The Ark of America

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Moreover, the parliamentary idea might dramatically shift the ballast and introduce considerable instability. Even in the stable British system, governments can be voted out of office by Parliament. Would Americans in the midst of a crisis -- the Iran-contra scandal, for example -- wish to subject the Administration to no-confidence votes?

It is a tribute to the Constitution's adaptability that since the Bill of Rights was added in 1791, only 16 more amendments have been ratified. Yet new contexts have arisen that Madison and his contemporaries could not foresee. The Bill of Rights, for example, says nothing directly about the right of privacy, what Supreme Court Justice Louis Brandeis called the "right to be let alone." In the 18th century, the power of Government to intrude on the individual was acknowledged in the Fourth Amendment ban on unreasonable searches and seizures. But the bureaucracies, technologies -- and social problems -- of the late 20th century make the issue of privacy considerably more complex and important. Government is not the only intrusive agent. Says Harvard Law Professor Arthur Miller: "Whether you are talking about computer data banks or AIDS testing or drug testing or surveillance, the notion that the only threat to the individual in our society comes from the nation-state is nuts. The primary threat to individual privacy in this country comes from < entities that are not governmental: hospitals, corporations, each other." The Constitution contains no guarantees against nongovernmental threats to privacy.

There are other contexts in which the Constitution offers little guidance: in genetic engineering, in the issues of the right to die and the right to life. At a time when doctors can perform surgery on a fetus before delivery, when exactly does the law consider that life has begun? Does that fetus have constitutional rights? What is death? Who has the right to be alive, and who has the right to choose death?

Another area of silence in the Constitution: economic rights, the right to a job, the right to shelter, the right to food. The first constitution to address such rights was the Mexican constitution of 1917. Since then, the idea has spread to many 20th century constitutions around the world. But as Rutgers Law Professor Albert Blaustein points out, "civil and political rights are rights of abstinence. They are rights against the state. When you start talking about social and cultural rights, you are asking for rights of action, affirmative rights."

Most well-drafted constitutions of this century -- those of India, Nigeria and Liberia, for example -- have separated economic rights from political rights and placed them in different sections. Political rights are justiciable. Economic rights are "aspirational" or "programmatic," which is touching but perhaps no more than that. Aspirational clauses are impossible to enforce unless the government runs the economy. Food, jobs, shelter and other needs of that kind are most acute in countries that can least afford to supply them, however handsomely a constitution is composed. Besides, countries like Liberia and Nigeria may cherish the most articulate aspirations, but as T.S. Eliot wrote, "between the idea and the reality . . . falls the shadow." The reality may be one of coups, civil wars and misery.