Our 18th Century Constitution


Our Eighteenth Century Constitution

The world, and this nation, was a much different place back in 1787.  The changes over the past 225 years are  indescribable.  It is hard to understand the passion of the Tea Party and other conservatives to return to an 18th Century viewpoint of government.  Do these antiquarians realize that the original Constitution allowed for chattel slavery? And that suffrage was limited to white, male, property owners?  Have we learned nothing in the past 225 years?

Even in its amended state, The Constitution is still showing its age.  What made perfect sense back in the 18th Century makes little or no sense today.  In the 18th Century America was much like the European Union of the 21st Century; it was a collection of sovereign states struggling to work together for security and economic development.  It took the newly minted Unites States of America until after the Civil War to decide that it was one nation, and not a loose collection of states.

The Constitution never mentioned such things as NASA.  We spent much of the 19th Century arguing over whether we could have a central bank or not.  George Washington kept the entire Executive Branch of the federal government in two filing cabinets.  The only communications network was the post office, as established in Article I Section 8.

Some would say that the Constitution has served us well over the past 225 years.  However, there are distinct signs of its increasing dysfunction.  If the Constitution were to be written today it would be a much different document.  Listed below are some highlights of changes that might be in order.

Electoral College

In 2000, the will of the nation as expressed by the voting population was thwarted by the dangerous and antiquated Electoral College.  There were a whole series of problems in the election in Florida.  Because of the Electoral College, Florida got to decide on its own who was to be president.  Just to cite one of the many problems, “butterfly ballots” in Dade County caused 35,000 votes for Al Gore to be mistakenly cast for Patrick Buchanan.  Even Buchanan himself conceded that these votes rightfully belonged to Al Gore.  But there was no way to fix them.  In the final tally George W. Bush won the state and the presidency by 537 votes in the state of Florida.

With a tight and hotly contested election underway now in 2012, the Electoral College may once again thwart the will of the people and elect the candidate that came in second in the popular vote.

There are so many issues with the Electoral College that one scarcely knows where to begin.  One issue is the “unfaithful elector,” who may fail to vote his state’s preference.  This could be done for partisan reasons, or perhaps just to throw a monkey wrench into the entire proceedings.

If you are a Republican in California or a Democrat in Texas there is no need to vote for president at all in 2012 as your vote will not be counted.  The only way to make your vote count would be to transfer your legal residence to a swing state such as Florida or Ohio.

Gun Control

As recently as the Reagan Administration, the Constitution was thought to link the “right to bear arms” to “well regulated militias”.  Indeed, the very wording of the Second Amendment seems to make that point perfectly clear.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 

More recently, the Supreme Court on the urging of the National Rifle Association has taken that passage to mean the private use of  unlimited firepower under any circumstances.  While it is understandable that some people would want to own hunting rifles, and guns for home defense, there can be no justification for military assault style weapons, armor-piercing bullets, or large 100-shot magazines such as was used at the Aurora, Colorado shooting.

For the sake of argument, even if we accept the NRA’s position that there is no link between the “right to bear arms” and “well regulated militias,” it seems inconceivable that the “right to bear arms” was ever meant to be an absolute.  Freedom without restrain is anarchy.  The Supreme Court has drifted towards anarchy in the issue of gun control.  What will our future hold if this drift continues?

There must be balance in all things.  We must always balance freedom with control to create a well-regulated society where all of us can pursue our own dreams in safety.  What kind of society do we create if we have to worry about being shot to death in a movie theater, or in a house of worship?

The Preamble to the Constitution sets out one goal of government as being to “promote the general welfare,” and to “insure domestic tranquility.”

If we allow private citizens to amass and use military style assault weapons then we risk the loss of government control altogether.  We could become a “failed state”, such as Somalia, Columbia or Pakistan, where power is held by heavily armed war lords and their soldiers, where government is either non-existent, as in Somalia, or unable to govern much of its territory.  Surely not even the NRA would want such an outcome.

Free Speech

Free speech is another area in which we need to balance freedom with restraint. Free speech, very much like the “right to bear arms,” is often construed as an absolute right in the eyes of the Supreme Court.  And such absolutism has created many senseless and preventable instances of abuse that could have been prevented.

