Dissent against the U.S. Constitution went out of style a long time ago, maybe during the Jefferson administration. The apotheosis of the document began with its drafting and was complete with the highly centralizing jurisprudence of John Marshall. With it, the "revolution" was complete, and the British elite was replaced with the American elite. We were supposedly a country of "laws" not "men." But to which men—and whether to women at all—the laws applied was a question most of us gloss over in our histories and interpretations of the Constitution. Today, 93% of Americans would vote 'Yes' on the Constitution.
Did the Constitution itself create any new rights for the people or materially improve the lives of Americans living under its rule? No. In fact, the reverse, if not true, is at least arguable.
The Constitution is a collection of words. It is the more thoughtful person's flag. It is not a self-executing collection of words. It relies on people, money, other laws, and the practice of justice to mean anything. We rely on the words for our rights, instead of the people's demanding those rights, at our peril.
Attorney at Arms is licensed to practice law in California, Minnesota, and is on the Roll of Solicitors of England and Wales
UPDATE:
Preface:
This is not a diary arguing for an English system
I used the UK as a "control group" because it our legal system originated in it.
This is not a dairy calling for the repeal of the Constitution.
On the contrary, I am arguing that only diligent policing by an active citizenry will enforce those rights we hold dear.
I do not suggest that the Constitution created the systems of oppression in America.
On the contrary, I suggest that it was used as a rationale for those systems. It did not stop them. That's my point.
Please consider these points before calling my a dirty muslin socialist. (;
When we reference the Constitution today, both liberals and conservatives, we are referencing an abstract set of ideals which vary wildly among the public, but are more tightly focused among the judicial elite.
On many occasions, in fact, the Constitutional has been used by the Courts both to obstruct minority rights and thwart the will of the majority. Federalism principles allegedly imbedded in the Constitution formed the rationale for the Dred Scott decision, preventing the black minority from even achieving a modicum of civil rights outside slave states.[*]
Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.
Dred Scott v. Sanford 60 U.S. 393. (No, that doesn't make sense, it's not just you.)
A few decades later, the corporate and railroad lawyers that sat on the Court began striking down legislation passed by states to regulate, among other things, working conditions. This was the Lochner era. This judicial philosophy held that states had no power to interfere in commerce under their general police powers to regulate the health, safety, welfare, and morals of their citizens, but (surprise!) they held in companion cases that Congress didn't have that power either under the commerce clause. This was not a question of minority rights at all. This was a question of duly enacted legislation being blocked.
Trade unions were legalized in the UK in 1871 (Trade Union Act of 1871), and the UK began regulating wages and hours in 1802 (Factories Act of 1802). None of these laws would have been allowed by the Lochner court. Unions were "illegal conspiracies" until the Clayton Act of 1914!
Indeed, the lack of these supposed verbal Constitutional bulwarks did not inhibit the development of civil rights and civil liberties in the United Kingdom, which in most respects is as free or more free than the United States is today. This is not an "England is better" diary. I am only pointing out that their lack of a written Constitution did nothing to inhibit the development of civil rights and civil liberties there. Slavery was abolished in Great Britain in 1833 by the Slavery Abolition Act, a full 32 years before the Thirteenth Amendment, and 30 years before the Emancipation Procolamation. This is giving them a handicap for their empire, since slavery within England was made illegal in 1772.[a]
If it wasn't a written Constitution, what moved Parliament to act so much sooner?
British women initially gained the right to vote in 1918 and on the same terms as men in 1928. Again, the UK either beat the U.S., or, depending on how you look at it, essentially tied. (U.S. Const. Amend. XIX (1920).)
The English Constitution certainly exists, certainly provides for certain rights, and certainly has its flaws. But inasmuch as one of its planks is the Supremacy of Parliament, there's nothing in it, therefore, that compelled the liberalizing enactments of Parliament. These were done due to public pressure, intellectual pressure, by overt acts of people demonstrating against their oppression. This is exactly the same in the United States. Using the language of the U.S. Constitution as viewed by one group as an ex post justification for new laws is not only intellectually dishonest, it gives people a false sense of security. One day, "Justice" will prevail—it's in the Constitution! This is a dangerous, complacent concept. It must be rejected.
