, Could You, Change a Thing?
Friedman, Barry, Constitutional Commentary
This game has two parts: pick some aspect of constitutional law or constitutional history and change or erase it; then explain what difference it makes. The first part of the invitation is irresistible. Gone with a blink are Dred Scott, Korematsu, the slavery clauses of the Constitution, defiance of the Supreme Court's decisions in Worcester v. Georgia and Brown v. Board of Education. Indeed, because constitutional law and constitutional history are so tied up with all of our history, maybe it would also be fair game to eliminate the Trail of Tears, the assassinations of Kennedy, King, Kennedy, and Lincoln, lynchings of countless African-Americans, of Leo Frank, race riots, Vietnam, Kent State. What awesome power, to remove all those mistakes, all that pain and suffering in an instant.
It's the second part that is the problem. Parlor games are fun, and I don't mean to be a spoilsport. But having been granted the awesome power to change the constitutional past, it may be worth considering the relationship of that constitutional history to who we are today as a people. We are fundamentally formed by our history. Change our history and we necessarily are changed.
There are three parts to this argument. They are self-contradictory in certain ways, although their ultimate point is the same. First, I argue that the premise of the game may be flawed: we may be so fundamentally who we are that we do not have the choice of eliminating any one untidy aspect of our past. Second, I suggest that because we fundamentally are who we are, it is possible that even if particular changes were made, the future would have remained much the same. Finally, I explain that because the very events we most would like to eliminate likely were quite important, their elimination is equally likely to be most consequential in ways we cannot predict.
My point is this: we should be cautious of changing anything even if we could. There is an intimate relationship between America as a people and our constitutional history. It would require an extraordinary degree of confidence to eliminate even the most horrible of tragedies and remain certain that in the long run it would not change us for the worse.
We have been invited to change some aspect of the past. That presumes that we can. The power we have been granted is, for example, to take an eraser and rub out that which is troubling, abhorrent, wrong-minded or tragic.
But can we truly change the past? Even in the context of a parlor game, it is worth examining whether the events and forces that brought us to the point we would like to excise themselves leave way for the surgery.
Certainly some things we would like to change appear to be serendipity and are susceptible to alteration or even "correction." Any 5-4 decision of the Supreme Court could seem an accident of when the case arose. A good choice for this parlor game is the fact that Franklin Roosevelt got no appointments to the Court during his first term in office: replace one of the four Horsemen with a Roosevelt appointee and the entire Court-packing brouhaha might have been eliminated.
But there are other events that are so ingrained in who we are that it is impossible to think we can pluck them away given all the history that brought us to that point in the first place. Another obvious candidate for this game is removing the slavery clauses from the Constitution. Yet, the clauses that were placed in the Constitution recognizing and regulating government authority over the slave trade were put there after serious debate and reflection. They are the product of a long history of events that preceded the decision. Those clauses represented a compromise of sorts, albeit a regrettable one. As unfortunate as it seems to us, it might have been impossible for our forebears to have resolved the matter in any different way.
How then, can we claim the ability to achieve what they could not? …