Many Americans speak of the Constitution and the Bill of Rights with a mindless and sanctimonious reverence, akin to the Ark of the Covenant, waving it like the flag on the Fourth of July to support whatever cause or political point of view that happens to suit them. In my experience, these pseudo-patriots are clueless as to the text of any of the articles or amendments and are totally ignorant of any of the major Supreme Court decisions which have construed the fundamental law of the land. Some historians have suggested that these documents, along with the Declaration of Independence, form the cornerstone of an American civil religion with rituals such as reciting the Pledge of Allegiance to the Flag. [see American civil religion in Wikipedia]. American history bears witness to the imperfections of the Constitution with its amendments and the countless judicial decisions which have construed it. Let us imagine that, like the emperor Justinian, we wish to codify American law by reviewing all the events of America history that caused a constitutional crisis or gave rise to a landmark Supreme Court decision to fashion a Constitutional Code. The Constitutional Code would set forth legal principles that would prevent history from repeating itself [like the present idea of Texas seceding from the Union] or would resolve current social and economic problems that have their origins in events of the past [such as banning discrimination rooted in Jim Crow laws or guaranteeing the right to unionize based on events of the labor movement from 1869 to 1935]. To get the discussion started, I would: [1] include a specific provision for judicial review of federal and state legislation along with the standards for determining the validity of statutes [Marbury v. Madison]; [2] clarify that the Constitutional Code should be liberally and broadly construed in favor of federal legislation aimed at protecting national interests and individual civil rights even though such rights are not specifically enumerated [McColloch v Maryland; Gibbons v Ogden; Wickard v. Filburn; Ninth Amendment]; and [3] limit state legislation to traditional areas of legitimate state interests such as health, education, welfare, safety, expenditure of state tax funds, and efficiency of public administration provided that [A] state law is not pre-empted by federal law, state law does not conflict with federal law, and [C] state law does not infringe upon individual civil rights protected by the Constitutional Code. [Decisions too numerous to list, but generally all the decisions of the Progressive Era, New Deal, and Civil Rights Movement]. One might argue if it aint broke, dont fix it. The problem is that constitutional law is a body of numerous Supreme Court decisions that, unless one is a lawyer, the average citizen does not understand. For example, if a state law allegedly discriminates against a group, the court may apply a 'strict scrutiny' test or a 'rational basis' test or an 'intermediate scrutiny' test depending on the classification of the group discriminated against. Even the decisions are nebulous with very minute and subtle distinctions made between cases. To illustrate, Bowers v Hardwick [1986] upheld sodomy laws while Lawrence v Texas [2003] invalidated them. The former was decided on equal protection grounds, the latter on substantive due process grounds. The citizen with no legal training is at a loss to explain the difference. Some might argue that re-writing the Constitutional to meet 21st-century issues beyond the imagination of its framers would legitimize the usurpation of power by the federal government and the Supreme Court. The fear of monarchy under the guise of a strong central government that existed in 1787 no longer exists today, except in the paranoia of the religious right. The ''tax and spend'' clause and the ''commerce'' clause have sustained virtually every federal statute since FDR -- Social Security Act, National Labor Relations Act, Fair Labor Standards Act, Civil Rights Act of 1964, just to name a few. Big government is not only an accepted reality but a vital necessity. When a natural disaster strikes a Republican [ie, 'federal-hands-off'] state, these very states are first in line for FEMA. Social Security and Medicare, big government programs, have become sacred cows of the American civil religion. The doctrine of states' rights started to die with the Civil War and did die with the New Deal. It is simply the mantra of bigoted hypocrites who want big government when it suits their agenda and limited government most of the time to hide their dirty laundry. The federalism which grew out of the American Revolution is an unnecessary anachronism today -- something like flying the Confederate flag to proclaim to all the world ''I am a stupid and ignorant racist bigot.'' The point of re-writing the Constitution ''on historical principles'' by scholars is to avoid the mistakes of the past that led to constitutional crises or repeated adjudication to clarify and re-clarify decisions. For example, there are many decisions after Griswold v Connecticut delineating when the right of privacy [in the