British law provides a good basis of comparison because most basic state law derived from English law and many provisions in the Constitution simply establish the Whiggish version of English law.[1] This was the system set out most comprehensively by Blackstone.[2] Blackstone viewed the English common law as a product of modern progress coupled with the ancient traditions of England that was based on reason.[3] The most essential difference between the American and English constitutions is that Congress is not "supreme." Congress's powers are limited by what the Constitution says. Parliament, on the other hand, is the wielder of all of England's sovereignty [4] (Parliament nominally includes the Sovereign, who must give the "Royal Assent," which was last withheld in 1708 by Queen Anne). In theory, the "people" are the ultimate sovereign under the U.S Constitution (U.S. Const. Amends. IX, X.); in reality, the Constitution is subject to change by Congress and state legislatures, not by referendum. (U.S. Const. Art. V.) Even a new Constitutional convention requires the assent of 3/4ths of the states. (Ibid.) No amendment can take away a state's representation in the Senate without its "consent." (Ibid.)
The Founders were steeped in the emerging science of the times. [5]
Those who claim that they have found evidence for the influence of Newtonian science in the Constitution usually concentrate on three or four topics or themes. These include, first and foremost, the separation of powers and the allied notion of an equilibrium produced by the complexity of checks and balances. Second is the notion that the constitutional form of government resembles a Newtonian machine, in particular, what is often known as the Newtonian world-machine. The balance and equilibrium of constitutional government is thus seen as having been modeled on Newtonian physics and the Newtonian system of the world. In addition, there is the mystique of Newtonian mechanics and/or the Newtonian system of the world as the inspiration for a system of rational politics, as the example proving how countervailing forces can act to produce harmony, or even as proof of the benefits of democratic or republican government.
(Cohen. p. 244.)
Isaac Newton described the solar system as a finely tuned machine, governed by the law of gravity, describable and reducible to those laws.
The six primary Planets are revolv'd about the Sun, in circles concentric with the Sun, and with motions directed towards the same parts and almost in the same plan. Ten Moons are revolv'd about the Earth, Jupiter and Saturn, in circles concentric with them, with the same direction of motion, and nearly in the planes of the orbits of those Planets. But it is not to be conceived that mere mechanical causes could give birth to so many regular motions: since the Comets range over all parts of the heavens, in very eccentric orbits. For by that kind of motion they pass easily through the orbits of the Planets, and with great rapidity; and in their aphelions, where they move the slowest, and are detain'd the longest, they recede to the greatest distances from each other, and thence suffer the least disturbance from their mutual attractions. This most beautiful System of the Sun, Planets, and Comets, could only proceed from the counsel and dominion of an intelligent and powerful being. And if the fixed Stars are the centers of other like systems, these, being form'd by the like wise counsel, must be all subject to the dominion of One; especially since the light of the fixed Stars is of the same nature with the light of the Sun, and from every system light passes into all the other systems. And lest the systems of the fixed Stars should, by their gravity, fall on each other mutually, he hath placed those Systems at immense distances from one another.
(Newton, I. General Scholium.)
Similarly, the Founders approached the principles of government as reducible to science and looked to history and the various other forms of government in creating the U.S. Constitution.
What they were trying to produce was something like the Swiss watch of government. They certainly were not intent on creating a government with universal suffrage. Indeed, the Constitution reflects a contempt for democracy almost equivalent to its contempt for monarchy.
James Madison wrote:
Democracy is the most vile form of government... democracies have ever been spectacles of turbulence and contention: have ever been found incompatible with personal security or the rights of property: and have in general been as short in their lives as they have been violent in their deaths.
(Federalist No. 10.)
The representative democracy that the Constitution establishes was neither the democracy of Athens nor the tyranny of Sparta. It was also not the Caeseropapacy of the Byzantine Empire of the Caliphates (or the British Empire). (U.S. Const. Art. IV, §4; U.S. Const. Amend. I.)
Unlike the solar system, the Constitution was tempered by practical concerns. If representative government divided into three coequal parts with all the attendant checks and balances was supposed to match the elegance of the law of gravity, other parts of the Constitution were less like transcendental laws and more like the sausage factory of current legislation. States were given representation in the Senate without respect to their population, but merely as a compromise for the concessions of sovereignty they might have.[6] The Senate could have easily been the elitist, molasses-like "deliberative" body that it is today without appointments relating to states. But the bicameral model was on the elegant side compared with the Faustian bargains that the Constitution made regarding slavery.[7] Slavery was allowed to continue, despite the words on the page decrying all men equal. Slaves were three-fifths of a person, simultaneously excluding them from the body politic while putting the finger on the scale in favor of their masters. The outlawing of the slave trade was delayed for 20 years (after which it was lightly enforced). The issue of escaped slaves was left for another day.
