The U.S. Constitution: An Overview, March 7, 2011.

The U.S. Constitution: An Overview.
By T.S. Khanna, March 7, 2011.

The Declaration of Independence, July 4,1776, set the stage for a written constitution, even when the Founders were descendents of a country without a written constitution. Probably, they got inspirations from Oliver Cromwell’s speech of December 16, 1653, suggesting that certain fundamental laws should be unchangeable. Cromwell’s speech was a reaction to the parliament’s transferring legislative authority to King Henry VIII. In the absence of a written constitution, there were no guidelines for the parliament.

Capturing the zeitgeist of the time and the prevailing mental intensity for independence, the Founders drafted the constitution in 1787. After several discussions and changes, the constitution was adopted in 1789 by the then thirteen states becoming the United States of America. To avoid disputes, the constitution was kept concise, vague, and general, with some omissions (silence at some points not significant at the time of adoption), generating numerous interpretations resulting in disputes to be resolved by the courts.

Those who hold the constitution in veneration, accredit it for early American success. However, history supports the view that the political mindset of the Anglo-American people, ripened prior to settling in America, was the real cause of success. They established their own economic and political norms for their new patterns of struggle; personal independence, personal responsibility, self-reliance, pride in work, pursuit of excellence, and freedom and courage to explore new resources. The constitution was in rhythm with their mindset. The assertions made therein came to be regarded as axiomatic. Those immigrants were destined for success regardless of the constitution.

The Founders intent was to revisit and reinforce Magna Charta in protecting individual rights and the independence of the states. The individual rights were granted without any mention of attendant obligations. No provision was made to create a non-partisan head of the government or to cover unforeseen emergency situations. The federation of the states was loosely created by giving the right to dissolve their ties at their will.

Much as the adopted fundamental laws overwhelmed the Founders, they did make a provision for amending them: the process stipulated that the proposed amendment must be (a) approved by each House of the Congress by 2/3rd majority, and, (b) 3/4th of the states must ratify the proposed amendment.

With a total population of about three million like-minded people with similar interests, the amendment process was relatively simple. First ten amendments (Bill of Rights) were adopted within two years, i.e., by the end of 1791. 11th amendment (1795) and 12th (1804) were corrections for better operations of the constitution. 13th (1865), 14th (1868), and 15th (1870) were carried out, not by the free will of the people but by the pressure of majority that triumphed in the Civil War.

With the passage of time, as the number of states, population, and diversity kept increasing, the amendment process on controversial issues became more and more complex and cumbersome. Now it is almost impossible to carry out an amendment on issues of national interest.

There are always some diverse segments of population whose interests would run counter to national interests. Such groups are easy to identify but hard to notify because of the prevailing culture of “political correctness”, and “anti-profiling”. Political parties selectively support such groups to retain their power. Each party considers its own interest higher than the national interest.

Politically significant diversity in population, protective intensity of parochial interests, freedom of speech without responsibility, and equal protection under the law ignoring political repercussions have created a constellation of forces. These forces seem to have conspired in creating a smokescreen that does not permit even the identification, leave aside the definition of national interest.

An amendment initiated by any party, regardless of its national merits, automatically arouses suspicious opposition from the other party. Unless the party initiating the amendment is in vast majority (70% or so) in both Houses of the Congress and 3/4th of the states supporting it, the amendment process is virtually blocked.

If the time worn constitution still stands in its original form, it is not because of its wholesomeness of the contents but because of the most cumbersome process for changing it. The provisions that are definite (non-interpretable) limit the power of the government to meet the new challenges. The vague language in other provisions lends itself to several interpretations. The Congress shies away from such provisions avoiding the risk of their enactments being declared unconstitutional (invalid) by the Supreme Court.

In England, Parliament is omnipotent. Its authority is not restricted or delegated by any fundamental or higher law. Representing the sovereignty of the people, it has unlimited powers to enact any law not subject to judicial review. The British constitution is whatever the British Parliament enacts.

In the USA, the Congress is much restricted; (a) it can enact laws only for certain specified purposes, (b) enacting laws in some areas is forbidden, (c) no law may transgress the bounds of the fundamental laws, and, (d) all laws enacted by the Congress are subject to judicial review. In fact, every succeeding congress, has acted as an agent of the first Congress that adopted the constitution, with the Supreme Court acting as watchdog.