penumbra of the Bill of Rights] applies. The Constitutional Code might read- The people have a right to privacy not only in the marital relationship but also in any other social relationship in which there is a reasonable expectation of privacy. No law shall be enacted or enforced which infringes upon the right of privacy. I envision this Constitutional Code to be modeled after the Restatements of Law published by the American Law Institute- a statement of black letter law followed by explanatory comments to guide lawyers and judges. I know my thinking is all fantasy, but [like the drafting of the Justinian Code under Trebonius] I envision a Constitutional Code drafted and periodically updated by legal scholars free from lobbyists and interests groups or legislators. It would never happen in a democracy. The Justinian Code and Napoleonic Code were the product of absolute rulers. European Civil Law, to me, gives a sense of order and stability. Individual decisions are merely illustrative of how the statute, explained in learned treatises, might be applied. Tax law is the closest analogy. Tax lawyers first look at the Internal Revenue Code; then to the Regulations; then Revenue Rulings; and last, case law. Law need not be complicated. My starting point for researching potential litigation was the jury instructions to ascertain exactly what facts needed to be proved. Then I looked at the Restatements and treatises to get a wider overview. Research into cases law to support my theory of the case came last. Court decisions were simply ornaments on a tree of legal reasoning. And, of course, a jury does not care about case law. The winner is the lawyer who tells the more convincing story. Rhetoric is more useful in a jury trial than law. I believe that if laws were written in plain English, most common law cases could be tried by litigants themselves. The average citizen does not understand the archaic language of the Constitution or the history behind its provisions, much less the abstruse reasoning in Supreme Court decisions. Hence, we often hear ''Where in the Constitution does it say...[a right of privacy, a right to travel, etc]'' The uneducated might think he has a right to free speech but gets fired because he does not understand that First Amendment rights apply only to government actions, not to private employer actions. In the democracy we purport to be, the fundamental law should be understandable to every high school graduate of ordinary intelligence. Our Constitution was written by the wealthy, educated elite to address their concerns in 1787.
Thinking about politics is kind of like "imagining" a piece of music. It does no one else any good. In politics we have to land the plane. Like, in this case, if we wanted to "rewrite the Constitution" we'd start simple, with an Amendment maybe. So, that's the first heads up. An Amendment is a big deal. It requires the agreement of 2/3 of the Congress and 3/4 of the States. In today's partisan atmosphere, that would be virtually impossible. If you wanted to toss the entire Constitution up the air all at once your only choice would be an Article V convention, which we were discussing in the other thread. The prevailing view on that is, "Congress would never allow one". Because it gives the lawmaking power back to the States, and they won't do that. What would have to happen is, 38 states would have to petition, and then they'd have to sue the federal government, and I really really don't think we want the present set of Supreme Morons deciding the issue.
You are right. The Declaration of Independence and the Constitution are the Holy Scriptures of the American civil religion. Thank you for your post.
Well, I guess they are, in a way. They're kind of like the Bible, it's what they show to kiddies to instill 'em with a little morality and keep 'em on the straight and narrow while they're growing up, and... some people continue to believe the fables, whereas others actually study history, and others still have a faith that transcends even the written word. We pay lip service to the Constitution, the bulk of our law is actually the US Code, and at any given moment the two may or may not align.
I suppose that an annotated version of the Constitution as well as the 500+ volumes of US Reports accomplish the same goal --- for lawyers. To ''dumb down'' constitutional law for the average Joe Six-Pack would serve no useful purpose. The histrionic reactions to Obergefell v Hodges are a testament to rife stupidity in the United States. I should accept that I am one of those liberal elitists who prefers wine to beer.
None of your three points are really any different than we have now. Maybe in point 3 the state legislature thing is a little different but your part C to that question basically makes the state legislature thing irrelevant. How well do you actually know the Constitution?
I agree -- except that these points are scattered throughout numerous, hair-splitting court decisions understandable only to lawyers. Having been a lawyer for 30 years, I probably know the Constitution and judicial decisions interpreting it better than most people.
