Why Not Have OUR Constitution Do What Is Best For ALL From Here On?
While I may be able to convince a few people I am a constitutional scholar of the 3rd rank, I did not try. Although for this essay, I thought about compiling a list of our “Constitutional” transgressions that are legion, and lesion. Yet, I will only note some from the first half of the 1800s.
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Many of these transgressions have been inculcated into our historical mindset as if we deserved their benefits, even if they would be odious for us to pursue, or attempt now. We have more than I can count of these controversial actions, and I was recently reminded of one we all learned about in grade school.
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Most Constitutional transgressions have supporters, even till this day. Former slave-holders thought they saw many Constitutional transgressions during and after our Civil War. However, there are transgressions throughout our history most all Americans may be able to agree on. When I say most all agree on, I mean it is not one we are going to rescind. A transgression recently put in front of me was in a book about the life of Kentuckian Henry Clay, Speaker of the United States House of Representatives, and also a U.S. Senator.
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In some ways Clay was, the Mitch McConnell of his day on the U.S. House side; they called him a dictator too. Although a slave-holder, he was a contradiction like Thomas Jefferson who decried the concept of slavery, but never freed his own slaves, which numbered fifty or more. This violently ugly hypocrisy, and pathetically sad contradiction, buttresses my case for a Constitutional rethink and revision.
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The lawyer of significant legal skill, knowledge, and accolades, Clay, was fine with the Louisiana Purchase, although his opponent in the House was not. Most legal scholars today conclude the Purchase was anti-constitutional, though its legality is, as far as I know, moot, and not rescindable. Whether or not it is, matters not to the argument in this essay. What I am ultimately concerned with is the future, and how past actions are still influencing us.
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Our nation’s history and power is based, to some great extent, on our Constitutional transgressions. That makes us as illegitimate as most nations and empires. Treachery and hypocrisy are found in most wide ranging human endeavors. For example, our Constitution was based on liberty and freedom, yet protected slavery, and gave slave states enhanced representation. In addition, our Constitution created the process of amendments, yet allowed Southern states immunityfrom them.
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Therefore, our Constitution is not originalist in any practical or moral sense, and never has been, and never can be because of its originalist transgressions. However, I will continue for the next few paragraphs to consider both, originalism and its opposite, to explain the way out of our current crisis.
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The Two Faces Of Constitutional Duplicity.
We can argue at length about specific unconstitutional actions taken by Supreme Courts, Presidents, or Congresses, but the reality is, we as a nation have never taken the Constitution completely at face, or parchment value. From my reading of our early history, especially during our constitutional convention in Philadelphia, and into the first decade of our Constitution’s existence, it was considered both a static and malleable document. The same time and place where we got our current originalist and living document perspectives on the Constitution.
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Originalism, although seeming to bring more authority to the document overall, merely makes the arguments in that vein more ridiculous and unsustainable in many other instances. The originalist must still contend with the transgressions built into our vaunted and overvalued history. While two wrongs do not make a right, a (pernicious yet) Constitutional rightbuilt on top of 20+ million wrongs is even more problematic. We cannot solve one problem like segregation or voter suppression because originalists say it goes against states’ rights: a.k.a. the 10th Amendment. This is where our Constitution keeps failing us, when we use it as a cudgel for horrible wrongs to continue.
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A living constitution is seen as some kind of relativistic Ouija board that only liberals and progressives use. Though this may seem the case when looked at with partisan blinders on, it more accurately describes our history in the bad and the good done by all sides. Basically, no party has a lock on perfection because as Americans we cannot extract ourselves from our entire terrible past. Of course, we can do better from here on out. Yet realize that a living constitution is also an unstable concept, particularly without a large and enforceable consensus on where the living document can be stretched, and what it can be formed around.
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On the other hand, originalism was an open door to multiple horrors over multiple decades. Originalism often lived and lives on the scary side of wrongs. It allowed negative actions by the federal and state governments that were not specifically stated, a.k.a. enumerated, to be done to others. For example, it allowed for the genocide of native peoples, slave trading of native Africans, forced labor, and the horrible abuse of black Americans, as well as subjugation of women, to name only a few.
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Since we are mere human beings, it is doubtful we can completely solve this originalist and living document paradox. Conservatives like originalism because change is not their thing. Liberals and progressives like it to be living so they can change things. If we want to change something, Republicans will say, go through the process, write bills, and pass them if you can, or get an Amendment ratified. Democrats will say, but Republicans often will not play by the rules, or refuse to follow the law, or not honor an Amendment. Both parties are correct. Then of course there is packing the courts, like McConnell and Trump have done.
