The American Constitution – A Case for Treatment?

In a forty year professional lifetime of reading countless statutes, regulations and legal documents, there were only two occasions when I realised instantly that I had read something exceptional. One was The Partnership Act of 1890, a document I was required to understand to pass one of my many law exams. The statute was a mere twelve pages long. The law relating to English partnerships was written in language as succinct as could be. The other exceptional document was the American Constitution, which I read when I was at school. I was instantly impressed by its clarity of language, a reaction I remember all these years later. I recall a liking for the structure of government, the certainty of separation of powers and the potential tensions between the three branches of federal government, although I didn’t think in exactly those terms. For me, the document was a work of art.

I am envious of Americans with their Constitution. We Brits, too, have a partially written constitution but it is not codified into one document. We have common law, statute and legal precedent. We also have a Bill of Rights, passed in 1688 following the bloodless Glorious Revolution, when “the Crown in Parliament” became the supreme power but our Bill of Rights is not a document anywhere near as influential as the American version.

Until 2009, we Brits did not have branches of government whose powers were clearly separate and enforceable as such. Our executive branch, namely the prime minister and his or her cabinet, were also legislators, so no separation of powers there. The law lords, our equivalent of the Supreme Court, were not excluded from the House of Lords acting as a legislative body until recently. In addition, the strong government whipping powers in the House of Commons makes certain that the legislative demands of the executive will always be met. In contrast, Americans do not have to put up with attempts by the Executive to circumnavigate separation of powers and force legislation through. I know of only one exception to US separation powers, namely when the Vice-President sits as chairman of the U. S. Senate, with a deciding vote in the event of a tie.

In writing this article, I hold myself out neither as a constitutional lawyer nor as an expert on the American Constitution. I am merely an interested observer. However, I cannot regard the Constitution as perfect. It has surprising omissions. For example, there is no declaration of “one person, one vote,” a bedrock of democracy. Perhaps the Framers were not impressed by the educational standards of a majority of their fellow citizens. The lacuna is rectified by the states in election statutes.

The Constitution makes no provision whatsoever for the regulation of city or town government. True, the largest American city in the 1780s was Boston, with a population of some 8,000 persons, thus there was no apparent urgency to legislate. However, the Framers were aware that by 1789, Europe boasted large city populations, like Paris (750,000) and London (700,000), and it was easily foreseeable that the American urban population would increase with considerable rapidity. Indeed, Jefferson warned it would happen. My conclusion is that the Founders had more than enough to cope with between 1789 and 1792, deciding upon the rules for a federal government and getting the Constitution ratified by the states. City government would be a matter for local citizens and the states.  

            I like the immediacy of conflict, built into the Constitution, between the Executive and Legislature. A President’s legislative programme has to be championed into Congress. Positions on the legislation are taken rapidly and a President can quickly gauge the difficulties he may have to face to get his programme through. Each body has advantages and disadvantages, not specified in the Constitution. For example, the Senate’s power of filibuster, which is a Congressional rule, not a constitutional power, could be removed or altered, as it was during Truman’s presidency, if Congress so decides. Within the Executive, a President has what Teddy Roosevelt called “the bully pulpit”, namely the power to persuade, these days through all kinds of media outlets needing to report daily on presidential activities.

To counter the speed of conflict between the Executive and Legislative branches, the Supreme Court’s role is often decidedly slow. It took two years before Roosevelt’s First New Deal programme was torn apart by members of the Court, known as the Horsemen of the Apocalypse. The Supreme Court is an extraordinary device and is rightfully held in high esteem. Undoubtedly, it is a political body but most of the time, it seeks to transcend partisan politics. On occasion it fails, for example when the 2000 Presidential election was handed to George W. Bush by the Court. I can hear hackles rising. If so, please be sure to explain to me why the Court took jurisdiction in a case which was properly resolvable under the 10^th Amendment by the Florida Supreme Court? Also, please also add to your explanation why the Court’s judgment was expressed “not to be taken as a precedent.”

