U.S.A -- Making do with an old Constitution

Is __________________ (fill in the blank) constitutional or unconstitutional?  Here in the United States we seem to ask that question often.

If you were asked to render an opinion on the constitutionality of a law or an action--in other words, deciding if something is constitutional or unconstitutional--how would you go about doing that?  For example, might you read the text of the Constitution, looking for a reference to the matter under consideration, and then make your decision based on the wording that is found, with the feeling that if no such reference exists in the Constitution then the presumed law or action might well be unconstitutional?

With that approach, you would have to read all the way through the main body of the Constitution, and continue reading past the first twelve Amendments, to arrive at the conclusion that slavery is unconstitutional.  If you were to stop reading at the end of the Constitution--as originally written--you would have to conclude that slavery was perfectly legal in this country, which was the original intent of the framers of the Constitution.

You might read that far and then beyond, all the way to the last Amendment--#27, or Amendment XXVII, adopted in 1992--and reasonably conclude that the Air Force is unconstitutional, since it is nowhere described within the Constitution or those Amendments, even though the Army and the Navy are specifically mentioned.

In a few months--on September 17--the Constitution of the United States of America will be two hundred twenty seven years old.  The world, and the nation, are a whole lot different now than they were when the Constitution was written in the 1780s.  Nothing lasts forever.

It's time to start thinking about writing a new Constitution.

Pre-Constitution:  Articles of Confederation

Most people will read that last statement and react with a hearty response of something along the lines of "That's the craziest idea I've heard in a long time!"  Well, maybe so, but not because it cannot, or should not, be done.  It can be done--people are just as able to write laws today as they were in the 18th century (maybe more so).  It should be done--our Constitution is creaking under the weight of more than two centuries of change. 

We've done it before.  The United States did not start with the Constitution that we have now.  Instead, the nation was born with a different supreme governing law of the land; it was called the Articles of Confederation.  Those Articles acted as a national constitution for the duration of the Revolution and the subsequent time of peace during the early to mid-1780s.

The Articles of Confederation never worked very well.  The national government was small, dysfunctional and weak.  It was just barely able to establish working relations with the governments of other nations, it depended for its success on the voluntary cooperation of the thirteen individual state governments, and it had little ability to raise national revenues.  As a result, it took years longer than should have been needed to convince European governments of the sincerity and eventual success of the American Revolution, and the Continental Army--and embryonic Navy--were constantly underfunded.  In fact, by the time that the Revolution was successfully concluded with the Treaty of Paris, there was so little that the national government was able to do for the individual states that a common thought in Great Britain was that those states, within a few years, would start drifting back to the Mother Country, seeking the protection and stability of Crown and Parliament.

A national government that was given a fighting chance

The world of the mid-1780s looked a whole lot different from the world of the early and mid-1770s.  Those differences are what motivated the leading American citizens of the time to write a new constitution for the country.  They dropped the reference to a loosely-organized confederation of states by naming the document the Constitution of the United States.  That was a clear statement of legal principle and national intent that was meant to cure one of the major ailments of the time:  the states were to be firmly bound together, with no drifting back towards Great Britain.

So, we already know that we can write a new governing law for the land and use it to replace an old one that has become out-of-date.  Why should it be done now?  And, even if there are good reasons to write a new constitution, is there another, less disruptive solution that could work just as well?

Our constitution includes some really old and odd ideas

There are good reasons to write a new constitution.  As it stands now our constitution has content that was relevant in the 18th century, but no longer has any meaning in the 21st century.  For example, did you know that it gives Congress the authority to issue letters of marque?  Most people today don't have the faintest idea of what a letter of marque is, or what it means.  (I'm going to guess that most Members of Congress have no idea what a letter of marque is, or even that they have the authority to issue one.)  A letter of marque is a governmental authorization given to a private shipowner to arm that ship--at the owner's expense--and then sail the high seas with the goal of capturing, and then selling for profit, the shipping of another country.  Basically, this was legalized piracy.

This practice did not originate in America; it probably started with the British monarchy during the mid-1300s.  French was the language commonly spoken by British royalty and nobility at that time, hence the Gallic appearance of the terminology.  Sir Francis Drake was probably the most famous holder of a letter of marque, which was granted to him by Queen Elizabeth I.

Issuing letters of marque might have made some sense for the United States when the country had an insignificant Navy, but it makes no sense at all at a time when the U.S. Navy wields more firepower than all of the other navies of the world combined.  Nor is it a sensible tool to hold when the nations of the world are united in condemning and combating piracy in all its forms.

Another example:  the Constitution retains its original wording regarding the difference between "free persons" and "all other Persons."  It also still has the statement that Senators are to be chosen by the state legislatures.  Both of these, of course, have been corrected and superseded by Amendments, but the original wording remains.

