The Malleable US Constitution

The US Constitution, supposedly born in a democratic struggle against empire, can be manipulated to serve plutocracy and imperialism. Its many silences and ambiguities enable today’s shocking domestic and international politics. This is not to deny that it was a great achievement, provided one accepts the premises that 1) a strong national state was desirable, rather than a continuation of the confederacy or an even looser format; 2) the basis for a national (export) economy would be slavery; and 3) territorial expansion was a legitimate and important goal of the new union (whether or not the indigenous or settler inhabitants consented to be incorporated).

Two aspects were remarkable. First, a workable constitution was quickly created. Today, many groups are still debating mission statements and by-laws years after their organizations have ceased to exist. Second, it was an expression of the Enlightenment belief that institutions could be created by humans to serve human needs. Nowadays, despite our formally well-educated population, enlightened attitudes are in recession. Most believe that we cannot alter the capitalist economic system that God has bestowed upon us, or the marriage/family system that all history has proven to be “the best thing,” despite the dysfunctionality of these institutions.

Furthermore, the framers knew that the constitution was an experiment. They expected it to be frequently amended and regularly replaced, unlike the Ten Commandments carved in stone. Nevertheless, a population that mostly wouldn’t deign to use a 5 year old VCR (do normal people still use VCRs?) considers our constitution sacrosanct, the eternal expression of perfect political technology.

What are some of these silences and ambiguities that are of particular contemporary relevance?

1. Can states withdraw?

Whether a state that has joined the union may withdraw has not been answered definitively. Some would say that the Civil War resolved that matter, but only for those who believe that might makes right. The spirit of contract law, which hovered over our nation’s creation, suggests that parties may opt out. Perhaps a penalty would be assessed, e.g., a state may have to return HUD grants, buy the post offices, and forego the missile shield. We tend to think that the South was wrong on the withdrawal issue because we regard slavery as an abomination. However, what about Vermont, where a secession movement is now brewing for quite different reasons?

2. Who or what is to enforce the Constitution?

The Constitution doesn’t specify which institution is to interpret and enforce it. The Supreme Court soon asserted that it was the one, and across time immemorial (not a Enlightenment approach for conferring legitimacy) most have assented. Paradoxically, the proclamation of this enormous power was a by-product in a case (Marbury v. Madison) where the Court ruled that Congress couldn’t legislate an itty-bitty extra power for the Court (a writ of mandamus) because it wasn’t written in the Constitution. Court decisions following politics rather than logic were as common in Chief Justice John Marshall’s day as they are in ours; there was no golden age. People often ignore the contradictions and forced interpretations because they like the result, but when the outcome offends they bewail decisions that are just as political.

Those who argue that the Supreme Court should be the sole interpreter are faced with several problems. Executive or legislative actions, however questionable, don’t come before the Court unless they evolve from a criminal or civil law case. Although many are concocted for the purpose, some are difficult to shove into this mold. Those involving violations of international law are likely to be thrown out by a lower court, or rejected by the Supreme Court. There is little constitutional compulsion to resolve problems, however enormous. All treaties are included in “the Supreme law of the land,” yet it is hit or miss whether they are enforced, even though state court judges are stated to be “bound thereby” (also to the US Constitution and federal laws).

The requirements of “standing” (right to initiate a case), jurisdiction, pertinence, etc., prevent issues from getting into or very far in the system. Thus, when a conservative Republican Congressperson tried to challenge Clinton’s war on Yugoslavia, on the grounds that Congress had denied a declaration of war, the U S Circuit Court said there was no case, because, among other reasons, Clinton didn’t usurp Congressional power to declare war, he just made war (Campbell v. Clinton).

It is important for captured persons to obtain Constitutional rights to due process, but when the whole war is illegal, the Court is not much help. Indeed, all wars (and threats of war) are illegal according to the United Nations Charter, a treaty ratified by the US. Yet the US Constitution still provides for war to be declared, although it is a formality rarely observed.

When Congress or the President assert a right to interpret the Constitution, they have a leg to stand on; the Supreme Court is also self-selected. States also have a reasonable claim, especially since the Supreme Court is the institution with the fewest connections to citizens or localities.

