New Constitution?

by Gerard Emershaw

“You say you'll change the constitution
Well, you know
We all want to change your head”

Lennon/McCartney

“I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around”

Townshend

Retired Supreme Court Justice John Paul Stevens wants to amend the Constitution. Among the tweaks to “the law of the land” that the elderly jurist wishes to make are major changes to the First and Second amendments. In his latest book Six Amendments: How and Why We Should Change the Constitution, Justice Stevens argues for the following amendments to the Constitution. He wants the First Amendment to remove protection against “reasonable” campaign spending limits at both the federal and state levels. He wants the Second Amendment to be rewritten to state that only members of the state militia have the right to bear arms. He wants an amendment to prohibit political gerrymandering to create “safe” Congressional seats. He wants to eliminate the anti-commandeering rule by which the federal government may not force the states to carry out federal government activities. He wants to eliminate sovereign immunity for violations of constitutional rights. He wants to amend the Eighth Amendment to state that the death penalty is “cruel and unusual punishment.”

In general, Justice Stevens’ suggestions would lead to fewer rather than greater rights. Americans would have their natural rights greatly diminished by his suggested changes to the First and Second Amendments. Campaign finance contribution limits are unnecessary and violate the natural right to free speech. The natural right to bear arms is a necessary safeguard against tyranny which cannot be infringed without inviting inevitable totalitarianism. States would come dangerously close to becoming slaves of the federal government if the anti-commandeering rule were eliminated. Eliminating sovereign immunity is a good idea, but it ought to be unnecessary since that concept is not enumerated within the Constitution. Limiting the use of political gerrymandering would be a good idea, but certainly not at the cost of the other rights that Justice Stevens wishes to eliminate. Furthermore, a Constitution-sized government is one in which political parties would have less reason to gerrymander, and the gerrymandering they did do would have less of a practical effect. Stevens is also likely correct about wishing for Eighth Amendment clarification. The government should not have more rights than the people. If a citizen can only kill in the defense of self or others from imminent harm, then the same is true of the government. Therefore, capital punishment should be eliminated.

Many individuals all over the political spectrum have suggested that the United States ought to have a new Constitutional Convention. The question is whether this would be an improvement. Would this be likely to lead to more rights being protected or fewer? Activists of all stripes would bitterly contest one another in the crafting of a new constitution. Would civil libertarians be able to win the day or would statists? Any compromise concerning natural rights is unacceptable. If civil libertarians wish Americans to be completely free while statists wish Americans to be complete slaves of the state, how would a compromise in which Americans wind up being merely half enslaved by the state be a positive outcome? The major political machines of both party have become hopelessly statist. On the Democratic Party side, the Blue Dogs and fiscal conservatives—of which the unfairly economically maligned Presidents Carter and Clinton were good exemplars—are gone. Neo-progressives rule the party roost. These Wilsonians are the architects of the Nanny state, fascistic wars of aggression, the Social Security Ponzi scheme, and Obamacare. These are the individuals who champion FDR’s collectivist “Second Bill of Rights.” On the Republican side, true conservatives have long been dominated by progressive RINOs and Trotskyite warmongering neoconservatives who care not about deficits or sane fiscal policy as long as the military-industrial complex, oil companies, and U.S.-friendly Middle East governments benefit. Is there any doubt that if these two nasty political machines began compromising, the only true losers would be the American people?

Even if the Constitution were changed to fit the will of the people, it is not clear that natural rights would not be lost. A poll taken in 2000 found that only about half of the American public would vote for the United States Constitution. A 2013 poll found that 34% of Americans believe that the First Amendment goes too far in guaranteeing freedom. According to Gallup, nearly half of all Americans believe that gun control laws should be more strict than they are now.

A new Constitution would inevitably wind up being a legal version of New Coke. What is the point of that when the United States Constitution is Classic Coke? The problem with the Constitution is that it is being obeyed less and less by the government. Time and again, when there is a problem, it is not due to a deficiency in the document but a deficiency in the government’s willingness to be bound by the document. What is the point of either a New Constitution or the current Constitution if the government refuses to obey it?

The true answer is for the American people to hold their elected leaders accountable. The voters must hold their elected representatives’ feet to the fire. Primary them and vote them out if they do not obey the Constitution. Deny support to candidates and political parties which are not true to the letter and spirit of the Constitution. The problem is with our elected officials and with us for putting up with them. There is no significant problem with the Constitution.