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The Supreme Court & the Constitution
Updating the Sacred (?) U.S. Constitution
Updating the Sacred (?) U.S. Constitution
Senator Rick Santorum is running for the Republican nomination for President. On the platform he lets out a string of invective against his fellow candidates, who – he rants – are not pure conservatives like him. His left arm goes high in the air, waving the bible of his conservatism, the U.S. Constitution, one of the most radical political documents ever written. What irony! that the U.S. Constitution, once the symbol of daring new thought, has become for Mr.Santorum and his petrified wing of the Republican Party, a symbol of equally petrified old thought. It has become Holy Writ, appealed to in the same breath as God himself, who apparently was present in Philadelphia in the summer of 1787, guiding the unruly convention toward the ultimate wisdom represented by their proposed constitution.Abstract:
I have news for Mr.Santorum and his flock: The Constitution is not biblical. It's not divinely inspired. It was a compromise disliked by many (Benjamin Franklin, for example). The Constitution as adopted was badly flawed: It permitted slavery to continue; it didn't guarantee rights; its system of elections and representation needed a complete overhaul; it left unclear the relations between the states and the federal government, which led to a horrible civil war. In Lord Acton's words from 1899, "...the instrument, as it stood, was a monstrous fraud. And yet, by the development of the principle of Federalism, it has produced a community more powerful, more prosperous, more intelligent, and more free than any other which the world has seen." (These thoughts and the quote are from Lord Acton: "Lectures on modern History, 1899-1901." Cambridge University Press 1906.)
The Constitution has succeeded, not because it was sufficient as written, but because it provided the mechanism for change. The greatness of the document lies in large part in the amendments that have been made to it, flawed as they also have been. It was meant to be flexible: to be maintained, corrected, and updated as needed, not to be left untended to rust like an unused farm implement behind the barn. By now it has unfortunately rusted badly, and our rare ad hoc amendments have been foolishly tacked on with little thought to clarifying just what they amend. I propose here a process for an update of our Constitution that will not include substantive amendments. The goals are first to have a modern, readable document, with the practical value that it can be read and understood by all, and second to finally make it our Constitution, not just that of the 18th century founders. They originated it and wrote it to solve the problems of their time, but it must be every generation's responsibility to ensure that it's up to date and serves the needs of the new present.
Why update the Constitution?
b. The Constitution is full of outdated provisions. Unfortunately, our silly and irresponsible procedure of tacking on amendments at the end, but never deleting superseded provisions (and no amendment, except the 21st, even bothers to specify what text is being superseded – a procedure unthinkable in modern legislation), has left a jumble of valid and invalid text which is meaningless without notes. For example, Article 1, section 2 that apportions representatives to the House, still says that slaves count as 3/5 of a person. Similarly, most of the sections have outdated provisions, some are invalidated by amendments (or probably invalidated – we're not always sure), and some are just irrelevant, like Congress' authority "to grant letters of Marque and Reprisal."
c. The Constitution was written in and for another world. Its authors were well-educated gentry with plenty of experience in their form of gentry-led democracy, but with no faith in the dangerous idea of mass democracy. It was clear to them that the gentry needed to control the government. Total democracy was unthinkable – it would result in the rabble taking over. Nevertheless, they allowed the near-rabble (free, white, land-owning heads of household) to vote for representatives in the House. We've made many corrections to their early efforts, by way of amendments. But most of these amendments are well over 100 years old, and today they also need review.
d. By letting the Constitution age to the point of uninterpretability, we have lost control over its meaning and have in effect given the nine justices on the Supreme Court authority to amend it without the people's approval. We don't just have 27 amendments, we have many more, due to the Court's reinterpretations of what the founders probably thought were clear words. For example, the founders wrote in the First Amendment that "Congress shall make no law..." establishing religion, restricting freedom of speech, etc. They actually meant what it said; this restriction derived from the partition of power between the states and the new federal government, and it was meant for Congress only. The states still retained the power to restrict liberties or support religious institutions. But in its decision in Everson v. Board of Education (330 U.S. 1, 1947), the Supreme Court ruled that the meaning of the First Amendment would now change, it was to apply to the state legislatures as well as to Congress. This ruling was clearly a major change (i.e., amendment) to the Constitution, though no new words were added to it. The Court simply amended the meaning of the Constitution without involving the American citizens. (It should be added that the Court in this case referred to the 14th Amendment as requiring their reinterpretation, although this wholesale application of congressional limitations to the states was no more the intent of the authors of the 14th Amendment than it had been of the authors of the First Amendment.)
If we want the Court to continue to rewrite the Constitution, we can let it get as obsolete as it will, and its meaning will eventually become unrecognizable without an interpretive manual. But if we want a Constitution that is clear and understandable, and which only the people – not an unelected court – have the right to amend, we need to not only bring it up to date, but to prescribe a program of maintenance that will react to the need for further updates.
How should we update the Constitution?
What will we have achieved at this point? We will have made meaningful improvements, but not substantive changes, to the Constitution. The law will not have changed, but yet we've made progress. How so? We will have achieved a couple of necessary and meaningful things: We will have acknowledged the idea that the Constitution needed updating, and will have made a necessary start on that. We will have affirmatively taken responsibility for the Constitution, and reminded ourselves that it's up to us to make sure our Constitution is our Constitution.
After this preliminary formatting work is completed, we should look to the proposed permanent Joint Congressional Committe on the Constitution to consider additional improvements. What we have seen here is just a start. For one thing, there are dozens of provisions (such as Article I, Section 10: No state shall ... enter into any agreement or compact with another state,), that may no longer be helpful or needed, there are sections that should be moved, the entire document should be given a modern legislative paragraph numbering to permit proper referencing, and the word usage should be updated ("corruption of blood??"). Twenty dollars should probably no longer be the trigger level for jury trials, violation of state liquor laws hardly needs to remain a federal crime (the only federal crime in the Constitution, other than treason), and several similar anachronisms ought to be cleaned up. Then, and forever, the proposed Constitutional Committee ought to arrange conferences and debates, and sponsor research to provide the basis for a continuing maintenance and update program for the Constitution. The twisted reasonings that the Supreme Court occasionally has offered as their opinion on the meaning of provisions of the Constitution tells us that our supreme law is unclear, and it tells us where it is unclear. The best guarantee of a democratically determined and supported Constitution comes from each generation taking part in adjusting the Constitution to make it our own. Without that ownership in the Constitution it will drift into "uninterpretability" and eventually into irrelevancy.
The above program may seem quite doable, but knowing the limitations of today's Congress, it may be that even the positive, sane, and objectively noncontroversial steps I have outlined will somehow become politically charged in the partisan near-paranoia that seems to reign in Congress. It may have to wait for a more useful Congress, and that could happen as soon as November of this year. It's all up to us, the voters.
(P.S. of April 2013: See this month's essay on the potential power of the states to take the lead in managing the Constitution.)