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What we have not done since the Constitution was first constructed is to have any semblance of a review as to the full meaning of our values. Instead we have allowed our Constitution to nickel and dime us around the edges, never coming to a full resolution. We corruptly worship a document fallible humans created, as little is done to regularly and fully update our values as a nation. Yes, this kind of update may require a constitutional convention, but that does not need to be, and should not be our first, and only type of conferencing.
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The biggest problem in such a conference is our ability to avoid contending with the paradox rather than focusing on deciphering and forming a path towards success in some vein. Merely bringing the originalist and living mindsets back to the table, guarantees that the renewal process mires down and fizzles out.
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If there is no reason to change, why revisit a problem the originalist does not see as a problem? For originalists, the problem is change, so they do not want anymore of it, which is directly tied to their dislike of the living and breathing document concept. More importantly, many originalists want to return to older ways, and not improve the lives of liberals and progressives, even though living document changes would also often improve the lives of 60 to 90% of their conservative constituents.
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Reversion to the past, and non-change are their main interest. What Democrats are pushing for is a second tier for them. Rather than thinking of them voting against their interests, consider it as conservatives voting (dying) for the freedom of (certain) others. In most instances, people would say staying alive is in a person’s highest interest, but if you must give your life (or vote) to save your values from certain others, or for the freedom of chosen others, dying becomes a second tier interest. Therefore, letting liberals and progressives change their lives for the “better” is not in a conservative’s main interest.
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In some ways, the fear conservatives have about the slippery slope is justified. Allowing change could possibly mean unforeseen or unintended additional change that thwarts their most cherished societal and economic idols. That means any meeting of the minds must be devoid of mindsets who can never really meet impartially at an impartial site.
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If most conservatives are against change, how could you effectively change a constitution, let alone change the document so it provided for more or easier changes? You could invite them as a check on our propensity to make such a document too wide open, which would be their view of us, but the strainer and grater originalists would put the deliberations through may merely cause the same contradictions, or repeat the same transgressions.
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It is difficult for me to see us resolving this problematic reality, and paradox in a traditionally political way. Not only do history books influence my perspective, so do my life experiences. As I have said in other essays, my parents were very Catholic (anti-abortion/anti-gay marriage), and Rush Limbaugh listening conservatives, especially as they aged.
Ironically, and thankfully dad did fight antisemitism in the 1940s. Both fought racism in the 1960s and 70s in our neighborhood, and school district, and for people with disabilities all their life. However, conservatism became more of a force in their other beliefs, and political stances. They also died before Obama was elected, so I cannot be sure how far they would have gone down the current Republican road. My fear is that their focus had gotten so narrow that accepting Trump as their president, at least initially, could not be totally dismissed.
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The Road To Reuniting A Union Of States.
I do not want to be too drastic in my separation of the paradoxical mindsets, but let us consider this thought experiment question. If we were to meet at the 1787 Philadelphia convention, how would we attempt to end slavery without pushing out other (slave) states? That paradoxical problem has many similarities with the disunion fears and activities we have now. Of course, solving the continued cohesion problem should be somewhat easier since red state lines are not as deeply drawn as slave state lines were.
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The framers of our Constitution met in secret, particularly from the general public, for a number of months as they discussed, and wrote up the document. While it can legitimately be called a form of subterfuge, the document would be presented to the nation, and would need nine of the thirteen states to ratify to go into effect. The people could have objected just as vigorously, vociferously, and viscerally after the proposal was put forward as they could have during its development. To a large extent, no real harm, no unrecoverable foul.
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Additionally, if you consider the paradox I developed above, it makes sense to come to a new conclusion working with a group who are actually looking to form a new conclusion. It does not make sense to invite those who are hostile to anything new to work on the blueprinting stage of the process. That said, having mostly white, wealthy men come up with any plan in secret to make our world better would not go over well today, even if all of them were not the owners of other human beings. Instead we must devise a plan that prevents the paradox stalemate from rearing its ugly head, and does not leave out most Americans, except maybe the 1%.
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The invite would go out to those in the 99% who actually want to come up with a new way of thinking about and implementing our values. While we should consider the economic aspects of our situation, the idea here is to think bigger and wider. During Henry Clay’s time our nation was also accepting many contradictory constitutional ideas. We told native people’s in the southeastern states including the Cherokee that they had to assimilate to be American citizens. After most had assimilated, President Andrew Jackson said native peoples in the southeast had no rights, basically because settlers wanted to mine for gold in Georgia. Then the states forcibly removed them, slaughtering thousands on the Trail of Tears. Another instance where the originalist Constitution horribly failed.
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The Supreme Court finally took on the case, but only after a white government official appealed. The states used, in this situation and others, the traitorous nullification clause, secretly developed by the Articles Of Confederation originalist, Thomas Jefferson, to make their bogus case, which failed. They resorted to bullying the federal government. Killing sixty thousand people was not stopped by a Constitution, it was overruled by greedy white bullies. Who might that style of government remind you of?
