When I give readings, folks want to know what the Founding Fathers would say about our currently dysfunctional Congress. There seems to be a widely shared assumption that the most prominent members of the founding generation represent the gold standard in political leadership, and our contemporary politicians are debased currency. As one commentator put it, "Once you compare then and now, you've got to believe that Darwin got it exactly backward."

My standard response is to warn the audience that making historical comparisons in such a straightforward then-and-now fashion is misguided, and that bringing the founders into the present is like trying to plant cut flowers. Moreover, canonizing the Founding Fathers is more hagiography than history.

Once you understand how the Constitution was created, rosy myths evaporate. Fifty-five white males gathered in Philadelphia, imposed complete censorship over the deliberations, regarded slavery as the ghost at the banquet (it could not be openly debated), and then had the audacity to send the document to the states under the rhetorical mantle "We, the people." If our modern values of inclusiveness, transparency and diversity were imposed on the founders, the Constitution would never have happened.

Lately, however, I have been having second thoughts, prompted by recent arguments linking the gridlock in Congress with the purportedly outdated and anachronistic character of the Constitution itself. Those arguments lead to the idea that we need a second Constitutional Convention to rectify the problem.

In truth, most of the prominent founders, including Jefferson, Madison and Adams, would probably not object to such a proposal - indeed would be surprised that their 18th-century creation had lasted as long as it has. Jefferson thought the Constitution should be redone every generation, every 20 years or so.

But, a second Constitutional Convention? It could never succeed, chiefly because the secrecy, elitism and the rest of 1787 reality could never be duplicated in our time. (And ought not be.) Besides - and here I feel an obligation to defend the legacy of the founders - the current gridlock in Congress is not a function of anything in the language of the Constitution.

Gerrymandering and primary election politicking are surely part of the problem. So too is the plutocratic character of our political culture in what has become, in effect, a second Gilded Age. But the core problem in getting legislation through the House and the Senate are procedural rules adopted by both bodies over the last century.

In the Senate, the culprit is the filibuster. It means a supermajority of 60 votes is required for passage of any and all legislation. (The "nuclear option" weakened the filibuster when applied to some presidential appointments, but not to legislation.)

In the House, the source of gridlock is the tradition that gives the speaker the authority to block a vote on any bill that does not have the majority support of his or her party.

Again, neither of these procedural principles is anywhere to be found in the original text or subsequent amendments to the Constitution. So we cannot pin our gridlock problems on the founders. To the contrary, they specified that supermajorities would only be required for extraordinary kinds of legislation, primarily foreign treaties and constitutional amendments. All ordinary bills, they clearly assumed, would be approved or rejected by a majority vote.

But let's push it to the next level. Neither the Senate nor the House, under the pretense of controlling its own procedural rules, has the authority to alter the meaning of the Constitution. The only way to do that is by a constitutional amendment.

Members of the Senate will cry foul at any argument that questions their discretionary authority. They have exercised that authority for so long, and their convictions about the special status of the Senate are so strong, that they sincerely believe the founders designated them as Delphic oracles.

Not so. The great and not-so-great men in Philadelphia indeed wanted the Senate to serve as a check on the democratic excesses of the House. But they believed that goal would be achieved by giving senators six-year terms, making them less vulnerable to swings in popular opinion. Nothing in the Constitution gives the Senate the authority to redefine the Constitution as it sees fit.

The current Congress is dysfunctional, then, largely because it has adopted procedures that deny the rights of the majority in ways that violate the original intentions of the founders. The proper place to adjudicate this issue is neither the House nor the Senate but the Supreme Court, which is the ultimate arbiter of what the Constitution says.

If by some miracle we could bring Madison back to testify to the high court in such a proceeding, the "Father of the Constitution" would apprise the justices that the current modus operandi in Congress is not what he and his colleagues had in mind. In short, he would declare it unconstitutional.

Joseph J. Ellis is the author of "Founding Brothers: The Revolutionary Generation." He wrote this for the Los Angeles Times.

Distributed by MCT Information Services


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