The US has one of the older continuously-in-force constitutions in the world.

Or, does it? The Constitution was ratified in 1788, but the final state (Rhode Island; of course) did not ratify until 1790. Then, ten changes to the Constitution, referred to collectively as the “Bill of Rights,” were passed at the very end of 1791. The Constitution has been formally amended seventeen times since, and has been fundamentally reinterpreted hundreds of times by the judiciary. Is the 2024 Constitution the “same” as the 1788 Constitution, in any important sense?

In philosophy, this question of persistence of “being” often comes down to those who emphasize identity arguing against those who emphasize composition. The debate is neatly captured by the metaphor of the “Ship of Theseus.” Now, Theseus was (in myth, at least)  an Athenian king who killed the minotaur in the Labyrinth on Crete, and rescued the children of Athens, sailing off to the island of Delos in a ship. To commemorate this heroic rescue, the Athenians had an annual reenactment, sailing the same ship from Crete to Delos.

Well, sort of the same ship. The original ship was made of wood; water, salt, and sun had worked their destructive ways over the years. Some, then most, then all, of the planks and beams comprising the original ship were eventually replaced. The Greek pre-Socratic philosopher Heraclitus, in one of his koan-like “fragments,” raises the question of whether one can ever “step in the same river twice.” So Heraclitus likely would have come down on the “not the same ship” side, as soon as even one plank was replaced.

Plutarch, author of “The Lives,” famously summarized events this way:

The ship wherein Theseus and the youth of Athens returned had thirty oars, and was preserved by the Athenians down even to the time of Demetrius Phalereus, for they took away the old planks as they decayed, putting in new and stronger timber in their place, insomuch that this ship became a standing example among the philosophers, for the logical question of things that grow; one side holding that the ship remained the same, and the other contending that it was not the same.

For Aristotle, the essential being of a thing is its formal cause. That means the ship of Theseus is the same ship, because the formal cause, or design, does not change, even if  literally all the planks and beams and nails and ropes have been replaced. The new materials are all the same as the old ones, simply restoring the rotten wood and broken connectors to their former strength. The “new” ship would look, and in every respect behave, like the old ship had looked when it was new.  The composition of the wood is not important for the essence of the ship.

Some philosophers have added a wrinkle to the parable, positing a “scavenger.” The scavenger  trails along behind the ship of Theseus, picking up and carefully preserving each of the old planks and beams as they are replaced and discarded. In port, the scavenger takes a berth beside the ship of Theseus, and carefully reassembles all the discarded material. 

There are now two ships, side by side. One is the “original” ship of Theseus, in form and crew identical to the one that set out from port. The other is a “new” ship of Theseus, constructed of the actual old material that once, but no longer, comprised the ship. And of course it has a different crew, the scavengers. Which, if either, is the “real” ship of Theseus?

I raise this question (without answering it; I don’t know the answer!) to suggest a problem in talking about “the” US Constitution, as I suggested at the outset. Aristotle considered the obviously related question of the essence of the polis, or city-state. For Aristotle, the “constitution” (politeia) was the heart of the system of government. Aristotle’s view was that the constitution is the formal cause of the city, the reason for its existence, particularly justifying the sovereign office. But the same question — identity versus composition — has to be raised. Suppose the constitution is amended; is the state the same, or different? Suppose you think that one small change preserves the identity of the state; at what point are the changes in the constitution sufficient to be “different,” a new state with a new constitution? Further, suppose another state, a kind of “scavenger”, simply copies the constitution of the first state. Is it the same, or different?

The amendments to the US Constitution were substantive, real changes. They did not replace rotten planks or worn out beams with something identical, but stronger. (Incidentally, the museum-ship USS Constitution,  nicknamed “Old Ironsides” has been almost entirely remade, but the replacements — new iron sides, perhaps — are all to restore the original design and function).

American citizens ratified changes that fundamentally modified the way that Senators, and the President, are elected. The prohibition against broad-based taxes was relaxed, allowing a national income tax. And women and African-Americans were enfranchised, more than doubling the electorate. Is that the same Constitution?

In some ways, those changes are minor compared to the profound transformation in interpretation that has come from the Supreme Court. Many activities that were once prohibited for the federal government are now allowed, even encouraged. The “Commerce Clause” had once been interpreted to limit regulation of local markets. The 10^th Amendment had reserved, as a matter of presumption, all powers not specifically enumerated as belonging to  the federal jurisdiction.

For those of us who retain a fondness for the original Constitution, it is important to keep in mind the nature and scope of the changes that have been imposed, or allowed through indifference and inattention. As the new Administration considers reforms, and “efficiency,” I want to suggest a more ambitious agenda: rebuild the Constitution by restoring the older, stronger planks and beams, along two lines. What this amounts to is having two books open at all times: Friedman’s Free to Choose, and the US Constitution.

1. In general, activities not specifically enumerated in the Constitution as federal should be left to the states. The powers of the center simply do not include the police power, control or influence over education, or regulation of local health policy.
2. Activities that can be handled by commercial organizations should be. As I have argued recently, the problems of bureaucracy and the implicit “trouble tax” are not accidental. There should be a presumption in favor of voluntary private organizations, be they firms or non-profits.

The original US Constitution was not perfect. Amendments were inevitable, and in many cases — especially the expansion of the franchise, and guarantee of due process — changes were necessary. But the erosion of a presumption in favor of private action, and in favor of insulating state prerogatives over national power, has changed the Constitution in ways the people who framed the document wouldn’t even recognize. We can restore our ship of state to its original, and superior, form.