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Our Constitution has been a regular failure to certain human beings it disdains. Some eighty years later it would fail again spectacularly during Reconstruction. While the Supreme Court decides the constitutionality of a law, ultimately it is the federal government that must enforce it. This is where the Constitution becomes wholly political, the rule of law is placed in a nebulous soup of decision making. If the Constitution does not need to be enforced, is it not a worthless document? The Constitution requires more than legal experts; it requires the consensus-force of the people.
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Unfortunately, we have a document that allows for its own corruption. Few rights are spelled out, and some those are not enforced. Therefore, values, laws, and enforcement have been, and will be, arbitrarily differentiated:
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Men can have these rights, but women have these fewer rights.
Blacks have these rights in the North, and other rights in the South.
Getting a home loan for blacks will be 80% harder than it is for whites.
Harming a POC or LGBT person is less important than harming a straight white.
Black people can be seen as more threatening by society, so police can kill them at more than three times the number of whites without any worry of being charged, let alone imprisoned.
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How do we not have a white male supremacist Constitution with the former abuses, as well as with many other similar abuses still occurring? While there are, and were, anomalistic exceptions to a white male supremacy label, like a black Supreme Court Justice, three female justices, and a black POTUS, there is absolutely no way any white male would put up with even one half the abuses the average black person experiences due to our current originalist, Constitutional structure.
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Isabella Wilkerson, from her book Caste: The Origins of Our Discontents, makes it plain when she writes, many Americans are viciously or unwittingly willing to sacrifice democracy to perpetuate whiteness as the highest, and most politically dominant caste. Constitutional originalists are hard pressed to avoid falling into the trap of the white supremacist. Their fealty to this perspective is a major reason we cannot eradicate the abuses and prejudices of our past.
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The Fault In Our Scars.
In Harlow G. Unger’s biography of Henry Clay, he quotes Clay telling an abolitionist petitioner that Southerners are not responsible for slavery: it is our misfortune, not our fault. He blamed the peculiar institution, which Clay always denigrated, on the British. Notice anything familiar about what he was doing? Yes, Clay was using the same palm-it-off-on-others denial method used by white privilege deniers of today, we never held slaves or worked on the white citizen councils, so how are any societal problems caused by slavery and Jim Crow our problem to deal with, or pay for?
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While a great statesman in some ways, Clay selfishly exonerated himself, and white washed the stain of slavery from his hands. That exoneration got two grandsons killed, and another one fought against the others, in our Civil War. Why did he not do more to end slavery, personally free his slaves, or fight the damn war himself earlier, instead of sending his sons and grandsons into that meat grinder?! He made much of his wealth from despicable human (property) degradation, and he got great accolades as a Congressman who protected slavery, but sentenced his progeny to pay for his sins in the hell of civil war. Convenient for Clay, was it not?
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If we own our original Constitution, we own the scars it has produced. Blaming them on our old selves is simplistic, tired, and unproductive. There is no us and them. That is because we are the United States, so we are united with our past, for good and for bad. Escaping by forgetting, or covering it up is impossible. It is our fault until no fault lines remain. Accepting fault and making amends is not weak, unpatriotic, or self-hating, rather it is honorable, and helps us move forward faster more effectively.
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Changing our future is possible. Continuing to reopen those wounds only damages and deflates us. The scars will and should always be with us because forgetting allows others to revive our past with a vengeance as we are stunned and confused. That being said, we can rise higher by keeping our scars in mind, thereby avoiding the same mistakes that will trip up us and bring us down. Imagine all the problems we have created by continually stumbling over our past due to willful ignorance and exceptionalism hubris.
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As Wilkerson noted in her book Caste, each successive generation has inherited this house. We must repair the structural failures (scars) that our (white) ancestors are responsible for, and are necessary to make it inhabitable for future generations, painting over our rotten (slavery) floorboards will never make us greater.
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The Constitution Chokes On Inconsistency.
Another legislative bill that became law during Henry Clay’s time in office, was the 1836 slavery Gag Rule. The law prohibited petitions being made in Congress that had anything to do with slavery, pro or anti. No Congressperson could talk about it during the regular sessions, all petitions related to slavery were immediately tabled. Yet, the 1st Amendment gives us the right to petition the government for a redress of grievances. Even so this quashing of our Constitutional rights lasted over eight years, from 1836 until 1844!
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The lawmakers who instituted the Gag Rule were the sons of our founders, who should have been ten times the originalists of today’s progeny. These flagrant legislative actions show that we often have a disdain for the Constitution depending on our desires at the moment. Supreme Court Justices are no more trust worthy in these endeavors than legislators. This shows up in flip flopping over two centuries on laws for, or against business, gender and race discrimination, voting rights, and the list goes on.
