Thursday, June 24, 2004

Constitutional overhaul

To begin, let me define what I mean by “change.” To be more precise, I should use the term “overhaul.” And by overhaul I do not mean radical modification or expansion. I use the term in the same sense one would when describing an engine rebuild. It’s still the same engine but renewed and in some ways perhaps better than new. Experience should at least offer an opportunity for improvement. When new but proven technology is available it makes little sense not to adopt it.

The Constitution has been in service for quite some time, has a lot of miles on it, and in some ways is a bit worse for the wear. But the basic design is excellent and has proven reliable in spite of the abusive use some have put it through. We’d find it quite difficult to engineer a brand new design that would be as suitable and a satisfactory replacement. For unlike a strictly mechanical mechanism, the Constitution is the result of the Framers’ deep and prescient understanding of human nature.

The flowering of science and engineering with all the wonderful gadgets pouring forth from the technocopia seem to have little changed or ameliorated the passions and foibles of humankind. At times, all that these wonders seem to do is increase our inclination to deny our nature. Supposedly we are now “postmodern” – whatever that may be. Frankly, I don’t believe we’re post-anything. If we are, then someone forgot to tell the Jihadists who are trying to re-establish Medieval Islam – this time all across the planet.

If there is one thing James Madison and his cronies understood, it was the will to power. One thing that is most interesting about the Constitution is how much of it is negation, restriction. The whole idea is to shackle, compartmentalize power. Check it, prohibit it. Regarding Federal powers we have phrases like “…shall not be prohibited…”, “…shall not be suspended…”, “No…ex post facto law shall be passed”, “No tax or duty shall be laid…”, “No preference shall be given…”, “No money shall be drawn…”, “No Title of Nobility shall be granted…” – and that’s just section 9! Section 10 goes on to say what the States shall not do.

Then comes the Bill of Rights, the First Twelve Amendments, wherein we’re treated to another laundry list of things prohibited, “Congress shall make no law…”, “…right of the people to keep and bear Arms, shall not be infringed”, “No Soldier…shall be quartered in any house…”, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated , and no Warrants shall issue, but upon probable cause…”, “No person shall be held to answer…”, “… the accused shall enjoy the right to a speedy and public trial…”, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”, “The Judicial power of the United States shall not be construed…”

What’s going on here? Specify everything you don’t want the government to do, and what you’re nice enough to leave on the table they can have a crack at? Guess so. And so, I am befuddled as to how anyone can even imagine that any branch of the government may take upon itself the task of creating “rights” out of thin air or finding a meaning within the Constitution that no one else saw for two hundred years or more. The term most commonly used for the most common form of this process is “judicial activism.” But Robert Bork wryly observes that the Israeli Supreme Court has created a plethora of “Constitutional” rights and Israel doesn’t even have a Constitution! Thus would I prefer to use the term “judicial prestidigitation” as that seems more descriptive.

The fact remains, the more that is read into the Constitution, the more “living” a document the courts or anyone else asserts it to be, the more its tone and tenor are subverted, the more its intention is misdirected. The Founding Fathers were indeed the Founding Minimalists.

Overhaul the Constitution? Well, only in a restorative sense – with a tweak or two here and there. Okay, I’ll fess up. I would also like to include a couple of biggie-sized changes just for good measure. Something that would make negation a “living” process.

Next time: How often should we elect Representatives?


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