August 04, 2003

The Need for a New Constitution

The purpose of the Constitution is given in the Declaration of Independence:

That whenever any Form of Government becomes destructive of these ends [protection of natural rights], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

As this post from Zenpundit points out, there is a significant proportion of the American population that no longer believes in the Constitution, and this comes from both the Left and the Right. Jesse Jackson, Jr. illustrates one pole, while those Republicans who would happily amend the Constitution to prohibit gay marriage or flag burning, or to make Christianity the official religion of the US, illustrate the other. Even the Supreme Court is getting in on the rewriting, with decisions like Grutter, which held that it's OK to violate the equal protection clause of the Constitution, but only for a while. (One wonders if, at the end of Justice O'Connor's posited time period, if the underlying goal of the university's discrimination has not been achieved, would the Justice then support extending the deadline yet further?)

I really like our Constitution as is, but I suspect that I am in the minority. The reality is, we have not actually been following large portions of the Constitution since the 1930's. The Federal government has been increasingly becoming intrusive on private Liberties, and the States have increasingly been becoming puppets of Federal laws and regulations. (Hence, a State may pass a medical marijuana law, but not prevent the enforcement of Federal regulations banning the use of marijuana.) The combination of redistribution of income (both to individuals via various welfare programs, and to States using mechanisms such as highway funding) and the removal of limits to Federal power (via doctrines such as "interstate commerce refers to anything that happens that might effect the economy" and "the government has a compelling interest to do anything it says it has a compelling interest to do" and "a limited time means any time which is not actually infinite, up to and including 3 billion years" and so on and so on).

It is clear to me that, no matter how much I hate the idea, it is time for the States to invoke their authority under Article V and call a Convention for the purpose of rewriting the Constitution. It is far better for us to have a mediocre Constitution that we actually follow, than an excellent Constitution which we ignore at our leisure.

UPDATE (8/5): ZenPundit comments.

Also, Chris Noble disagrees. I suspect that Chris and I see the Constitution in very similar terms. I, too, believe that we should live up to the Constitution's ideals. I'm not certain that a reconstitution would not live up to those ideals. (OK, if that doesn't mark me as an optimist, nothing will.)

I guess my real hope is that we will rediscover, after arguing through the issues, that we really want to be closer to the spirit of the original Constitution than to today's interpretations (many of which have been arrived at either by narrow agreement, or even over the heads of the people as a whole). I think that this could be achieved, if the standard was set that any Constitution had to pass a 2/3 vote to be reported out of Convention, as well as the requirement to be accepted by the States, presumably via referenda. (I don't think it would be politically possible for most States to address the issue just in their legislatures.)

Even if we ended up rejecting the new Constitution, and staying with the current one, the debate would add immensely to our public life. If we did get a new Constitution, it would almost certainly not contain any truly contentious statements, as these would get washed out between the supermajority requirements in the Convention and the ratification process. Those issues would be thrown back into political play, with the new balance of power (presumably more explicitly tilted towards central government) significantly changing the debate. Again, this would be good for our public life.

Posted by Jeff at August 4, 2003 10:06 AM | Link Cosmos
Comments

I have a button which says "The Constitution of the United States isn't perfect, but it's a damn sight better than what we have now."

Can the states pass an amendment repealing all existing federal laws and making congress start over from scratch?

Posted by: Karl Gallagher on August 4, 2003 12:42 PM

The States can pass an amendment that does whatever they damn well please. If the States want to invalidate all laws passed before the date of ratification of such an amendment, they have the power to do that. I'm not saying that would necessarily be wise.

I would like to say that I would much prefer simply having the courts and legislature actually uphold the Constitution we have now. I just don't see it happening any time soon, so I'd like to know what the rules actually are. I'd hate to get caught in something just because the Constitution is open to meaning whatever the courts say it means.

Posted by: Jeff on August 4, 2003 01:27 PM

Santorum's assertion is correct, as little as a lot of people would like to admit it. The marital contract evolved specifically for the protection of vulnerable women and dependent children. If it were otherwise, why would so many couples be choosing to live together without benefit of clergy today?