The slave trade was a major source of disagreement at the Constitutional Convention of 1787. South Carolina’s delegates were determined to protect slavery, and they had a powerful impact on the final document. They originated the three-fifths clause (giving the South extra representation in Congress by counting part of its slave population) and threatened disunion if the slave trade were banned, as other states demanded.
The result was a compromise barring Congress from prohibiting the importation of slaves until 1808. Some Anti-Federalists, as opponents of ratification were called, cited the slave trade clause as a reason why the Constitution should be rejected, claiming it brought shame upon the new nation.
(Foner, Eric. "Forgotten Step Toward Freedom" New York Times Dec. 30, 2007.)
Slavery was tolerated. Indians were outsiders—their only relevance was as a source of future expansion. Indeed, one of the many motivating factors behind the American Revolution was Great Britain's treaty with the Indians that limited colonial settlements to the line along the crest of the Appalachians, the Proclamation of 1763. Women aren't mentioned at all.
Therefore, to suggest that the Constitution as original conceived was an inspired charter of freedom is absurd. When we say "Constitution" what we mean, perhaps, are the ideal we see embodied in it. We are probably talking about the rights and liberties it grants to insiders, and idealize the grant of those rights and liberties to everyone. Maybe we see the quasi-Newtonian genius behind some of it; but that doesn't mean it's there.
What about the Post-Civil War Amendments?
Some of the most idealistic language in the Constitution is contained in the 13th, 14th, and 15th amendments. However, it is worth pointing out that these laws still treat Indians as outsiders. (No representation for "Indians not taxed.") These amendments reflect (they themselves did not cause) a restructuring of American federalism. The sovereignty of the states was limited. Dred Scott was overruled. Blacks could—in theory—vote. It didn't take long for the Supreme Court to limit their effect. Despite this seemingly unrestricted language:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The Supreme Court held in The Civil Rights Cases, 109 U.S. 3 (1883), that Congress lacked the authority under U.S. Const. Amend. XIV § 5 to enact laws regulating private individuals and corporations. For this reason, the Civil Rights Act of 1964 was sustained under the Commerce Clause! (Katzenback v. McClung 379 U.S. 294; Heart of Atlanta Motel, Inc. v. U. S. 379 U.S. 241 (1964); (1964) [sustaining Title II under the Commerce clause]; but see Concurrence of William O. Douglas, 379 U.S. at 280 ["I would prefer to rest on the assertion of legislative power contained in § 5 of the Fourteenth Amendment"].) This limited view of Section 5 was upheld as recently as 2000![8]
In fact, what arguing Constitutional law does is creates an entire debate predicated on process instead of substance. Whether or not something is Constitutional becomes the question. Our moral compass is abandoned. It's hidden, cloaked in Constitutional justifications. Your arguments against torture do not require the Eighth Amendment to be correct. Indeed, their correctness is the cause of the Eighth Amendment, not the other way around. For all of the brilliance of the many Constitutional scholars in the blogosphere and in the public debate, and for all of their more persuasive readings of many of the civil liberty provisions of the Constitution, I believe they simply give too much ground by even engaging in a legal argument. I also believe they are, perhaps, buying a little bit too much into the Lies My Teacher Told Me about the progressive, forward-moving inevitability in U.S. history. Progress in U.S. history always came through struggle. The included group was expanded through action, not through the magnetic pull of a document. (See esp. Zinn, H. A People's History of the United States.)
All of this is, to me, all that is required to not only undermine, but ridicule, the judicial philosophy of originalism. It also problematizes the notion of the "strict constructionist" judicial philosophy. Are you strictly construing the Fourteenth Amendment to read it literally and say it grants Congress a certain power? Activism, as distinguished from a certain judicial philosophy, got its bad name among liberals in the Lochner era, and among conservatives in the Warren Court era. Certainly, a body that is guaranteed to include members of the Establishment like the Supreme Court (even if it is racially, religiously, and sexually somewhat diverse) should probably not have too much power. The difference in those who see the Constitution as a beacon of liberty is to use the judicial power to enforce minority rights. The other anti-activist rationale deals with overturning acts of Congress. Justice Breyer's Active Liberty strikes a nice balance on these issues.