Where I struggle with the American Constitution is on interpretations made by the Court. Let us consider the First Amendment and the ruling of the Supreme Court that “speech” and “money” cannot be separated in the political sphere. It seems that the law permits a citizen to say anything he likes and to spend his money wherever and on whatsoever he chooses. In principle this is admirable but in financing political elections, there is hardly an even playing field between Mr Oil Moneybags and Joe Citizen.

The Supremes has extended First Amendment rights to corporate bodies and we now have Superpacs. Tens of millions of dollars are paid to finance candidates. Are Americans naïve enough to believe that nothing will be wanted in return? In these rulings, oddly the Court failed to impose a conservative or strict construction test upon what is constitutional, a quality Republicans insisted upon as the litmus test for the appointment of Justice Roberts as the new Chief Justice. Furthermore, the ruling is difficult to reconcile with the ideals of founding fathers who sought to escape the privilege and abuse of wealth of their British masters. In 1792, would the Framers have approved of a rival presidential candidate to George Washington who spent his way to power? Not long ago, John McCain, together with Russ Feingold, sponsored a fair and reasonable statute on campaign finance. That statute is now in tatters, mainly as a result of Supreme Court rulings. Is this what Congress intended to happen? There seems to be something corrosive and corruptive in a political system that allows money, not ideas, to be the dominant factor in an election.  

I am also deeply troubled by the interpretations of the Second Amendment. I know I am treading on hallowed ground and expect many brickbats. Did the Framers really intend all citizens to have the right to own semi-automatic weapons? By extension, what is there to prevent a citizen from parking a Centurion Tank in his front yard? My argument is based on legal reason. The Second amendment provides as follows:

“A well regulated militia being necessary to the security of the State, the right of the People to keep and bear arms shall not be infringed.”

The opening clause of the Amendment is what we lawyers call a condition precedent, in other words something which must occur or be in existence before the rest of a provision can apply. The words are plain. “Militia” in late eighteenth century-speak meant a legally constituted armed force. If a person was a member of such a force, he might keep and use a weapon as part of his duties. How can this Amendment be interpreted to allow Americans in many states to go to a gun show and buy and lawfully keep a weapon?

Now, I am happy to go toe to toe with any NRA member and argue with him or her on their bromides such as “guns don’t kill, people do.” But this is not my point. I am looking at the amendment purely on legal interpretation. I do not believe the Framers had any intention whatsoever of permitting the entire American adult population to have the right to own guns. Had there been such an intention, the opening words of the Amendment would have been omitted because they would have been superfluous.

For certain, there is nothing in the Federalist Papers which shows an intention to arm citizens as a matter of course or right. “Why would it?” I hear people ask. “Those discussions did not cover individual rights.” True but they covered every aspect of federal government for those times.

There are numerous examples of other Supreme Court decisions which are causes for concern, for example the Plessey v Ferguson decision, which contradicted not only the Fourteenth Amendment but the Civil Rights Act of 1875, to recent rulings on the Eighth Amendment. More positively, I know there have been innumerable brilliant decisions by the Court, dating back to Madison v Marbury.

Let me make it as clear as I can. I have no issues with a nation whose laws stem from a document that is more than two hundred and twenty five years old and has, by and large, stood the test of time. It is common ground that if the Executive and Legislative branches of the federal government cannot get the job done, the cause is almost invariably the ideological, partisan political and, probably, personal problems between individuals, not the framework provided by the Constitution. Yet changes are needed to ensure that rights are not trampled upon.

In 1937, Congress held the composition of The Supreme Court sacrosanct, when President Roosevelt attempted his Court Packing Plan. However, is the Court still held in high esteem today for the right reasons? I am bound to question a judiciary which seems to flout the wishes of the majority of both those elected and those who elected them, for the same ideological and partisan political reasons as members of Congress. If my argument has merit, perhaps the workings and processes of the Court need to be re-examined as well.