Hope for Redistributional Change: Change a “Flawed” Constitution

In 2004, comedian Jay Leno quipped,

They keep talking about drafting a Constitution for Iraq. Why don’t we just give them ours? It was written by a lot of really smart guys, it’s worked for over 200 years, and [heck], we’re not using it anymore.”

Leno’s joke expressed genuine lament for blatant and repetitive constitutional violations evidenced by elected officials. However, while joking about not using the U.S. Constitution anymore, the reality is that many advocate that the U.S. Constitution should, and must, be changed and/or discarded.

Efforts to do so exist in academic and political advocacy.

Georgetown University Constitutional Law professor Louis Michael Seidman argued in an op-ed published by The New York Times in 2012 that the Constitution has “archaic, idiosyncratic and downright evil provisions.” He asserts that getting rid of the Constitution is rooted in America’s founding. Following a list of examples he cites of American leaders who have violated Constitution law, he writes:

In the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.”

Former Supreme Court Justice John Paul Stevens outlines six specific changes to the Constitution in his book, Six Amendments: How and Why We Should Change the Constitution, published last year. Stevens’ suggestions include:

  • 1st Amendment: Remove any protection of “reasonable limits” on campaign spending on both a federal and state level.
  • 2nd Amendment: Specify only a state’s militia, not individual citizens, can have a constitutional right to bear arms.
  • 8th Amendment: Include the death penalty as part of “cruel and unusual punishment.”
  • Require that federal and state legislative districts be “compact and composed of contiguous territory” to prevent political parties from redistricting for “safe seats” and political gain.
  • Eliminate a state’s sovereign immunity if state laws violate the Constitution or any act of Congress; he alludes to states’ rights within a context of “manifest injustice.”
  • Allow Congress to require that a state may perform federal duties in emergencies to reduce “the risk of a national catastrophe.”

Simultaneously, efforts to re-teach public school students about the Constitution have been implemented by the College Board, which produced a “Framework” effective for fall 2014 AP U.S. History curriculum. In is emphasized the importance of the United Nations (which did not exist at the time of the Constitution) and using foreign laws to interpret American laws and the U.S. Constitution.

New York University historian Thomas Bender, asserts “internationalizing” U.S. History curriculum at every educational level is necessary. In his 2006 book, A Nation Among Nations: America’s Place in World History, he writes, “Americans have always found it difficult to imagine themselves as an enemy, as a problem for other people.” If students learn about America from the perspective of their enemies Bender suggests American foreign policy might become more collaborative.

Andrew Burstein, a Louisiana State University history professor, advocates changing the Constitution in a two-part series Salon published last year. Burstein suggests that a new U.S. Constitution should be written, that federal service be mandatory for U.S. citizenship, and higher taxes must be imposed on the rich, in order to “save American democracy.”

Donna Brazile, the Democratic Party’s vice-chair of voter registration and participation, linked to Burstein’s article in a tweet she posted:

We need a new constitution. Here’s how we save American democracy from charlatans, loudmouths and the 1 percent.”

Likewise, Barack Obama stated on a Chicago WBEZ-FM Sept. 6, 2001 Slavery and the Constitution panel discussion that the U.S. Constitution “reflected the fundamental flaw of this country that continues to this day.” He added, America’s Founding Fathers had “an enormous blind spot” when they wrote it.

Obama claims,

We still suffer from not having a Constitution that guarantees its citizens economic rights.” The Constitution is a “charter of negative liberties. … (it) … says what the states can’t do to you (and) what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf.”

The Constitution, and the balance of power the Founders created, Obama argues prevents traditional legal approaches “to bring about significant redistributional change.” Even the U.S. Supreme Court under Chief Justice Warren, he says,  “never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society.”

This article was first published on July, 26, 2015.

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