What Did the Constitution Intend, and Is it Still Relevant Today?

 

What Did the Constitution Intend, and Is it Still Relevant Today?

Although I am a lawyer, not a constitutional scholar per se, I find it interesting to look at that foundational document to see how our Founding Fathers intended it to be and how its meaning has been distorted in modern times. Let’s look at our first Census (in 1790); we were under 4 million people, only 25% of which were qualified to vote. That’s a bit shy of 1/100th of our current population of around 330 million. Today we are their third most populous nation in the world (behind India and China) and have the earth’s largest economy and greatest political influence, however much it may be fading of late. Today, while fewer than 2% of the nation are actual farmers, back in 1790, 95% of Americans still worked the land. We were of no particular importance to then-modern European nations, overlooked without a second thought.

The United States of America was an experiment in a scantly known political construct: democracy… mostly a form of governance evolving from millennia of utopian philosophers seeking perfection. Thomas Jefferson was heavily influenced by such writers. Notwithstanding the anomaly of slavery (Blacks were 3/5 of a person), the intention of those Founding Fathers was to create a system of governance in which, by election, a majority of Americans could decide the direction of the nation… as long as certain fundamental rights of individuals were protected. It is this latter phrase that sub-par constitutional interpretation gets it so wrong. Those fundamental rights were based in a number of things: rejection of monarchical absolutism, religious minorities fleeing Europe, inalienable rights purportedly granted by God and an understanding that the world would change… and the Constitution needed to change with it.

For me, the basic Constitutional basics include Article I (Congress), Article II (the President) and Article III (the judiciary) plus the Bill of Rights, the first ten amendments to the Constitution passed in 1789 and in force in 1791. After the Civil War, those ten amendments were imposed on the states under the 14th Amendment. Oddly, most of the seminal Supreme Court cases even today center around these Constitutional provisions, far more than any other.

When we hear people complain about rulings they do not like, it is always some sort of interpretation that a majority vote should be able to override those inalienable fundamental rights. In recent months, it is an expressed opinion that an individual judge cannot rule against the President’s orders except as it may impact the specific litigants in the specific matter at bar. Those fundamental rights would thus often be unprotected. We are regaled with the “mandate” generated by Trump’s November victory… although almost half of the nation voted against him.

The proper mechanism for the kinds of change is a constitutional amendment. But both left- and right-leaning voters expect a mere Congressional vote, but at least a majority of the popular vote, to be enough to implement that “amendment.” In fact, as one of the earliest such basic documents, the US Constitution is the most difficult constitution to amend in the democratic world. The last amendment, the 27th ratified in 1992 – which required an intervening election before Congress could give itself a raise – was introduced 203 years earlier. The Equal Rights amendment died from its own internal expiration date.

Here’s the real process: The US Constitution can be amended through two methods: by a two-thirds vote in both houses of Congress to propose an amendment, or by a two-thirds vote of the state legislatures requesting Congress to call a national convention to propose amendments. The amendment must then be ratified by three-fourths of the states, either through their legislatures or by conventions held in those states. With the red-blue divide, the Constitution has become unamendable. And with a massive population increasingly set in its ways, there is a real question as to whether the United States has just become too large to govern.

The complexity has been compounded by major jurists, like the late Supreme Court Associate Justice Antonin Scalia, who declared in a 2013 speech (at SMU) that the Constitution was “dead, dead, dead” and voted accordingly. It seems logical that our Found Fathers wanted a guiding document flexible enough to endure through the ages and adapt to obvious change. But Scalia propounded a mandatory judicial methodology – “originalism” – that required judges apply constitutional logic to look only to the historical context existing at the time the constitutional provision was passed. Huh? So, Second Amendment “right to bear arms” provisions have to be read from the small arms reality of 1789, the era of muskets and flintlocks. Since AR-15s did not exist then, the lack of gun restrictions in 1789 had to be applied to guns in 2008 (Scalia’s infamous majority opinion in Heller vs DC). We cannot live like this. The Constitution needs to be resuscitated as a meaningful guide for us all.

Do a vast pool of Americans really believe that different kinds and ethnic people cannot live together without giving one ethnic or racial group overriding power? Do other Americans believe that “equality” has outlived its usefulness… or that certain Americans can be excluded from so many average and normal activities based on personal descriptions they cannot change? But if we want the emotionally scrubbed DEI moniker to float out there stripping rights and make-goods for such interpersonal wrongs, perhaps we need to replace “DEI” with the words “diversity, equality and inclusion.” “Me” not “you.” “My culture” not yours. But many Americans have so dug their heels into selfish visions, most quite incompatible with the New Testament values so many espouse, and other goody-two-shoes Americans equally believe theirs is the only path to proper governance.

And while it is true that Mother Nature will apply her laws of physics to climate change no matter what temporary Earthlings may wish, she is equally blitheful about her other scientific realities however unpopular they might be. The fact that certain toxic popular views can actually kill nearby human beings who know better… well that’s life. Perhaps the United States is indeed too big to govern under that traditional form of governance envisioned by our Forefathers… and maybe, just maybe, that experiment in democracy no longer works for our massive population. Mother Nature is beyond indifferent. We are one of the oldest, if not the oldest, continuous democracy on earth.

I’m Peter Dekom, and apparently not enough Americans care to preserve democracy… because every day, we drift farther and father away from that paradigm without caring enough to try can right the course.