First of all, the Constitution is written in plain English. If it's not understandable to an average high school graduate then I have to question their literacy and reading comprehension skills. As for the concerns that the Framers addressed in the COTUS, the concerns they addressed existed before 1787 and many of them remain concerns to this day. Furthermore, those concerns were and are not merely the concerns of the wealthy educated elite. All that being said, I share you concern about the clarity of the language in our laws, but as Antonin Scalia recently pointed out, the language in our laws no longer means anything. Let's face it, the rule of written law in this country died some time ago. Sometimes I wonder what is the point in paying legislators, executives and judges extravagant salaries to write, enforce and interpret the language in laws when the language in our laws no longer means anything. If what Scalia says is true, and the facts indicate that they are, then those legislators, executives and judges have rendered themselves obsolete. Our Experiment is over. The Constitution isn't the problem in this country. The rule of arbitrary fiat is the problem.
All right then.... This would do no good whatsoever. The SCOTUS itself is highly corrupt, it's become politicized, and that politicization extends throughout the judicial branch. Are you kidding? Money is speech? Buildings are people? Penalties are taxes? Gimme a break! Any rights not specifically assigned to the federal government are left to the States and the People. This is already the law. The issue is not that "the law doesn't exist", the issue is that the highest law in the land is being ignored! It's being ignored, and it's being internally contradicted by stupid decisions issue by SCOTUS. Just enforce the damn law, how hard is that? We have a law that says illegal aliens are supposed to be deported, but FedGov is too busy running around suing the States for enforcing the law that FedGov refuses to enforce. The law in this country is entirely corrupt, both in theory and in practice. And I'll tell you another thing - the minute the government obeys its own laws, then so will I.
I have to agree that appointment to SCOTUS is based on the candidate's political views rather than reputation as a jurist or scholar. And, indeed, we have a proliferation of laws passed on an ad hoc basis in a knee-jerk response to some event causing overlapping and/or conflicting legislation [eg, marijuana laws]. Of course, our society is changing more rapidly, and we need laws to keep up with those changes.
Well then, we're back to your original point, aren't we? I agree that we should keep our Constitution up to date. I'm just not sure "how to do it". First, there seems to be little interest in doing any such thing. Our politicians seem to be more inclined to simply state that it's a "living, breathing" document, which gives them license to basically ignore it (or morph it into whatever imaginary thing they're conceiving of, which is the same thing). Second, the mechanics of an Amendment are frightening, and Congress is already on record multiple times as squashing any attempt at a Convention. In fact, the behavior to date has been, that when Congress is backed into a corner and "just before" they get the 38th state on board, it will "pre-emptively" come up with an Amendment, with "its" wording instead of ours. My own view is that FedGov has completely abused its powers beginning with the Civil War and the Reconstruction, and it's been mostly downhill since then. At this point they're claiming powers they simply don't have, and I'm not sure the Constitution is doing any good whatsoever in terms of keeping them reined in. And third, in a good world, the United States Constitution and its Amendments are used as a check and balance against a willful SCOTUS. Judges are constrained by the words in the Constitution (or at least they're supposed to be - that's probably why they're changing the meanings of the words at this point). If some Supreme Moron says "money is speech", the Congress can create an Amendment that says "money is not speech", and after that there's not a damn thing any Supreme Idiot can do about it.
Your post goes back to the intent of my OP -- IF you could re-write the Constitution, what provisions would you include? You apparently would omit Article III, or at least prohibit judicial review of legislation. You would omit the Necessary and Proper Clause of Article I as well as the Ninth Amendment. You would include language to clarify strict limitation on federal powers to legislate and to broaden states' rights. We would essentially be back to the Articles of Confederation, if I understand you correctly.
No, I like the original design. The system of checks and balances would work pretty well IF it was respected. But it's not, it's morphed into something entirely different, and what that really means is the system of checks and balances has been destroyed. That's why we have Congress passing ex-post-facto laws and bills of attainder, and the President signing those laws, and the Justices either approving them or refusing to hear the cases. I like the original design. I like the idea of a "federation", I don't like the idea of a single point of failure or a single point of corruption.
I would have to check, but I do not recall any ''ex post facto'' law or ''bill of attainder'' cases. These kinds of cases rarely come up [albeit I never practiced criminal law]. What ex-post-facto law or bill-of-attainder has Congress recently passed?
Well, the bill of attainder would be the Charlie Rangel case. The ex-post-facto laws are legion, you can look at some of the "rakeback" or "clawback" legislation as an example.
I have no problem understanding them although I have had my share of constitutional law classes so I suppose that isn't fair. Are you saying we should be changing those three items you listed? Maybe I misunderstood you.
