Parry writes: "The U.S. Constitution has become part of today's political battlefield, with the Right claiming to be its true defender and the Left questioning why the old parchment should undercut democratic choices in the modern age."
Illustration, the signing of the US Constitution. (photo: GenealogyOfConsent.WordPress.com)
Is the Constitution Still Relevant?
06 January 13
here are two major schools of thought about the U.S. Constitution. One from the Left argues that it's an outdated structure that should not be allowed to inhibit actions necessary to meet the needs of a modern society. And one from the Right, that only a "strict constructionist" reading of the Constitution and respect for the Framers' "original intent" should be allowed.
But the problem with these two views is that neither is logically consistent or honest. The Left, for instance, embraces important constitutional liberties, such as habeas corpus, freedom of speech, and prohibitions against "cruel and unusual punishments" and unreasonable searches and seizures -- regardless of the exigencies of the moment.
Yet, the Left disdains much of the Constitution for its anti-democratic and even immoral compromises, which enabled the new governing document to emerge from the Constitutional Convention in 1787 and narrowly win ratification in 1788. Not only did the Constitution countenance slavery, it undercut democracy by giving two senators to each state regardless of population (and originally having them appointed by state legislatures, not elected by the people).
Why, ask many on the Left, should modern American society be restricted by the judgments of a small group of propertied white men -- many of them slaveholders -- who died two centuries ago? Why should old compromises, which now seem ridiculously quaint and wrongheaded, be allowed to distort and constrain democratic judgments in 2013?
As Georgetown University constitutional law professor Louis Michael Seidman wrote in a recent New York Times op-ed, much of the fault behind today's gridlock in Washington can be traced to the "archaic, idiosyncratic and downright evil provisions" of the U.S. Constitution. He added:
"Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago."
The Right's Distortions
While the Left tends to view the Constitution as an irretrievably flawed document (albeit with individual liberties that the Left loves), the Right has made political hay by presenting itself as the Constitution's true defenders. The Right argues for what it calls "strict construction" and "original intent."
Yet, even right-wing Supreme Court justices who wax eloquently about "originalism" will twist the Framers' words and intentions when ideologically convenient, such as when Antonin Scalia inserted restrictions in the Commerce Clause -- during his opposition to the Affordable Care Act -- although James Madison and the Framers left the congressional power to regulate interstate and national commerce unlimited.
Indeed, from a strict reading of the Constitution, Madison had a much more robust respect for the democratic decisions of the elected branches of government than does today's Right.
In oral arguments on "Obamacare" in 2012, Scalia fretted about the possibility that Congress might use the Commerce Clause to mandate compulsory broccoli purchases, but Madison seemed to understand that if Congress and the President were nutty enough to do something like that, the voters would have the commonsense to un-elect those representatives at the next opportunity.
However, rather than trusting in Madison's language giving Congress the unlimited power to regulate commerce, Scalia insisted on second-guessing the Framers by applying his own judgments about what limitations should be in the Commerce Clause.
Scalia's Constitutional re-write was accepted by his fellow right-wingers, including Chief Justice John Roberts, although -- at the last minute -- Roberts joined with four Democratic justices to deem the Affordable Care Act constitutional under the taxing power of Congress. Still, Roberts rejected the Commerce Clause as justification after he arbitrarily eliminated some 18th Century definitions of the word "regulate."
In other words, Scalia and Roberts played games with the Constitution to make it fit with their political biases. They really didn't give a hoot about "strict construction." [For details, see Robert Parry's America's Stolen Narrative.]
Similarly, when Scalia and four other Republican justices wanted George W. Bush in the White House, they suddenly discerned in the Fourteenth Amendment's demand for "equal protection under the law" an "original intent" to ensure Bush's Florida victory in Election 2000 -- though the amendment was adopted after the Civil War to protect the rights of former black slaves, not white plutocrats.
Thus, the U.S. Constitution has become something like a secular Bible, with people using different parts to justify whatever their desired positions already are. Instead of letting the words of the Constitution guide their governance, they let their governing interests dictate how they interpret the Constitution.
But the Right -- much more than the Left -- has built a cottage industry around this practice, sending well-funded "scholars" back in time to cherry-pick (or fabricate) quotes from the Framers to support whatever the Right wants done. The Right’s commitment to “strict construction” is only a facade.
