John Whitehead's Commentary
It's Time for Constitutional Reform
In nominating his longtime aide White House counsel Harriet Miers to the Supreme Court, George W. Bush opined that she "will not legislate from the bench." Later in defending Miers, Bush emphasized that "a justice must strictly apply the Constitution." And Leonard Leo of the Federalist Society chimed in that Miers is a "judicial conservative" who will "heed the founders' vision of the role of courts in our constitutional system."
While this kind of rhetoric may resonate with some, it makes absolutely no sense logically or historically. It was as if the Constitution, and those who wrote it, were holy scribes merely penning what God dictated to them. To the contrary, our forefathers were certainly not holy, and the Constitution is far from being inerrant.
This is not to say that I do not admire the Constitution, especially as originally amended. Its great principles of rule of law and accountability of the government to the governed have proven to be important bedrocks of American society. Those who fought the American revolution of 1776 understood the need to keep the government in check. This is set forth eloquently in America's founding document, the Declaration of Independence. But the excessive violence of the French Revolution of 1789 tempered the American revolutionary spirit and gave us the cautious document that became our Constitution.
As we begin to look at the problems that alienate the American people from their government--issues such as taxation, oppressive bureaucratic processes, warring presidents, campaign finances, congressional scandals, over-regulation, governmental expenditures and so on--one realizes that the problem does not always lead back to our elected officials or their policies. The path often leads back to the American Constitution and "the founders' vision" for our government--which includes a very limited role for the courts. Indeed, if the founders' vision for the Supreme Court had not been altered early on by Chief Justice John Marshall, it is highly unlikely that the landmark cases protecting our freedoms would have ever been decided.
A casual reading of the Constitution finds that there are various sections that are either out of date, no longer apply, are no longer being used, are being ignored or simply do not work. If we concede that our government, and to a lesser extent our society, emerges from the Constitution, then it becomes the issue. In fact, the more one examines the Constitution, the more it becomes apparent that this is partially the reason why so many feel disinherited by the governmental process.
I urge you to read through the Constitution. Everything that does not make sense, that no longer applies, items that are not being followed, sections that are unreadable or even parts in which you feel we can do better--highlight them with a yellow marker. When you complete the process, look at the document. The average person will have yellowed 15 or more items.
It has been over 200 years since the Constitution became the law of the land. Since that time, the country and the American people have undergone immense changes that were not and could not have been foreseen by the founders. We are not the same people we were when the Constitution was conceived. Our culture has changed, our ethnic and religious mixes have changed, our technology has transformed the way we live and think, we are more tolerant and our status in the world has drastically altered. The size and structure of our government has grown far beyond its constitutional framework. And few of these systematic alterations to our scheme of government match the original Constitution anymore--a scheme that was developed for 13 isolated colonial states.
We must keep in mind that what was important to the so-called founding fathers--that is, "the founders' vision"--does not really square with who and what we are today. In fact, those who wrote the Constitution were not advocates of a democracy. They were, to a large extent, a landed aristocracy that was intent on protecting property interests. Consider founding father Alexander Hamilton's political philosophy:
The Supreme Court, for example, despite its look of somber, black-robed fairness has, with a few exceptions, generally sided with the government and the ruling aristocracy. How could the Court be independent when its members are chosen by the President and the Senate? How could it be neutral between the powerful rich and the poor when its members are most often wealthy lawyers educated at elitist schools?
To ensure enough popular support to maintain such a governmental structure, the founders were forced to pass a series of amendments to the Constitution known as the Bill of Rights, which by and far is America's greatest contribution to humankind. And what even the advocates of a more democratic form of government did not realize at the time was the shakiness of anyone's liberty when entrusted to the aristocratic vision of the founders.
For example, the First Amendment states clearly that "Congress shall make no law abridging the freedom of speech, or of the press." Yet a mere seven years after the First Amendment became part of the Constitution, Congress passed a law clearly abridging the freedoms so named. This was the Sedition Act of 1798, passed under founder John Adams' administration. The law made it unlawful to say or write anything "false, scandalous and malicious" against the government or government officials. Although directly in violation of the First Amendment, it was enforced. As a result, Americans were put in prison for utterances against the government, and this was enforced by the courts.
