by Berry Muhl
“Constitution” carries an immediately-understandable connotation, for just about anyone, anywhere in the world. But the definitions vary considerably from society to society. To a Briton, the Constitution is a loose collection of documents, scattered throughout time and geographical scope, outlining the operations of government. To an American, the Constitution is a specific document, drafted at a specific point in time in response to specific historical events, punctuated by a couple dozen appendices (called “Amendments”), serving to explicitly enumerate the government’s responsibilities, and thereby restrict its actions to just those mandates.
I’ve studied our own Constitution reasonably minutely over the years, and have also occasionally pored over others, such as the Constitution of the Confederate States of America. I’ve noticed that the latter, while enshrining government approval of some practices more abhorrent than any we might observe in today’s federal government, does a better job in filling in the gaps in language and concept that have permitted our own federal government to so badly abuse the former. In other words, although the CSA Constitution is not one we would in good conscience be willing to adopt today, it is, arguably, overall more efficient and effective in limiting federal power, and therefore has some lessons for us American citizens today.
And this has got me thinking over the past few years. If I were to design a model Constitution, how would I go about formalizing the requirements, filling in the gaps, and making the whole mesh together in a way that actually promoted individual sovereignty and protected individual rights? Could such a thing be done in such a way as to avoid the long-running divisions and philosophical conundrums that have accompanied the enactment of well-intentioned legislation like the Civil Rights Act of 1964, or Court decisions like Roe v. Wade? How best, in other words, to secure the blessings of tranquility and promote the general welfare for our posterity while still exerting what is essentially authoritarianism, a virtual monopoly on force, on the citizenry?
In some my recent reading—Arthur Clarke’s The Songs of Distant Earth—it is mentioned that the Constitution of the United States had undergone several revisions—not just Amendments, but complete rewrites—prior to the time of the great human diaspora that provides the novel’s backstory. Some of the human colonies established during this period of migration received what is called a Jefferson Mark Three Constitution—“utopia in two megabytes”—a designation that implies there was at least a Mark Two after the original (and even here, we might surmise a Jefferson Mark One could have been drafted at some point prior, the “Jefferson” label serving to distinguish it from the original Constitution, which was in fact drafted by James Madison). The dialogue mentions that the civilization in question was “still on Amendment Six,” implying a degree of perfection (on the original homeworld) so magnificent that it still managed to apply to a colony, consisting largely of fishing and farming villages, some fifty light years away.
It seems that Clarke, writing in 1986, had his own views on the perfection and permanence of the Constitution, while still regarding it as the model whence all other (good ones) must derive. And, well, Clarke was one of those authors so astute and perceptive that he is regarded in some quarters —indeed, has been regarded for decades—as a prophet of sorts. He, too, might have some lessons to offer, despite his reticence to espouse any explicit partisan position on the issues.
My reverence for the Constitution stems largely from its intent, namely, to constrain federal government by placing explicit limits on its power and capabilities. (Bear in mind that the Founders had recently thrown a Revolution in order to wrest free of the yoke of burdensome government.) But we all know that this intent has been violated, repeatedly, throughout the history of the nation. Evidently the words on parchment are themselves not proof against abuse and encroaching authoritarianism.
Part of the problem seems to be that the Constitution lacks teeth for enforcing its restrictions. Although nowhere is this stated as an assigned power in Article III, nor anywhere else, the Courts have long been regarded as the arbiter of what is “Constitutional” with respect to government action. Jeffrey Segal and Harold Spaeth, authors of The Supreme Court and the Attitudinal Model, point out that there are three bases for SCOTUS jurisprudence: “plain meaning,” or the most literal interpretation of the language in the Constitution; “original intent,” or what the drafters actually had in mind as words were put to parchment; and “stare decisis,” or precedent, which refers not back to the Constitution itself but to prior decisions made by previous Courts. And the long-running debate on the comparative merits of these approaches is, in some ways, part and parcel of the ideological divide in the United States.
In an ongoing feat of authoritarian elitism, the Supreme Court has long assumed that its fundamental purpose is to interpret the Constitution. Again, this is not a role defined anywhere within that document, and as such is an assumed power of the Judiciary Branch. What is more explicit, and to my thinking far less controversial, is the Court’s role in interpreting law. Obviously someone has to interpret the Constitution and the law, but I submit to you, citizen, that as citizens, we are all empowered to interpret the Constitution. Let the judges and Justices, let the lawyers and interns and paralegals and flunkies interpret the law. The abstrusity of law all but requires the existence of an entire industry of experts paid to interpret and argue its details and nuances; but the Constitution isn’t so large, nor so difficult, that we can’t all become experts, at least on those areas of special interest to ourselves. Certainly the Framers had no intention of concealing any of its dicta from We the People.
In any event, the Court’s self-appointed role in maintaining Constitutionality seems to be limited to striking down laws that it sees as invalid. (I’ll continue to resort to Segal and Spaeth over the course of my career here, in order to demonstrate the flaws in this approach.) There is little the Court can do, or at least does do, to inhibit burgeoning federal growth, or to prevent any future attempts to circumvent Constitutional restrictions.
It will be my aim, over the course of the following nine posts, to bring you into greater understanding of our Constitution and its principles, by demonstrating its flaws and addressing them in a model Constitution of my own devising, and by demonstrating its strengths and showing how those have been realized in the success of our great nation.