Changing Reality
That the modern American Right twists historical reality, I suppose, should not come as a shock. After all, today's Right has organized itself around propaganda regarding current events, from talk radio to Fox News to ideological think tanks. So, why should anyone expect anything different about how the Right would deal with history?
The Right also understands that national mythology is a powerful force, very effective in manipulating Americans into believing they are standing with the Founders even if the history has to be falsified to achieve that emotional response. Many Tea Partiers, it seems, will eagerly eat up a stew of bad history served by the likes of Glenn Beck.
Thus, we have key chapters of that early history effectively expunged, such as the disastrous reign of the Articles of Confederation from 1777 to 1787. The Articles declared the 13 states "sovereign" and "independent" with the central government just a "league of friendship" with little power.
Because of that original structure, the United States was lurching toward catastrophe by 1787, with a major revolt erupting in western Massachusetts (the Shays' Rebellion) and European powers plotting how to exploit divisions between the states and regions. General George Washington, in particular, worried that the hard-won independence of the new country was in jeopardy.
So, to understand what Washington, Madison and other key Framers were trying to do with the Constitution, you must first read the Articles of Confederation, i.e., what prompted the Constitutional Convention in Philadelphia in 1787. Washington and Madison were so determined to correct the flaws of the Articles that they defied their instructions, which were to propose some changes to the Articles. Instead, they threw out the old system.
The Framers replaced the Articles and the emphasis on states' rights and a weak central government with nearly the opposite, a structure that made the federal government much more powerful and its law supreme across the land. Sovereignty was transferred to "We the People" and the states were left mostly with responsibility for local matters.
At the time, opponents of the Constitution, known as the Anti-Federalists, were keenly aware of what Washington and Madison had engineered, and these skeptics fought fiercely against the federal power grab, just barely losing in several key states, such as Virginia, New York and Massachusetts.
A Revised Narrative
Yet, by recreating the Founding Narrative so it jumps from the Declaration of Independence in 1776 directly to the U.S. Constitution in 1787, the modern Right has learned that it can convince ill-informed Americans that the Constitution was devised as a states' rights document with a weak central government, when nearly the opposite was the case.
The key to the Right's false narrative is to delete (or ignore) the Articles of Confederation and thus eliminate what Washington and Madison were reacting against.
So, what the American people are now stuck with is a debate in which one side (the Left) largely dismisses the relevance of the Constitution (beyond some cherished individual rights) and the other (the Right) lies about what the document was designed to do. Thus, the nation finds itself in something between a muddle and a quandary.
The best path to firmer ground would seem to be, twofold: a serious effort to reclaim the real history of the Constitution from the charlatans on the Right and a recognition that the Constitution, as amended, creates an imperfect but still workable framework for democratic change, a rebuff to some on the Left.
The reality is that the Framers did include broad and flexible powers in the Constitution, so future elected representatives could work their will on matters important to the "general Welfare." As already noted, the Commerce Clause was not limited by the Framers; it was restricted by the current majority of right-wing ideologues who sit on the U.S. Supreme Court.
And as for the Left, it should recognize that -- with some political changes, such as the expanded use of primaries and caucuses to select Democratic and Republican candidates, filibuster reform and some more public financing of campaigns -- the Constitution allows for a reasonably vibrant, though clearly imperfect, democratic process.
Today's political crisis can more accurately be blamed on the Right's well-funded propaganda machine which has succeeded in supplanting history and science with propaganda and disinformation -- and the failure of the Left and the Center to fight as hard for the truth as the Right fights for its fallacies.
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Republic means govt of the people as in owned by the people and not owned by say an elite class such as a monarchy, rich, corporations, etc. Fascism is not govt owned means of production in of itself.
Fascism employs the country over all other countries. It is typically controlled by an elite class, ie merchant class. National Socialism is an offshoot of fascism in that it does the same thing perse but employs a nation of people over all others. Nation is not the same as a country but nation as in one particular ethnic group. Ethnic Germans for example are on top of the food chain. All others are sub citizens with no rights or lesser rights who serve the prima. In fascism that particular country would be the citizens with the rights regardless of ethnicity of those within the country and all other countries would be sub-citizens meant to be used to fulfill the needs of the first citizen or prima.