But I think the protection of rights by the Supreme Court that occurred between the 1930s and the 1970s was an anomaly, and it should not be relied upon. Would Roe v. Wade have been necessary if Congress was comprised of 50% women? Would the Civil Rights Act of 1964 been required if Congress was 10% black and the legacy of slavery had been appropriately remedied during Reconstruction? I strongly doubt that Earl Warren and the Constitution descending from heaven will ever return to save us. Judge Sotomayor will help, but she is certainly part of the establishment.
No Court is ever going to rule that the Constitution requires the government to provide its citizens with health care. No court is ever going to completely foil the acts of a rogue president during an artificial "war" regardless of the shoddiness of his lawyers' Constitutional arithmetic. I would argue that Bush, Gonzales, Yoo, et al. were less worried about the Constitutionality of torture and illegal wiretapping than the political consequences of it. Those acts were not merely unconstitutional; they were wrong.
The unwritten Constitution of the UK served as fertile ground for the development of Civil Liberties and Civil Rights. This was done through democratic pressure, not Court rulings. In our country, our salvation doesn't lie in the Constitution. It lies in the activism of people demanding what's right.
That's why this is actually a health care diary. I want you to get active about health care. I want you to write letter and make phone calls like you were last year. Electing Obama and more Democrats isn't enough. Those people represent us, but only in a very attenuated way. They will only give us what we take.
NOTES:
[*] I agree with commenter Jay Elias that this was not the fault of the Constitution in the sense that the Constitution, as a collection of words, did not cause the Dred Scott decision. The power structure did. But this abomination was only taken away by the concerted action of abolitionists, not legal scholars or courts.
[a] To be fair, some states banned slavery and enfranchised women before the U.S. Constitution did. This is not a diary about the history of state constitutions, however. It is a commentary on the U.S. Constitution and its purported strengths. Women first had state-wide voting in New Jersey in 1797, but it was revoked. No state granted women the vote permanently before Wyoming came into the union in 1890. Slavery was outlawed in Vermont in 1777, 5 years after it was banned within England. That some states did better probably reflects the aspirations that Americans saw in the Constitution, which, I think reinforces the thesis of this diary, because they were compelled to act outside of the U.S. Constitution to enact its supposed ideals.
[1] See Wikipedia.
[2] See Wikipedia, citing Gareth Jones, 'Introduction' in Jones (ed.), The Sovereignty of the Law. Selections from Blackstone's Commentaries on the Laws of England (Macmillan, 1973. Blackstone's "political views were those of the Old Whigs and his ideals were those of the Glorious Revolution of 1688".
[3] Blackstone I. Introd. §3 ff.
[4] Blackstone, I ch. 2, III "[Parliament] hath sovereign and uncontrollable authority in making, confirming, enlarging, reftraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal." Compare U.S. Const. Art. II. ostensibly limiting the power of Congress. See also Wickard v. Filburn 317 U.S. 111, 121 (1942) [granting virtually unlimited power to Congress through the commerce clause]; later limited by U.S. v. Lopez 514 U.S. 549 (1995) , but more or less restored by a Trojan Horse planted by 9th Circuit liberal lion Harry Pregerson in Gonzales v. Raich 545 U.S. 1 (2005). The Conservative U.S. Supremes decided limiting Congress's power was bad when it Congress was passing Conservative laws, here laws banning medical marijuana, but good when Congress was passing liberal legislation like the Gun-Free Schools Act or the Violence Against Women Act.
[5] I. Bernard Cohen, Science and the Founding Fathers.]
[6] "The Connecticut Compromise." See Wikipedia.
[7] Including the Three-Fifths Compromise.
[8] U.S. v. Morrison, 529 U.S. 598 (2000) [Congress lacks power to enact Violence Against Women Act under Section 5 of the 14th Amendment]. Arguably distinguishable on the grounds that the intent of the Fourteenth Amendment sought to remedy the problems of slavery, not of women. But this again shows the narrow world of Constitutional interpretation that exists in the legal elite.