Free speech as found in Amendment I of the constitution clearly seems to be tied to political speech.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

My background is not in law, but rather in theology, biblical scholarship, and sacred history.  As a biblical scholar I learned to do exegesis on ancient texts so as to discover their deeper meanings.

When I use my exegetical tools on this passage I find that it is clearly talking about political speech.  It is tied to petitioning the government for the redress of grievances.

There are a few things that should not be considered “free speech” under the constitution:

  • Commercial speech
  • Symbolic “Speech”
  • Hate speech
  • False speech in the public arena

Commercial Speech

If the speech is for commercial purposed than clearly it should be regulated.  There should be regulations preventing specious promises, distortion of facts, and all sorts of deceptions in the public marketplace.

Symbolic Speach

The courts have ruled many form of action are permissible under the rubric of “symbolic free speech.”  Examples include everything from panhandling, to flag burning, to going topless.  Panhandling should be seen as a commercial activity and hence subject to regulation.  Going topless does not seem to be “speech,” and does not seem to involve the redress (no pun intended) of grievances with the government.  Flag burning is the kind of topic that should be discussed as we seek to explore the boundaries of legitimate free speech.

Hate Speech

Europe has very tough laws against “hate speech.”  Hate speech in the US is tragically allowed under the rubric of “Free Speech.”  Hate speech involves such actions as marches organized by white-supremacy groups in order to harass, threaten and intimidate minorities.  Hate speech is made by a sick “church” that disrupts military funerals in order to protest the presence of gay persons in our society.  Can you imaging the pain of losing a loved one who has made the ultimate sacrifice in serving our country.  And then, can you imagine the horror of an anti-gay protest turning a memorial service into a firestorm of abuse?

Hate speech is the taunting and bullying that causes many children, youth and young adults to commit suicide.  Hate speech is the use of racial or sexual epitaphs.

The First Amendment talks about the right to “peaceably to assemble.”  There is a great difference between a protest and a riot.  Similarly, the concept of “peaceably” should relate to free speech as well.  Free speech is meant to engage (peaceably) in political discussion, not to bully, threaten, harass and intimidate.

And once again, the Preamble to the Constitution sets out one goal of government as being to “promote the general welfare,” and to “insure domestic tranquility.”

False Speech in the Public Arena

The “Stolen Valor” law was intended to prevent people from claiming military honors under false pretenses.  One candidate for public office claimed that he held the Congressional Medal of Honor even though he had never served in the military.  The Supreme Court said that his outrageous lie was protected “free speech.” The government should have the right to regulate such egregious misrepresentation of the truth.  Outrageous lies ought not to be given protection under the rubric of free speech.

We have laws against perjury.  No “free speech” defense is allowed as justification.

The Reapportionment of the United States Senate

This is one of the most undemocratic provisions of the constitution.  Individual states that modeled their upper houses after the US Senate were told by the US Supreme Court that this was unacceptable.  Iowa was one such example.  Each of the state’s ninety-nine counties had one state senator.

The apportionment of the US Senate may have made sense in the Eighteenth Century, when we were a collection of sovereign states.  But it is an undemocratic anachronism today. If this style of apportionment is illegal for the Iowa Legislature it should be illegal for the Congress as well.

The Role of Government

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

This would be a great time to look at the role of government and what we would like to see it do in the 21st Century.  NASA once again comes to mind.  Should not one of the functions of government be to support basic research?

Our nation was made great due to a free system of public education.  And now that free public education that made us great is under attack.

Preservation of the global environment is a critical issue for our survival.  In the 18th Century the world’s resources were seen as infinite and inexhaustible.  Today we know that we are living on a small green and blue space ship with no chance of replenishment.  If we burn through our resources or poison our habitat we have no chance of survival.

Infrastructure was mentioned in the Constitution under the establishment of Post Offices and post roads.  Surely it is time to expand our language in this section.

We need to take the Preamble more seriously.  Why do conservatives skip over the wording, “promote the general Welfare.”  Does not this require a lot of government responsibilities that we should take seriously?

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