Now the force of changing times is so great that the written (rigid) constitution, unless changeable by the Congress with a relative ease, will be twisted or broken. The Supreme Court does not have the competence, nor it should have the authority to change the constitution.

The Supreme Court at the expense of the peoples’ sovereignty, not the Congress who represents the people, has haphazardly changed the constitution. Interpretation and reinterpretation of the constitution are euphemisms for changing or rewriting the constitution. Judicial process works in a disconnected limited legal sphere, insulated from the public will, in resolving the public policy issues. Representing the sovereignty of the people, only the Congress can have the jurisdiction for changing or interpreting the constitution.

Some of the Supreme Court rulings seem to violate the common sense and the prevailing culture of the country. Take the latest case of First Amendment free speech decision on March 2, 2011, (Snyder v/s Phelps). It upheld the right of Westboro Baptist Church, Topeka, Kansas, to abuse and condemn the funeral of a “gay” soldier killed at the war front. This free-speech ruling is against the popular opinion, against the codes of decency, and against the prevailing culture and the common sense. There are several other court decisions on public policy issues that violate the common sense: pornography, convoluted rationale connecting free speech with donation of campaign contributions, abortion, same sex marriage.

Posing as disinterested experts on the true intent and original meaning of the constitutional law, judges use their own predilections and inject their own thoughts into the inert pages of the constitution. For equal treatment under the law, the judges, by their training of blind justice, place moral equivalency between the best of human culture with the worst of human nature. The judges, in a lifetime secured position, are not answerable to the people or accountable to anyone. Yet the Supreme Court transgresses the Congress authority in setting public policies for the Congress to abide by.

The authority to override the Congress and high-jack the constitution in not granted by the constitution. The judiciary has usurped it through the tradition set at initial stages by Chief Justice Marshall, 1801-1835.

There was a time when a written (rigid) constitution was necessary to establish a government structure to assist and facilitate the immigrants coming to build the country. Now a flexible constitution is necessary to meet constantly changing challenges for national security, balanced budget, combating corruption, promoting national unity, facilitating businesses, and meeting emergency situations.

New wars cannot be fought with old tools. Nothing is more destructive than clinging on to the idea whose time is gone. This constitution was an idea whose time had come when it was adopted. But now…. .

If a written constitution does not equip the government with the powers for a timely action in response to the exigencies, the government has two hard options: (a) losing to opposing forces, or (b) to break away from the constitution to save the nation.

On April 4, 1864, Abraham Lincoln wrote: “ My oath to preserve the constitution imposed on me the duty of preserving by indispensable means that government, that nation, of which the constitution was the organic law. Was it possible to lose the nation and preserve the constitution? By general law, life and limb must be protected, yet often a limb must be amputated to save a life, but life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful by becoming indispensable to the preservation of the constitution through the preservation of the nation…..”

The USA seems to be passing through a similar predicament again.

As an advancing nation, every step forward must raise our sight to higher levels to meet greater challenges. The new challenges must revitalize our thinking; create a thirst for more knowledge and new goals; stimulate a desire to excel; and, trigger an added zest for advancement. Now we must take a harder and deeper look at the constitution and give full authority and responsibility to the Congress to make necessary changes in response to the challenge of the changing times.

First, we need to amend the amendment procedure of the constitution. I recommend a change from the existing cumbersome procedure to a simple one reflecting the will of the people:
(a) Any congress member may propose an amendment with a threshold support of twenty five members, (b) Both Houses in a joint session may adopt the amendment with a minimum of sixty percent majority, and, (c) The President may no longer have the veto power.

The voting procedure may be carried out by secret ballot to protect the national minded congress members from the pressures of their parochial minded constituents.

Second, break away from the tradition of Supreme Court overriding the Congress re the constitutionality of the laws enacted by the Congress. Rightfully, Congress must be the supreme body for making laws or changing the constitution. The laws enacted by the Congress must become part of the constitution. The Congress should be made the sole maker or changer of the constitution. The U.S. constitution should be whatever the Congress enacts independently. The Congress may no longer act as an agent of the 1789-Congress adopting the Constitution.