"
Howard Zinn, The Nation 1987:
"The proper question, I believe, is not how good a documentis or was the Constitution but, What effect does it have on the quality of our lives? And the answer to that, it seems to me, is, Very little. The Constitution makes promises it cannot by itself keep, and therefore deludes us into complacency about the rights we have. It is conspicuously silent on certain other rights that all human beings deserve. And it pretends to set limits on governmental powers, when in fact those limits are easily ignored"
The Constitution is only a framework around which we the people may construct the government. In some areas it is quite plain and clear, curiously, those areas are generally reserved to describe the particular branches of government and the process by which those branches are selected. As the provisions move into areas of actual legislation the restrictions and powers are less clear. One cannot help but think that it was intentional and even when it details the crime of treason; a lot is room for interpretation is clearly there.
The weaknesses that Zinn calls out were in fact intentional. Done, I am sure due to political expedience as much as genius. He is right that it has little to do with our every day life, and intentional or not that is its magic power. The Constitution has little effect on our daily life, that is left to the 3 branches. The Constitution is just their road map, subject to change; it is not a bible.
And the Founders clearly intended us to debate what each provision means and to change them as necessary. I know because that is exactly what they did.
I don't see that quote from Zinn as disdain for the Constitution.
I think Zinn is talking about how easy it is, today, for our rights to be trampled on by a modern government that cares not a bit about "We the People".
CITE
I would agree that for the most part "the left" doesn't "disdain the constitution" but there are certainly left critiques: from Charles Beard's "Economic Interpretation of the Constitution of the US" to Robert Mcquire's more recent "To Form A More Perfect Union" which recognize that the Constitution is in many ways a document meant to secure the property rights and economic privilege of the ruling elite. Then there are those (more in the libertarian/ana rchist "camp") who understand the Constitution as the "counterrevolut ion" meant to slow down or stop the spread of "too much" democracy and give the Federal Gov't the powers to respond to mass uprisings from below (such as Shay's Rebellion in 1786-87 itself just the lastest in more than 100 years of rebellions from below) which helped convince some of the Founders that the Articles of Confederation were not sufficient to control these rebellions from below -- including slave rebellions and native american resistance (see e.g., "Shays's Rebellion: The American Revolution's Final Battle" by Leonard Richards or "Shay's Rebellion" by David Szatmary). And, of course, there are those (e.g., George Van Cleve's "A Slaveholder's Union) that understand the Constitution as being a document intimiately related to the maintenance and spread of slavery and the power of the slave states.
There were significant omissions. Slavery would not be banned for almost another 80 years. And a "strict" reading of the original wording led to the denial of basic civil rights to women for 130 years. These have been attended to through the amendment process, which will continue.
The Constitution was and is an outline for a nation. What we erect, tear down, improve, and so on around that outline is up to each generation of Americans. It was designed that way.
Thomas Jefferson did not write the Constitution, but put it well:
"I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."
I usually stop reading after a few because it is too depressing to see how many Americans are either so biased or so uneducated. You have written one of the best responses I've ever read on these boards. Thanks.
Jefferson's initial response to the proposed "presidency" was that it would eventually turn to despotism.
Still a very great man, but just a man.
For more about his paradoxes, check out http://www.earlyamerica.com/review/2002_summer_fall/tj_views.htm
Souter was a free thinker and was on the verge of resigning after the per curiam decision in Bush v. Gore (2000)
http://catalysttounity.wordpress.com/2012/12/17/a-little-about-us/
Even if Congress passes an amendment it has to be ratified by the States. Passing an act into law is not the same thing as passing a constitutional amendment.
Example just because Congress passed the 13th Amendment abolishing slavery did not make it constitutional yet. It had to be ratified by the States hence it was rushed to get passed BEFORE the Southern states could be admitted into the Union while they had the needed States to ratify it.
So as Congress can pass gun control laws that does not amend the US Constitution in of itself such as the Bill of Rights. We can sue about its Constitutionali ty and SCOTUS can determine its constitutionali ty. In short Congress can pass statutory and regulatory law while the Courts make common law on their rulings of the former two. If we want to actually change the 2nd Amendment well that is quite different. You have to have the support of the States themselves otherwise it is pointless.
