Friday, November 08, 2013

The U.S. needs a new Constitution like a fish needs a bicycle

Recently, there was an article in The Atlantic about why the U.S. needs a new Constitution. Primarily, the concerns expressed were that the current Constitution is full of holes, promotes gridlock, and is extremely difficult to change. The problem w/ this premise is that the Constitution was designed to do precisely those things; those are not failures on the part of the Constitution, those are the things it was intended to do. 

Some people (cough, cough, everybody apparently, cough, cough) seem to have forgotten that the Constitution was set up to make change difficult. Not because change is bad or to prevent change from occurring entirely, but because the Founders feared too much government power and they wanted to make it difficult for people in power making sweeping changes that would harm the citizens.  So they built a system of checks and balances, a system that makes it difficult for one party or powerful person to come in and run roughshod over the citizens. They made it difficult to modify the Constitution so that the people in power couldn't erode the protections built into it simply by a majority vote.  This is what the Founders wanted--slow government; limited ability to do things; difficult to amend. Why? Because they saw firsthand how absolute power corrupts absolutely. And they built a system in which that cannot happen. 

Moreover, this "full of holes" nonsense is just that--nonsense.  Of course the Founders couldn't predict everything they would need to include in the Constitution.  That's the beauty of it. Laws can be changed as needed--those are much more flexible and easier to modify as social opinions, people's desires, etc. change.  The Constitution is meant to be the foundation for everything, not the entire house.  The Constitution is the backbone to everything else. 

The writer of the article states that:

The list of questions goes on, but the Constitution doesn't answer them, so judges have had to fill in the blanks. Where modern constitutions in other nations get specific, we get judicial activism. Sometimes it works, but it's not an approach without serious drawbacks. Take civil rights, which the courts have done a decent job of protecting—only after reversing earlier mistakes. And there's theoretically nothing to stop judges from flip-flopping back to their pre-Brown v. Board of Education jurisprudence.
Laws are specific--the Constitution should not be that specific.  Laws should be. Because those can change as needed.  Have we as a society always gotten it right? No, of course not. But that's not because of the Constitution--that's because of society.  And the civil rights the writer notes that the Courts have protected--those were protected on the basis of the Constitution.  Jim Crow laws, segregation laws, and anti-miscegenation laws were all the will of the people at the time.  Those who were unduly discriminated against by these laws were able to raise a challenge to them by saying, "Hey, these laws you've passed violate our Constitutional rights." And they won. Despite the will of the people and despite the fact that this was an extremely unpopular decision. Without that whole concept of equal protection in the Constitution, they would not have had anything to base their legal arguments on. 

And this notion that there's "theoretically nothing" to stop the judges from going back to pre-Brown jurisprudence is ridiculous.  There is and it's called "stare decisis."  It's one of the most important legal concepts we have--it basically means that the courts have to follow previously determined case-outcomes, barring some extraordinary change.  Given that Brown determined that separate wasn't equal and that Jim Crow laws violated people's Constitutional rights, it would be nearly impossible to find a way to permit those laws to come back into place now.  The Courts are required to follow prior decisions and when it's something as clearly stated as "this is a violation of a person's constitutional rights" the courts will have a difficult time finding a way to go back on that. 

And, assuming that the Courts were to do so, that's where the beauty of the Constitution comes in--because the legislature can say, "Hey, Court, you messed that up!" and they can amend the Constitution to override the Court. Also, the Executive Branch can say, "Eff you, Court, we're not doing that." and the Court can't do anything. So, let's say that SCOTUS said, "Every school should be segregated." The legislature could amend the Constitution to say that schools shouldn't be amended or the Executive Branch can just not make any effort to segregate schools. The legislative branch makes laws, the executive branch enforces them, and the judicial branch interprets them.  Remember that from school, kids? The judicial branch can't do squat w/o the force of the executive branch to actually act upon its decisions. So, this notion that there's nothing to prevent them from going back to pre-Brown days is silly. 

The Constitution works because of the fact that it doesn't specifically list everything in detail. It works because it prevents power from being concentrated.  It works because it makes it difficult to effectuate massive change in one easy step. It works because it is the foundation, not the entire house. And it should stay in place.  

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