What Is a Constitution?

Portrait of President Franklin Roosevelt from a 1941 propaganda poster

By Thomas Neuburger

constitution (n) : The rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state. —Oxford Reference, Oxford University

“We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” —Preamble to the U.S. Constitution

I’ve been writing much about constitutions lately, especially the American Constitution; for example, here and here.

My contentions are these:

First, that the American constitution has gone through three major revisions, each spurred by crisis to correct flaws in the previous one.

And second, that the current constitution has so far drifted from the previous public agreement (the FDR or New Deal constitution) as to be almost unrecognizable — which makes us due for a fourth.

The Degraded Constitution

Our third (New Deal) constitution was in place from its 1937 confirmation by the Supreme Court through roughly 1980. It is now 2025, and much of that aggregate agreement, that constitution has been completely or partly degraded, repealed in practice.

For example, there’s no more Fourth Amendment; the right to be free of “unreasonable searches and seizures” is gone completely. The same with much of the Thirteenth (prison labor is slave labor), most of the Fourteenth (equal rights and due process are disappearing fast, except for corporate persons), and all of the Fifteenth (the right to vote is no longer guaranteed).

In addition, the New Deal constitution’s control of the economy as a way to “promote the general welfare” has been reversed; governmental control of the economy now helps the wealthy impoverish the people, the opposite of its intended goal.

What Is a Constitution?

The Oxford Reference, a digital research platform run by the Oxford University Press, defines “constitution” this way:

The rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state. Most states have a written constitution, one of the fundamental provisions of which is that it can itself be amended only in accordance with a special procedure. The constitution of the UK is largely unwritten. It consists partly of statutes, for the amendment of which by subsequent statutes no special procedure is required (see Act of Parliament), but also, to a very significant extent, of common law rules and constitutional conventions.

It’s those “constitutional conventions” that interest us here. Written (“codified”) constitutions can be formally amended — ours has been amended in writing 27 times — but I would contend that even so-called “fully codified” constitutions like ours have uncodified parts, and that these parts are subject to amendment by unwritten agreement.

Consider again the fate of the Fourth Amendment (see above), which has been almost completely ignored by long bipartisan practice. We’ve indeed traded “essential liberty” for (the illusion of) safety, to paraphrase Benjamin Franklin. The words of the Fourth haven’t changed. But agreement about how they’re applied certainly has.

Why Use the Term ‘New Constitution’?

Whether, like some, we call these changed agreements “new constitutional orders” or new constitutions, makes no real difference in practice. So many nations have fully uncodified (Israel, Saudi Arabia) or partially uncodified (Canada, China, the UK) constitutions that the use of the term “new constitution” when there are radical reversals and changes seems completely justified.

I also think it’s important to use the term “new constitution,” since it fully recognizes the radical nature of some changes. Consider our own partially codified constitution:

Our first — the document we call “the Constitution” — radically changed relations between the states and the federal government as established by the Articles of Confederation.

Our second — the Constitution with the codified Reconstruction Amendments — entirely repealed (made moot) everything the original document said about enslaved labor.

And our third, the entirely uncodified New Deal constitution, rests upon radical reinterpretations of parts of the original document — for example, the Commerce Clause in Article I, and the due process provision of the Fifth Amendment. No codified amendment was passed during FDR’s presidency, yet there's a sea change difference afterward about government power.

The Next American Constitution

This matters because, as I’ve argued, we’ve so drastically changed the New Deal constitution as to make it almost unrecognizable in many important ways.

So we’re certainly due for a new one. In fact, the current administration seems determined to take to extremes, and also to make official by violating the court, all of the radical changes to the New Deal agreement. That agreement stood until Nixon expanded presidential power (both in 1968 and later) and Reagan revoked the New Deal agreement about both the economy and the Preamble’s instruction to “promote the general welfare” of the nation’s people.

The next constitution, if it lasts — I’m calling it, provisionally, the Neoliberal constitution, though that doesn’t capture the dominance of the security state — will be the first to reverse the people’s ability to live a good life. As a result, it may not survive. The present order is certainly deeply unstable, absent a muscular, enforcing security state.

I’m going to stay with this theme. I wrote “The Next American Constitution” for the SF Chronicle in 2018 with the intention of authoring a book. The project was never completed because too much was then unknown. The destruction wrought by Nixon, Reagan, Clinton, Bush and Obama was extensive. I could see the way things were going, but I thought the outcome in doubt. Would a Washington, Lincoln or Roosevelt appear? The 2016 primary made that seem possible. Certain? No. But possible.

The outcome may still be in doubt — but not by much. Time to revisit the project. The Fourth American constitution waits in the wings, dressed and made up, ready to take the stage. The time to discuss it is now.