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For example, Chief Justice John Roberts destroyed the Voting Rights Act, making up a story about racism being mostly eliminated from elections. His Shelby County v. Holder ruling made possible extensive voter suppression actions by the states. Another instance of states’ rights destroying the rights of individuals, especially people of color. The justice he seems to admire the most, Roger B. Taney, wrote the worst opinion in our history that determined black Americans were less than human. How does a constitution that promotes freedom and liberty elicit such gruesome and repugnant activity?
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Both Roberts and Taney used only their conservatively narrow, and woefully uninformed perspectives to determine these decisions. Yet Constitutional originalism has allowed these decisions consistently. Rulings that literally choke the life and future out of people. Many justices blindly follow this arbitrary, and supposedly original trail of logic. If this is what an original constitution does, something is obviously wrong with it. It is clear that there is no consistency or humanity in its pursuit, which means there is little to no value in the ideology of originalism.
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This reality is especially clear and problematic because our Constitution caused the Civil War with its founding transgression, the 3/5ths (slavery) Clause, and it allowed slavery via a corrupted and thoroughly contemptible concept of private property. The insidious diseases it spawned were never fully excised as we can see in its morphed progeny, Jim Crow peonage, and current day police actions and mass incarceration.
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Therefore, we must drop the bogus originalist perspective, and also come up with a better idea than a living constitution, which is nothing without true and consistent enforcement. Neither is doing the job. Both come up way too short, too often.
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The Conclusive Cure.
Half way through Jeffrey Rosen’s book about Justice Louis Brandeis, who served from 1916 to 1939, he noted Brandeis’ concept, laboratory of democracy, in association with his view on states’ rights and economic activity. While there may be some avenues for economics to play a role in combating monopoly, the states’ rights laboratory has been a complete failure for human rights of most every other kind.
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Rosen did make mention of how the increased corporate control of federal and state governments could make Brandeis’ states’ rights laboratory of democratic economics inoperable today. The corporate capacity to accomplish their insidious inoperability is where my states’ rights critique hits home. Americans have no ultimate protection from big money, and the sink hole practices of status quo originalism, as to the Constitution and race. As the Constitution continues to lag and sometimes gag, the vulnerable — poor whites to blacks murdered by cops — pay the price for being patient until the nation finally gets its act together.
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There are no perfect solutions, but a more perfect solution does not necessarily come from beating our heads against the wall faster or slower in different places at different times. The historical progression has not bent as evenly toward equal opportunity and justice as has been purported by some. The obscenely financed, and politically powerful, press down hard continually; what we win is often more accidental than it is by design. That is due to original design flaws. A living Constitution is a fantasy because it is still living off a parasitic core, which continues scarring many.
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The only way to fight successfully is to overpower the corporatized host, and the white supremacist parasite with a countervailing vaccine. Brandies espoused a concept that states should protect the welfare of the community rather than consumers. During the early part of the 20th century states may have had a chance to do this, but with Jim Crow, the overall structure would have been defiled by severely discriminatory, racial laws. Today as Rosen says, the corporate, monopolist influence in government federally and in the states makes a Justice Brandeis solution much more complicated.
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The threat to democracy by monopoly-money influenced politics has redoubled since 1939. The racist threat to democracy is still so close to the surface we cannot wait for another accident, or calamity to wake us up. Of course, last week on Capitol Hill we had one of those wake up calls. At best, it seems we have always had a sleeping Constitution.
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What America needs is a hypodermic hyper-adrenalin needling Constitution! I call it the WTP System. Formed by We The People, citizens who simultaneously look after their local community, state, and nation. Tied to no political party, and not overtly political, it discerns and implements solutions rather than making vacuous pronouncements and vain promises. With equal or greater force, often successfully pushing back against corporate-monopoly, and racial, gender, age and people with disabilities discriminatory actions.
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The WTP System provides a nationwide platform without the worries Brandies had about government centralization. That is due to its We The People construct. It is both local and national. It is neither socialistic or capitalist. It is pro-worker and pro-small-to-not corporate-ugly sized businesses*. It is both collective action and individualistic ideas. It is worker and citizen focused. It finds jobs for every person looking for one, ending illegal and unethical discrimination, while helping *businesses thrive. It vigorously supports civic, economic, and all public education.
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The new system is a democracy, and competitive “free” market, booster shot. There is no need to change the political system, or even augment the Constitution. Think of the WTP System as a new, and massively powerful pillar, and (needler) watchdog that supports, and fights for citizen and worker rights.
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by Richard The Chwalek.
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WTP System related essays on Medium and here:
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