Tuesday, July 26, 2016

Constitutional Heresy

Let us begin, Dear Readers, with these stirring words from the preamble to the Republican Platform 2016 -

"We believe the Constitution was written not as a flexible document, but as our enduring covenant."

With all due respect to those who view the Constitution as Muslims view the Quran - that it is absolutely true and perfect in every detail - I think you're wrong.

I'm getting ready to lay out the heretical case for updating the Constitution, so if you are one of those people whose heads explode at the very thought of tinkering with The Most Perfect Document Ever Devised By Man*, you may want to read something else. But if you are willing to consider some alternatives to the belief that the Founders delivered the Constitution like Moses coming down from the mountain with the Ten Commandments, read on.

First of all, consider this: if the Constitution were not written to allow some flexibility and adaptiveness to changing times, why did the Founders make provisions for its amendment (Article V)? The amendment process was made cumbersome and difficult to discourage frivolous changes (such as amendments to outlaw flag-burning or to define marriage according to religious dictates), but it nevertheless reflects the Founders' understanding that the United States would grow, develop, and change over time, and that the Constitution would need to be able to evolve with it.

Now, consider the issue of "states' rights." Leaving aside for a moment the politically and racially-charged interpretations of the term, let's look back at the document the Constitution replaced: the Articles of Confederation. Here's what Article II says -

"Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

This is echoed in somewhat watered-down tone in the Tenth Amendment to the Constitution, which says -

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This reflects the delicate balance the Founders struck between the Federalists, who believed a strong central government was necessary to hold the country together, and the Anti-Federalists, who wanted to centralize power at the state and local level. The Federalists won the day, more or less, because the experience of trying to mold thirteen squabbling, quasi-independent states into a single nation required establishment of a government that could force them into some semblance of united action at the national level. We see the end result of the Anti-Federalist influence today, in the form of 50 states with a patchwork of uncoordinated and often conflicting laws and regulations that frequently inhibit interstate commerce and sow confusion in national decision making ... consider the wide variety of state laws governing elections as one example. Should we rethink the division of power between the federal government and the states? It's worth discussing.

And while we're at it, how are powers reserved "to the people?" Individual states have governments that can assume powers, but how do "the people" take on and execute powers of government?** And who are "the people," anyhow? Citizens? White citizens? Christians? It depends on who you ask, and the Constitution doesn't seem to be too clear on it.

Of particular interest in an election year, the Constitution does not allow for the direct popular election of the President, but rather by the electors of each state (Article II, Section 1, as modified by the 12th Amendment). This arrangement was created by the Founders because they didn't completely trust in the wisdom of "the people," and wanted to ensure that the nation was not governed by a tyranny of the majority. Alexander Hamilton wrote in Federalist 68 that

"The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications." ***

Is this still a valid concern? Should the Constitution be revised or amended to provide for direct popular election? I don't know, but the question comes up every four years, and is probably worth debating.

The First Amendment says that Congress shall make no law abridging freedom of speech ... but are campaign contributions "speech?" It also says Congress shall make no law "respecting an establishment of religion, or prohibiting the free exercise thereof," but is limiting the rights of one person because of the religious beliefs of another allowable under the Constitution?

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." What is an unreasonable search in an era of signals intelligence, GPS tracking, warrantless wiretaps, data mining, and imaging drones?

As long as we're making hamburger out of sacred cows, how about rethinking the Second Amendment? The amendment as written is confusing in one part (what does "a well-regulated militia being necessary" mean, anyhow?) and perfectly clear in another ("shall not be abridged"), and the courts that conservatives hate so much have come down fairly consistently on the most generous interpretation of the language. Political and social pressures combine to make any discussion of limiting gun rights all but impossible, but there is precedent for amending amendments - consider that the Eighteenth Amendment established Prohibition as part of the supreme law of the land (the Constitution), but the Twenty-First Amendment repealed it just 13 years later ... recognition that Prohibition might not have been a good idea after all. One of my more conservative friends recently commented on Facebook that the way to approach "gun control" would be to propose a Constitutional amendment and work through the amendment process to see if it could get enough support to be adopted. This is, of course, the right way to do it ... but in the America of 2016, where there are more guns than people, Congress has gone so far as to specifically forbid even the study of gun violence as a public health issue, and the gun lobby views any discussion in apocalyptic terms, it's not likely to get off the ground. You might as well get used to kevlar as a fashion accessory and active shooter drills as part of the education of our children.

I think it's time to recognize that it's 2016, not 1789, and call a new Constitutional Convention to update our founding document. Unfortunately, the times are such that it would probably be impossible to gather a group of well-informed, thoughtful citizens willing to calmly discuss issues of such critical importance ...

But compared to some of my other fantasies††, I think it's worth a try.

Have a good day. More thoughts tomorrow.


* Well, except for those parts about slavery that were in the original.

** Yes, yes, I know ... by voting to elect the government that exercises the power on their behalf. But that's not quite what the Tenth Amendment says, is it?

*** I wonder what he would make of Donald Trump.

† From the gun advocates' perspective, anyway.

†† Trust me, you don't want to know.


Chuck Bear said...

We need to be more restrictive in firearms. And really emphasize the establishment clause regarding religion.

eViL pOp TaRt said...

The Constitution should not be regarded as the Ten /commandments, It should be open to modification. Anyway, that's what Amendments are for. Strict constructionists can sometimes go too far. It's nice that there is a example of the 21st Amendment repealing the 18th Amendment. We might consider term limits for the Senate and House too.

Mike said...

I think it was Jefferson that said the constitution should be rewritten every generation.