The US has serious constitutional problems. It's undeniable now. Our constitution was antiquated 70 years ago. We had hints of these troubles: Bush v. Gore; presidential scandals going back fifty years; the resistance to reproductive rights, and how it made SCOTUS nominations a campaign priority; voter suppression; lopsided gerrymanders of states' voting districts; the SCOTUS's virtual nullification of the Voting Rights Act against the clear intent of Congress; the development of corporate person-hood as a legal entity; the equating of money with political speech.
I could continue to cite many examples that prove the US Constitution is failing. This is happening because it's a first draft, therefore, it was bound to show seams and cracks by now. It's a wonder it hasn't buckled before. My contention is that today, the citizens of the US should consider writing a second draft, and put it up for ratification.
Now, I haven't researched this topic yet, but I've long debated politics on social media. I know, for expertise on the subject, that's laughable. Before that, I did the same thing on discussion groups going back 25 years. No, that doesn't qualify me as a Constitutional scholar either.
However, those many political discussions and arguments do give me experience with the popular opinions and our various factions understandings of US history, civics, and politics. It's also caused me to think and read about political theory. I will study more as I post more blog entries on the topic.
The right to question
Nevertheless, I'm starting with this assertion: the greatest problem in our Constitution is the lack of a definition, or any clear description, of rights. It cites some rights definitely exists: free speech; freedom of religion; the right to remain silent. Then concedes that there may be others not mentioned (the 9th Amendment), and the ones that aren't mentioned are reserved to the states and the people "respectively" (the 10th Amendment).
In other words, the Founders punt. Their most important document gives no hint as to how to recognize if a specific right, or what human options or actions are rights and what aren't. It basically trusts our intuition.
A detailed discussions of rights are in the Founders' writings. Thomas Paine's Rights of Man being a great example. Judges and justices alike have gone to the Founders' secondary writings for guidance. But one needs to ask: which Founder and when? They not only differed in their opinions, but their opinions changed over time. If they had known that scholars and judges would be culling their private writings for wisdom on how to run a nuclear-armed country nearly 250 years later, would they have written the same things? It's impossible to know, of course, but then how do we know the musings from the doctrine and dogma?
The Federalist Papers, are a good source to find out what they thought as the Constitution was being considered for ratification. However, those are the opinions of only three Founders.
Worse, by 1800, their entire vision of how the new country would operate had completely broken down. They created our system in the hope that it would avoid factions, then they watched their dream fail. The contentious factions fought so bitterly that the Founders were in despair. But they had no other plan, so the new system continued to evolve.
Another source are the debates in state legislatures about the Constitution. But again there's the problem of which Founder to choose as the expert? Also, if they thought that way at the time, what did they think later?
The Founders themselves obscure things further with hypocrisy. It's not strictly true that modern liberals hail by what the Founders promised, while Conservatives are more influenced by their actions, but it's mostly true. How Jefferson could espouse on freedom and rights while owning slaves is often cited as irreconcilable. He doesn't say how, in any of his writings, the man who developed the political theory of rights in the Declaration of Independence had no conscience about keeping his slaves. His promises to release them all appear to be for show, and pale compared to what he did.
In the Declaration, Jefferson asserted that all men (women not thought of yet) have inalienable rights endowed by the creator.
He did this, because the Declaration had to explain why a rebellion against a king who ruled by the Will of God wasn't a rebellion against God Himself. Inalienable rights were Jefferson's challenge to the Divine Right of Kings. The political theory served its revolutionary purpose, but how much did Jefferson, and the other Founders really believe it?
If we judge by their actions and writings after the Revolution, they mostly act like it was sophistry all along. Then again, so was the Divine Right of Kings. I will say just because the Founders used Jefferson's theory as an excuse doesn't mean that Jefferson's insight was false, or unworkable. I believe the opposite is true, but Jefferson, like other Southern Founders who grew up in the slavery caste system, probably would've been panicked at suggestion that they live one day without their slaves.
End of Part 1.