The point is that the empty rhetoric we so often hear rolling off the unholy tongues of our politicians concerning our Constitution and the judiciary should be taken for what it is--propaganda used to manipulate an American citizenry unfamiliar with the text of the Constitution. And such rhetoric skirts the real issue. "The Constitution should not be seen as an icon of society," writes professor Rodney D. Scott in his book The Great Debate, "but as a social contract. It is an agreement between the people and their government. It becomes more than just adding a new amendment or changing the legislative rules of order. There comes a time that the fabric of the document itself becomes the problem."
The Constitution in many ways has become antiquated. The politicians, especially those in the White House, know this. And the various interest groups, both left and right, know this as well. Unfortunately, they take advantage of the average citizen's ignorance on this issue.
The judges as well know this. That is why every judge, if he or she sits on the bench long enough, eventually, in some way, legislates. Judges are to a certain extent forced to become activists. This is for the simple reason that our Constitution does not address clearly many of the current legal and social issues that we face. This lack of clarity has created a vacuum. And it is why an entire body of judicial interpretations (or cases) has developed in an attempt to explain what the Constitution means. Charles Evans Hughes understood this. In 1907, he remarked, "The Constitution is what the judges say it is." Hughes later became Chief Justice of the Supreme Court.
We are a constitutional government. Thus, it stands to reason that if we have problems with our government, some of these difficulties will be found within the document itself. But we can change this agreement that "we the people" have with the government.
Clearly, the time for constitutional reform is now. If not, the time will come when the Constitution will be so far removed from the realities of society and government that it no longer applies. As a consequence, our government will no longer be restrained by a written Constitution. The next step, thus, will be government without limitation and the destruction of any semblance of democracy.
While this kind of rhetoric may resonate with some, it makes absolutely no sense logically or historically. It was as if the Constitution, and those who wrote it, were holy scribes merely penning what God dictated to them. To the contrary, our forefathers were certainly not holy, and the Constitution is far from being inerrant.
This is not to say that I do not admire the Constitution, especially as originally amended. Its great principles of rule of law and accountability of the government to the governed have proven to be important bedrocks of American society. Those who fought the American revolution of 1776 understood the need to keep the government in check. This is set forth eloquently in America's founding document, the Declaration of Independence. But the excessive violence of the French Revolution of 1789 tempered the American revolutionary spirit and gave us the cautious document that became our Constitution.
As we begin to look at the problems that alienate the American people from their government--issues such as taxation, oppressive bureaucratic processes, warring presidents, campaign finances, congressional scandals, over-regulation, governmental expenditures and so on--one realizes that the problem does not always lead back to our elected officials or their policies. The path often leads back to the American Constitution and "the founders' vision" for our government--which includes a very limited role for the courts. Indeed, if the founders' vision for the Supreme Court had not been altered early on by Chief Justice John Marshall, it is highly unlikely that the landmark cases protecting our freedoms would have ever been decided.
A casual reading of the Constitution finds that there are various sections that are either out of date, no longer apply, are no longer being used, are being ignored or simply do not work. If we concede that our government, and to a lesser extent our society, emerges from the Constitution, then it becomes the issue. In fact, the more one examines the Constitution, the more it becomes apparent that this is partially the reason why so many feel disinherited by the governmental process.
I urge you to read through the Constitution. Everything that does not make sense, that no longer applies, items that are not being followed, sections that are unreadable or even parts in which you feel we can do better--highlight them with a yellow marker. When you complete the process, look at the document. The average person will have yellowed 15 or more items.
It has been over 200 years since the Constitution became the law of the land. Since that time, the country and the American people have undergone immense changes that were not and could not have been foreseen by the founders. We are not the same people we were when the Constitution was conceived. Our culture has changed, our ethnic and religious mixes have changed, our technology has transformed the way we live and think, we are more tolerant and our status in the world has drastically altered. The size and structure of our government has grown far beyond its constitutional framework. And few of these systematic alterations to our scheme of government match the original Constitution anymore--a scheme that was developed for 13 isolated colonial states.
