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The Supreme Court & the Constitution

Updating the Sacred (?) U.S. Constitution

March 2012

The U.S. federal constitution was a great conception, written for the 13 former British colonies of the late 1700s, by a group of quarrelsome and brilliant European-American men with little faith in popular democracy. We now have 225 more years of experience with democracy, and we're no longer just European-American men. The grand old 18th century constitution has become nearly impossible to interpret – its meaning now depends on which judge makes the attempt. It is time to put the original document under glass, venerate it as our founding treaty, and improve it to suit the 21st century. Here's a recommended approach.
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.

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?
a. When a law reaches the point of obsolescence where judicial decisions based on it depend largely on who the judge is, it has become a useless, indeed a dangerous, law. Our Constitution has reached that point: on constitutional issues our Supreme Court now represents a Rule of men, not a Rule of law. (Consider the supreme importance of the question: Which party has appointed how many justices?) There is no agreement on what many of the terms of the Constitution mean; instead judges are depending on their personal proclivities to guess their way through cases based on it. If the Constitution could speak, it would cry out, "Update me!" An important point is that the Constitution was written to be the basis for new law made by Congress. But, because Congress has balked at clarifying the Constitution through legislation, the courts find themselves today having to apply the principles of the Constitution directly as law. But while it is (or was) a fine Constitution, it's not suitable for that use, partly because it does not define its terms.

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?
We should first recognize that an update should be part of a continuing maintenance program for the Constitution, to ensure that it does not again reach the state of obsolescence that it currently has. Our first task then is to set our goals for the update project and the maintenance program. What would we like the Constitution to be like? Clearly, this is a question that will draw different opinions. My general suggestion would be that we take the matter a little at a time, starting with a formatting phase where there may be broad agreement. We can update the Constitution quite a bit without actually changing any provisions. Having done a formatting update, we will be used to the idea that the Constitution should speak to our time, which may make it easier to do more substantive amendments as necessary. Here, then, are some suggestions as to how we might proceed. (I leave out the organizational questions, which are important but not fundamental, such as the mechanics: Should there be conventions? Public hearings?) It should not be a rushed process, and should be held under the auspices of Congress. I suggest that a joint congressional Committee on the Constitution (which ought to be permanent) should approve the work after each of the following steps. (But let's not forget that the states are the final arbiters of changes to the Constitution, so after the formatting phase is completed by the congressional committee, the product needs to be approved by three-fourths of the states.)

  1. In the first step – I'll call this phase 1a – we bring the amendments into the body of the Constitution, where they should have been in the first place. I suggest a new Article 5: The People, to hold the Bill of Rights and several of the other amendments that define rights and responsibilities of the people. When we finish this step, the product is still the original Constitution, but with each amendment incorporated, adjoined to the text it replaces or expands, if any. (Some amendments will be broken into segments, as they replace or expand text at different points in the Constitution.) Here's what the product might look like after this phase. The new text from the amendments is underlined, the text which is rescinded or superseded by the amendments is shown struck through.
  2. When the proper place in the text has been found for all the amendments (except for 18 and most of 21 – the Prohibition amendments – which are moot and should be left out), the next task will be to excise the original text that the amendments were intended to rescind. (This should obviously have been done historically, as new amendments were made.) This will eventually need expert hands, and the work will tell us whether our amendment process has been unambiguous, as it should be. The product at this point – phase 1b – is still the original Constitution, but without the text that has been superseded by the amendments (i.e., the text that was in strike-through type in phase 1a). In this version I now show in strike-through the text that is clearly moot or superannuated, and that ought to be removed for clarity. Some of this text refers to specific matters that were to happen in the 1780s, and some is meta-textual matter that should not have been brought into the text of the Constitution in the first place, e.g., the 17th amendment's note about what should happen if the amendment were not approved. In some cases such removal has necessitated the insertion of a new word or two, and these are underlined. I have also slightly modernized the orthography by changing most of the capital letters that start every noun to lower case, which is in line with the orthography used in the most recent amendments.
  3. So now everything that has been added by amendments is in, and everything rescinded by the amendments has been removed, along with the moot and superannuated text. (At this point there are many such obsolete items still hanging on in the document, but they require more than mere formatting work.) After excising such dated material, our Constitution now looks a little different, but it has still not been changed, only cleaned up and organized a little more rationally.

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.)

© 2012 H. Paul Lillebo

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