Contrary to the preferences of the frivolous and the self-absorbed, marriage is not a mere declaration of love, nor is it a great excuse to have a really big party.

Posted by: Francis W. Porretto on August 4, 2003 04:56 PM

I don't dispute Santorum's take on marriage; his view is up to him, and I might even agree with it. (I haven't thought it through, since I know why I got married, and I don't see the need to judge others on why they might.)

My problem is the attempt to enshrine Santorum's take into the basic statement of the form of government of the nation. There are no amendments standing which remove natural rights. The one attempt, prohibition of alcohol, was repealed. It is wrong, under our theory of government, for the Constitution to act as a means of removing individual natural rights. When it starts to do so - or when large numbers of people are pushing for it to do so - it indicates that our fundamental desires of government have changed. We should make that changed desire explicit.

Posted by: Jeff on August 4, 2003 06:03 PM

I agree.
With whom, I'm not sure, as I agree with a little bit of what different people said.
I like the Constitution, yes. I think federal power is intruding on the individual natural rights, too, yes.
I don't like the way "interstate commerce" has been used, nor do I like the way the judicial branch has been used to institute reforms that couldn't be brought about any other way.
But I don't see a problem with amendments to the Constitution, and I don't see how you can, either.
The amendment process is part of the Constitution, and it is so difficult to get anything done that way that it has only been used 27 times in more than 200 years. It was only in obvious error once: the Prohibition, and that was corrected by another.
Are you seriously saying that having given women the right to vote through an amendment invalidates the Constitution?
But I certainly hate the idea of "penumbras" and "discovered rights". If it's so clearly necessary, so clearly a compelling state interest, then it should be possible to get enough support for a Constitutinaly Amendment. If not, tough beans.
A new constitution could not be written today, in the polarized, divisive, and combative environment we have. Democrats would not allow anything that did not include the unfettered right to an abortion, and Republicans would probably not allow anything that that did not include a clear restatement of the 2nd Amendment to include concealed weapons carry. That's not even mentioning the role of religion in the nation, immigration, welfare, homosexual issues, etc.
So we would be better off if a strong judicial, executive, and legislative branch came together at the same time, with a clear mandate from the people to repair the damage inflicted on the Constitution by the federal govt. I don't think that's going to happen anytime soon.

Posted by: nathan on August 4, 2003 08:12 PM

"It is clear to me that, no matter how much I hate the idea, it is time for the States to invoke their authority under Article V and call a Convention for the purpose of rewriting the Constitution. It is far better for us to have a mediocre Constitution that we actually follow, than an excellent Constitution which we ignore at our leisure."

No, no, no! Dismiss this thought! Anathema! What we would have would be an UTTERLY REPREHENSIBLE Constitution that we would be FORCED to follow. Can you imagine if the villains on Capitol Hill right now were given a free hand to rewrite the nation's laws from scratch? The mind boggles at what horrible nightmares would result. Just look at the fiasco that is the EU constitution. Sheesh.

Bottom Line: we simply do NOT have people around right now of the same moral and intellectual character as the original framers. The harder it is for politicians and interest groups to reconcile their criminal agenda with the actual and theoretical law of the land, the better.

Posted by: Buckwheat on August 8, 2003 03:37 PM

The believe the problem with our existing constitution is that the ideal was formed without proper means of enforcement. Take the tenth amendment percieving the rights of the people. The words are powerful indeed, but the truth is that our national bodies take all power to themselves and over time the average man and woman is left unrepresented in their government. Sure we can vote for individuals, but no one really knows what is going on in their mind. It's time to change focus from a government based on people to one based on ideas. I found a site. thegreatexperiment.net whose sole purpose is to form such a constitution. For those of you looking to be apart of such change take a look perhaps you'll find what your looking for.

Posted by: Michael Stansfield on November 17, 2003 10:37 AM
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