Example Suffrage for women. We did not get an amendment about women's right to vote till after a majority of the states themselves had passed state laws saying women did have the right to vote. The subsequent amendment to the bill of rights forced the states who had not passed women's voting rights to have to allow them to.
The new Republic needed an army but couldn't pay for nor was it too keen on a standing army.
It was therefore decided that every citizen could take arms in an organized, well GOVT-regulated militia should the need arise. They were even originally required to pay for their own gun.
The "militia as check on federal govt" is nonsense: one of its first deployment was against the Shays rebellion, lead by Washington himself.
There is now a standing army, thus voiding the need for a well-regulated militia.
The "Right to bear arms" means the right to enlist in the militia (i.e. the army), not the right to sport a six-shooter in a Wallmart. It was specifically to avoid the cooptation of accepted soldiers that would create a military class on the margin of the general population.
Translated in modern English, the 2nd amendment therefore means the able bodies and minded people have the right to enlist.
We are far from "thou shalst have a gun".
Great explanation. I had already come to the same interpretation, but somehow your calling out the term "Right to bear arms" really struck me as confirmation. The right is to bear arms in service of the militia, not to shoot the militia. Makes sense.
Maybe you are thinking that the central government is under the control of Israel. I'd agree with that.
Republics are about living in the now and being flexible.
I love how some want to try to emphasize socialism in Nazi as if that makes them left ideology. It does not. Fascism is OPPOSITE to socialism. The key word you miss is NATIONALISM. Corporations were all up Hitler's ass getting favors.
Police states are totalitarian not socialist or nationalist in of themselves. The Soviets called the Germans fascists while the Germans called the Soviets communists. Both were right in describing the other regardless if both were totalitarian.
Although NSDAP does mean literally national socialist (and) democratic party of the workers, this is a great example of Orwellian new-speak; just as the clean air (in your dreams) act, the healthy (non) forest act.
If you take these names at face value, then the DPRK is a republic, democratic and popular.
What we are stuck with today is opinions that are rigid as to what the FFs intended. What people do not look at or very rarely is what laws were passed THEN such as the two militia acts passed in the same week in 1792 just one year after the bill of rights was ratified. Both measures talk of the militia. The first extended Congressional powers to call upon the militia to POTUS as well as organize the militia just as any standing army would be organized. The second was to make conscription of all able bodied FREE men of age 18-45 to which they had to provide their own musket, munitions, etc.
To add to what I said earlier the Federalists passed the Sedition Act to which Jefferson opposed. Ladies and Gentlemen we would call that a Patriot Act today. When Jefferson became POTUS he reversed that act. He freed those who had been imprisoned due to it and compensated them. BUT I really wish people would stop using Jefferson as some pillar of freedom. Jefferson is liked by many historians because he emplifies American Hypocrisy. He could had freed his slaves as several of his counterparts did once the war was over but he did not. He bought and sold his slaves while trying to hide it from the public eye. He said blacks were inferior and smelled. He as well in his first term slashed the govt down to peanuts. Many look at that as ideal BUT during his second term we were unable to do anything to stop the French and British from taking our sailors and forcing them to serve in either navy. You see Jefferson had mothballed our navy and to avoid war what did he do? He forbid foreign trade which tanked our economy. He wanted Congress to create harsh measures against those who were violating this. Congress told him to suck a duck.
Now there's a perfect summation of American history from the faux "left."
Historians are hypocritians?
Quoting DevinMacGregor:
The first slave manumitted under the new (1782) Virginia law was manumitted in 1791, so the manumission business was hardly steaming.
Quoting DevinMacGregor:
Yeah, he hid them at Monticello.
Quoting DevinMacGregor:
He changed his mind.
Quoting DevinMacGregor:
Anyone who sees an American navy in 1800 could as easily see Elvis in 2013.
Quoting DevinMacGregor:
The Embargo forced Americans to manufacture things they had always bought from England, and that gave a much great boost to economic development than Hamilton's bank schemes.
And as POTUS what did he do to abolish slavery? He instead thought to allow it to move into the frontier as in all the way to the Mississippi saying this would dilute it. Adams looked at him like he was nuts such as if you let a cancer spread to the rest of the body the body dies. Several decades later 600,000 Americans died on that altar he loved to run away from. Wasn't that cool.