We must keep in mind that what was important to the so-called founding fathers--that is, "the founders' vision"--does not really square with who and what we are today. In fact, those who wrote the Constitution were not advocates of a democracy. They were, to a large extent, a landed aristocracy that was intent on protecting property interests. Consider founding father Alexander Hamilton's political philosophy:
All communities divide themselves into the few and the many. The first are the rich and well-born, the other the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct permanent share in the government. Can a democratic assembly who annually revolve in the mass of the people be supposed steadily to pursue the public good? Nothing but a permanent body can check the imprudence of democracy.Of course, not all the founders agreed entirely with Hamilton. However, when it came time to draft the Constitution, the founders did not provide for popular elections, except in the case of the House of Representatives, where qualifications were set by the state legislatures (which required property-holding for voting in almost all the states) and excluded women, Indians and slaves--with African Americans being treated within the borders of the Constitution as property. Moreover, the Constitution provided for senators to be elected by the state legislators, the president to be elected by electors chosen by state legislators and for the Supreme Court to be appointed by the president.
The Supreme Court, for example, despite its look of somber, black-robed fairness has, with a few exceptions, generally sided with the government and the ruling aristocracy. How could the Court be independent when its members are chosen by the President and the Senate? How could it be neutral between the powerful rich and the poor when its members are most often wealthy lawyers educated at elitist schools?
To ensure enough popular support to maintain such a governmental structure, the founders were forced to pass a series of amendments to the Constitution known as the Bill of Rights, which by and far is America's greatest contribution to humankind. And what even the advocates of a more democratic form of government did not realize at the time was the shakiness of anyone's liberty when entrusted to the aristocratic vision of the founders.
For example, the First Amendment states clearly that "Congress shall make no law abridging the freedom of speech, or of the press." Yet a mere seven years after the First Amendment became part of the Constitution, Congress passed a law clearly abridging the freedoms so named. This was the Sedition Act of 1798, passed under founder John Adams' administration. The law made it unlawful to say or write anything "false, scandalous and malicious" against the government or government officials. Although directly in violation of the First Amendment, it was enforced. As a result, Americans were put in prison for utterances against the government, and this was enforced by the courts.
The point is that the empty rhetoric we so often hear rolling off the unholy tongues of our politicians concerning our Constitution and the judiciary should be taken for what it is--propaganda used to manipulate an American citizenry unfamiliar with the text of the Constitution. And such rhetoric skirts the real issue. "The Constitution should not be seen as an icon of society," writes professor Rodney D. Scott in his book The Great Debate, "but as a social contract. It is an agreement between the people and their government. It becomes more than just adding a new amendment or changing the legislative rules of order. There comes a time that the fabric of the document itself becomes the problem."
The Constitution in many ways has become antiquated. The politicians, especially those in the White House, know this. And the various interest groups, both left and right, know this as well. Unfortunately, they take advantage of the average citizen's ignorance on this issue.
The judges as well know this. That is why every judge, if he or she sits on the bench long enough, eventually, in some way, legislates. Judges are to a certain extent forced to become activists. This is for the simple reason that our Constitution does not address clearly many of the current legal and social issues that we face. This lack of clarity has created a vacuum. And it is why an entire body of judicial interpretations (or cases) has developed in an attempt to explain what the Constitution means. Charles Evans Hughes understood this. In 1907, he remarked, "The Constitution is what the judges say it is." Hughes later became Chief Justice of the Supreme Court.
We are a constitutional government. Thus, it stands to reason that if we have problems with our government, some of these difficulties will be found within the document itself. But we can change this agreement that "we the people" have with the government.
Clearly, the time for constitutional reform is now. If not, the time will come when the Constitution will be so far removed from the realities of society and government that it no longer applies. As a consequence, our government will no longer be restrained by a written Constitution. The next step, thus, will be government without limitation and the destruction of any semblance of democracy.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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