Why is it that every other constitutional democracy on the planet simply changes its constitution when it needs to, with little effort and no hoopla, in order to accommodate the changing needs of the country? Why are our state constitutions changed readily, easily and often (230 times) to better suit changing conditions and requirements? So why is it so God-awful difficult to change the US Constitution? We argue constantly about “what the Founding Fathers meant” by this or that. To hell with what the the Founding Fathers were thinking – let’s amend the wording to make the meaning perfectly clear about what we are thinking.
The job of the Supreme Court seems today to be less resolving thorny moral and legal issues that have been placed in front of it by appeals from lower courts, but more “interpreting the Constitution”. Why? Because some moldy old phrase needs to be “interpreted” to properly address “gun ownership” or “corporate free speech” or some other modern cause that has been thrust upon us.
For heaven’s sake, let’s just change this dusty wrinkled old document to better suit modern times and current needs. The constitution is simply a document upon which our supposedly representative government is based. It describes the role of the president, legislative bodies and how they are elected; it describes the states and the relationship among them and to the Federal government. It outlines how laws are to be established and how power is to be divided among the executive, legislative and judicial branches. The Constitution was written by men who owned property that included human beings, slaves to be exact. It was written by men still struggling to understand and address issues related to voting and taxation, the relationship of the Federal government to state governments and the role and powers of a quasi monarch (the President) in this government. Yes, the Constitution is not perfect and furthermore it was not “handed down to us by Jesus” as the Utah “artist” Jon McNaughton would have us believe. The Constitution does not have to be venerated, worshipped or handled with care. It is a piece of paper upon which the basic laws of our government are written. If some need to be changed or re-written, let’s do so. And let’s begin by changing the Constitution itself to make it easier to change in the future. No constitution of any modern democracy is as difficult to change as ours.
To further address what needs to be changed, think about the following. What would the “Founding Fathers” think of the issue of gun ownership today? Are the three hundred million guns floating around in our families and communities, packing enormous firepower and wrecking horrible havoc, death and sorrow on those families and communities, what they had envisioned as the “right to keep and bear arms” for a “well regulated militia”?
And what would the Founding Fathers think of today’s problems with the “Electoral College” system of electing a president every four years, where a George W. Bush can be elected president while not earning a majority of the popular vote, or presidential campaigns being waged exclusively in “swing states” while the rest of the country is ignored?
What would the Founding Fathers think of the current “representiveness” of our Congress, where 50 of our Senators represent only 16 percent of the country’s population (example: a California senator represents 18.7 million people and a Wyoming senator represents 282,000) and where House voting districts are gerrymandered to render a great majority of congressional seats completely uncompetitive. For example look at Ohio, which, despite voting Democratic in the last election, returned 12 Republicans and only four Democrats to their seats in the House of Representatives.
What would these venerable constitution writers think of the role of money in politics today, where massive injections of money have created a virtual shadow government run by the Koch brothers and where Republican presidential candidates have had to compete in a “Billionaires Primary”, bowing down and groveling before the likes of Sheldon Adelson to win his blessing and the millions of dollars of campaign money that come with it? Don’t you think that these “Founding Fathers” would want elections to be competitive and won on issues rather that who had the most Koch or Edelson money? I think that the “Fathers” would immediately obliterate any notion of “corporations being people” and “money being free speech” that drives today’s elections.
And what about voting rights? The white propertied males who wrote the constitution were divided about who should vote. But the Bill of Rights addresses voting in the Fifteenth Amendment and the language is generally interpreted to mean that everyone should vote. Furthermore, Congress has visited the issue again and again, generally establishing that there should be no obstacles to voting. Yet, what would the Founding Fathers say about the present efforts to restrict voting, unfortunately supported by the latest Supreme Court decision, “Shelby County vs Holder”? I think that they would rewrite the constitution to make universal suffrage crystal clear, abolish any and all forms of voter restriction and make voting as easy and as effortless as possible.
What would the Founding Fathers think of our use of the hideous and barbaric death penalty? If anything is “cruel and unusual”, the death penalty is. What would they think of firing squads, hanging, the search for “ideal” cocktails of various poisons which can kill easily, quickly and “humanely”, or the electric chair or the gas chamber? Or the uneven application of this sentence across the country? I don’t think that there is any doubt that were this distinguished group to observe all this today, that they would immediately classify the death penalty as “cruel and unusual”, thus amending the constitution to outlaw it immediately.
What would the Founding Fathers think of the way Congress functions now? Obstruction, opposition, impasse, no compromise, few laws passed. Congress has virtually gone on strike and nothing in the Constitution can compel Congress to act. What would they want to do about members of Congress representing special interests instead of the people? And what about shutting down the government, which actually has occurred a few times, most recently in 2013, over congressional funding and Presidential authority issues, both of which were promoted by their respective supporters as “defending the constitution”. Look at the host of presidentially appointed judges and government officials that remain unconfirmed by the Senate while their offices remain unoccupied and dysfunctional. In many respects, our government has simply failed to function. Even preparing and approving a budget seems impossible. The 112th and 113th Congresses were the least and second-least productive on record, passing just 283 and 286 laws, respectively. And the present 114th Congress is not doing much better. Certainly the Founding Fathers would want to draft language to address these serious problems which have the potential to make the most powerful nation on earth a “failed state”.
Finally, one recent attempt to amend the constitution, Equal Rights for Women, passed the House and Senate in 1972 but fell three states short of the 38 state legislatures needed for ratification. This Amendment should be revived and again put before Congress and the states. But, alas, looking at how Washington functions now and how most state legislatures have been taken over by ALEC, its chances of passage look far more bleak now than in 1972. But Equal Rights remains one more area in which the Constitution has fallen short and needs to be amended.
Distinguished retired Supreme Court Justice John Paul Stevens’ new book, “Six Amendments” provides additional and much more erudite justification for much of what I have offered above. His “Six” concern campaign finance, the death penalty, gerrymandering and the second amendment which I have covered above, along with the addition of two more areas with which I am less familiar – the “anti-commandeering rule” and “sovereign immunity”, both of which are eloquently justified by Stevens and appear to be certainly needed to address serious problems.
Before closing, I should mention that what I have proposed above and what Justice Stevens has outlined in his book are essentially liberal positions embraced by the Democratic Party. To be fair, let’s not forget that the Republican Party and their candidates for President, both standing and fallen, have embraced amending the constitution as well. High on their lists are a “balanced budget” amendment which would spell disaster for the fiscal health of the nation and a “stop Obamacare” amendment. Former candidate Marco Rubio also had proposed amendments to “outlaw flag burning” and “establish the fundamental right of parents to be free from government infringement in child raising” (whatever that means). Candidate Ted Cruz has proposed an amendment “to define marriage as between a man and a woman”. Also on the Republican list is an amendment to limit congressional terms (maybe not too bad an idea).
Let me close this piece by asking the reader to notice the difference between how Democrats or “progressives” would amend the Constitution and how Republicans or conservatives want to amend it. The former have largely embraced what I have outlined above, all efforts to protect or expand rights, while the latter have embraced potential amendments that limit or take away legal rights. We need to seriously consider which amended Constitution we would like to live under, but most of all, we need to improve our Constitution to better suit current conditions and address modern problems, and we badly need to make this amendment process a whole lot easier.