Yet the revisionists exist still today in talking about it was only about state rights vs the federal govt while ignoring that we have had to use force to ensure others have the same rights as the majority and even then we still failed.
A potus? Is that one of those secret societies?
He tried to inject a denunciation of the slave trade into the Declaration and in 1776 proposed to ameliorate Virginia's slave laws. Before the Revolution, he had twice represented slaves suing for freedom. In Congress in 1784, he chaired the committee on the western territories and brought in a plan to end slavery there (including Kentucky, Tennessee, Mississippi, Alabama). He lost by one vote. Three years afterward, Congress adopted the Northwest Ordinance, accepting Jefferson's framework but omitting the antislavery element. His Louisiana Purchase as president added 4 slave states but 11 free states, tilting the balance toward the latter. The constitution guaranteed the slave trade for 20 years so the first opportunity to end it came toward the end of Jefferson's presidency, and he "congratulated Congress in advance" in losing no time to end the trade.
Maybe we should rewrite the constitution to reflect the current state of affairs...
Whether we do or not, the reality will remain the same.
So did Benedict Arnold and George Custer.
Quoting DevinMacGregor:
non sequitur
Quoting DevinMacGregor:
like Washington at Brandywine and many other battles.
Quoting DevinMacGregor:
He was charged with nothing.
Quoting DevinMacGregor:
Just like Churchill at Dunkirk.
Tell that to Scalia, Thomas and their creepy cohorts of Opus Dei! And then read Juliane's book in Clifton Wolters' translation (see above quote), although you can skip Wolters' intro since--as simple and straightforward as her language always was--he didn't understand her at all.
The article is clever, but is it seaworthy? No. All focus on collective will of the people with no look at reserved rights to the individual, which is where the wind is actually blowing. Why would we want such a feckless view at the helm, steering us off course into uncharted waters? I could pick through and itemize point by point what ideas would steer this ship of State onto the rocks. And I have many other answers to questions no one ever asks as well. It is not the Constitution which has become irrelevant to our discussion, it is the mindset expressed above which lacks relevance to a meaningful debate. If you think the statement over bold, then let's cut right through the fog. Pop quiz! Please then explain to me which one of the secured rights in the Constitution can be eliminated without impairing the exercise of all others?
So with no punishment waiting in the "ether" of justice, what real reason do these men have to follow the rules? They are well insulated with our money.
But it is certainly relevant.
The rule of that law is all that has stood in the way of any number of repressive, reactionary and rapacious initiatives. When one considers how close the battle is today, one knows it would already have been lost otherwise. That we do not already live in a full security state under the facade of a Christian theocracy run entirely for the benefit of an aristocracy of capital, the direction we are going, is due to the tradition and rule of constitutional law.
But then Roman Law is still part of the curriculum in law school (at least in the UK).
- Benito Mussolini
What Constitution? Do as you're told and march in step…
The Constitution enumerates Federal powers, while reserving all remaining powers and rights to the states and the People. That enumeration addressed many of the weaknesses of the Articles, while seeking a compromise between state independence and federal power.
The problem with adjectives like "strong" or "weak" in reference to Federal power is "relative to what?" The Constitution created a Federal government much "stronger" than that of the Articles, but that was not intended to be as "strong" as the Federal government is today.
Which returns to your point about letting the Constitution be a guide for today's governance. If we understand the meaning of the words and intent of the founders in developing various sections of the Constitution, we can stabilize the perspective of governance through the normal fluctuations and politics over time.
If we don't like what the guidance, the Constitution provides a mechanism for changing that guidance.
Robert
P.S. Isn't it intriguing that the left and right both selectively favor and ignore specific rights? What both seem to miss is that all rights belong to the People. A few of those are enumerated as particularly important examples, but that does NOT limit the rights of the People.
I think we should all read and study the Constitution, and the Bible, so we can understand more clearly the foundations of our government and society. But we need to realize that nothing is set in stone. Change is inevitable. Once we realize we don't have to make icons of our major documents, yet can maintain respect for the wisdom contained therein, we should be able to move forward with reasonable changes to them. Not that this is an easy task, but it is really our right as well as our obligation to do so to maintain the society we have built.
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