There are flaws of omission, too.  The Constitution, even with the addition of the Bill of Rights of the first ten Amendments, is weak on provisions for the protection of personal privacy, whether from intrusion by law enforcement and our own government, by other individuals, or by businesses and organizations of any size and type.  Regarding impeachment, the Constitution fails to define what could be a reason for impeachment, other than to describe it as "treason, bribery, or other high crimes and misdemeanors."  Treason and bribery are probably fairly straight-forward, but the rest is vague at best, and a springboard for political cupidity at worst.

It's a different world now

The constitution that we are living with was written when the United States was a primarily rural, agricultural nation of less than four million total population.  Today, the U.S. is populated by over 318 million people who live mostly in metropolitan areas--each of which is composed of millions of residents whose occupation is anything but an agricultural endeavor.  It's probably obvious to most that the United States of the 1780s had no Internet and television, but here are other things that it did not have:  paved roads, railroads, pipelines, massive coal mines, No. 2 pencils, oil wells, electricity, steamships, guns that could shoot more than once without reloading, bicycles, tennis balls and racquets, barbed wire, telegraph lines, ballpoint pens, police forces,  observable theory of evolution, pharmaceuticals, telephones, quantum mechanics, space travel, airplanes, hospital emergency rooms, public education, black holes (they were around, of course, but we didn't know about them), medical records, stop signs on the roads, canals with barges, mega-huge corporations, a stock market. . .the list could go on and on.  Some things arrived after the Constitution was written, changed the world, and then became obsolete by something else that arrived later and changed the world again.

There are plenty of good reasons to create a new constitution, but it's not likely to happen any time soon.  The inertia of human apathy, and the current political disagreements over the responsibilities of a national government, probably prohibit any meaningful attempt at achieving something that can be expected to last for another one or two hundred years.

So, instead we content ourselves with a judicial system that is expected to render Olympian judgments on matters of constitutionality that are increasingly distant from the realities of the day when the Constitution of the United States was written.  From the standpoint of liberal progressives such as myself, that's not such a bad thing, as long as the judiciary making those decisions is largely composed of people who believe that which seems to be obvious for the long-term viability of the nation:  the U.S. Constitution must be increasingly interpreted to accommodate contemporary realities, rather than judging by trying to make contemporary realities fit into the more than two century old box of original intent.

As time goes by, it becomes more and more important to ask the questions "Why do we care about the original intent of the framers of the Constitution?  How should the original intent be updated to take into account today's lifestyle and social contexts, instead of the contexts of the late 18th century?"

Maybe it can be interpreted in endless ways

As each year goes by, it becomes more and more absurd to try to make constitutional judgments that are substantiated by the idea of original intent, simply because we change and our world changes.  This makes life harder for the political and judicial conservatives in the country, because they put themselves in the position of defending something that is less relevant to a modern society.  "Less relevant" doesn't mean irrelevant, it just means that there are more and more chinks in the armor plating of original intent.

Fortunately for America, the ambiguities inherent in the Constitution, along with the general acceptance of the practice of judicial interpretation, have combined to enable gradual legal adaptations over time so that the Constitution is still effective, even if it isn't perfect.

But, in the absence of a new and more current constitution, we are going to have to prepare ourselves for an increasing tug-of-war over the how far the nation's laws should stray from the original intent of the Constitution.  Times change and people change, and laws of the time will have to change to keep abreast of the needs of the people.  Consider this:  the U.S. Constitution was written from a predominantly Anglo-Saxon perspective by a predominantly Anglo-Saxon population; by mid-century, the United States will no longer have a predominantly Anglo-Saxon population.  In some ways, even now the population is no longer predominantly Anglo-Saxon.  As for perspective, that which reflects an Anglo-Saxon type of outlook will continue to be hugely influential for the foreseeable future, but other types of outlook are emerging (and have emerged) and will expect to be adopted into the legal system, too.

There's a much-quoted, but largely under-appreciated, part of the Constitution that provides the best indication of anticipation on the part of the members of the Constitutional Convention that their final production would, in fact, be liberally interpreted over time.  It's the Preamble, which sets huge national goals for things that naturally have evolving definitions:  justice, domestic tranquility, defense, welfare, and blessings of liberty.  Everything else that comes after the Preamble builds the apparatus that we use to achieve these goals. 

This is a design for a powerful national government.  A limited and shackled national government cannot accomplish nor can it maintain these things.  I say this with all due respect to today's limited-government denizens of the tea party cliques.  American government is far from perfect, but a small and wimpy government cannot accomplish the lofty goals of the Preamble to the Constitution.  We already know that because we tried such a government first, and it failed.

A new American Constitution, properly crafted, would serve the country better than an old one that has had to be amended for improvement, and which is based in human experiences that are more than two centuries in the past.  Can we muddle along with what we already have without replacing it?  Probably, but that means continually charting and re-charting a course between original intent and contemporary interpretation, and that will be a ride that's likely to be something similar to charting a course between two black holes.