3. What powers does the President have?

Does “executive power” include the prerogative? Several powers granted in Article II imply that he/she is to be an elected king/queen, and Congress has lavishly support the additional balls and palace establishment. Kings and queens in the bad old world enjoyed a prerogative-the right to take any action (when they decided there was an urgent necessity) without prior legislation or consent of the legislative branch. Presidents have often done just that (notably Lincoln), even though there is a constitutional provision for them to convene Congress on extraordinary occasions, and Congress has always been willing and able.

Presidents have administrative duties in foreign affairs, but are they to decide foreign policy? There is no such grant, and it would seem that policy-making is entirely a legislative function. Many in Congress deemed George Washington’s Neutrality Proclamation a usurpation, yet thereafter presidential foreign policy making was rarely challenged.

Presidents have used their ceremonial function of “receiving ambassadors” to deny recognition to de facto governments, which are considered legitimate by international law. Now covert action facilitates presidential control over foreign policy, often for activities that violate the UN Charter and our laws. It is reasonable to assume that Congress has ceded its power because it doesn’t want to know what the US is doing.

The role of Commander in chief is modeled after that of the old kings (and George Washington) and presumably permits a president to lead a charge up San Juan Hill. But does it allow the Pres to make war; invade; bomb; or arm contras in Algeria, Afghanistan, Kosovo, Nicaragua, etc., if Congress has not declared war? Our courts usually dismiss attempts to resolve such questions.

4 How does one become a candidate and get elected?

Some demographic requirements are imposed on aspiring officeholders, but the Constitution does not say how one becomes a candidate, or what are fair ways to contest elections (originally decided by popular vote for House of Representatives, state legislatures for Senate, and electoral college for President and Vice-President). These are crucial matters if democracy is to be a reality. The old-boy network, well stocked with Freemasons and self-selected eminences, had been the recruiting ground for national politicians and constitution-writers up to that time. According to Aristotle, the ancient Greek political experience showed that elections favor rich and elegant types, including those able to buy instruction in spin. Democracy required selection by lot, whereby all citizens had an equal chance of serving in any office. Our Constitution-drafters were well versed in Greek political history, yet left the elite system intact. They also incorporated the states’ definitions of political rights. As in the great Athenian “democracy,” women were ineligible for office, but here, the native tribes were also excluded; in Athens, only natives could be citizens. Slaves and free blacks were also omitted from the concept: “all men are created equal.”

For a while, political parties provided some democratizing of both the selection and election processes, enabling low status white males to become representatives. Now, most candidates (except some wealthy self-financed ones) are sponsored by a combination of corporate, union, interest group, local business, and small amounts of political party funds. You can read the details for everyone, including unsuccessful candidates and minor parties, on www.opensecrets.org That’s who gets represented, and there is nothing unconstitutional about it.
5. What about the state-federal division of functions?

This was never clear cut, although the understanding was that the federal government would have only enumerated powers and the states would have the rest, unless prohibited. That meant that states would decide on their own civil right and liberties, including voting rights; education; health; welfare; safety; morals; religion; slavery; and business, labor, agricultural, and environmental regulation. The national government often oozed out of its enumerated powers, and the federal interstate commerce power led to many boundary disputes.

Amendments, especially the 14th, created a potential democratization of our system, but also ambiguity, which was used to the hilt by elites to prevent state regulation of business and labor. Even today, one can make a reasonable case that the “due process clause” doesn’t give the national government control over abortion law or school prayers. The matter of rights is a large one, and will be discussed in a future dispatch.

Because of its silences and ambiguities, the Constitution can be twisted by the powerful to serve their purposes. In addition, it can be completely ignored, as there is no compulsory enforcement. What will fix it? A radical reconstruction might help. It could not even begin unless there is a massive citizen education project, starting in kindergarten. How about creating a democracy (here) as a goal for the United States? That could be a focus of education, state and local government, and even reality shows. Perhaps some day democracy would trickle or spurt up, or maybe the Vermont project is the best recourse.

JOAN ROELOFS is a professor emerita of political science in Keene, NH. More information on this subject may be found in her Foundations and Public Policy: the Mask of Pluralism. Other books are Greening Cities: Building Just and Sustainable Communities, and a just-published translation of Victor Considerant’s Principes du socialisme: Manifeste de la démocratie au XIX siècle. Email: joan.roelofs@verizon.net

 

 

Joan Roelofs is Professor Emerita of Political Science, Keene State College, New Hampshire. She is the translator of Victor Considerant’s Principles of Socialism (Maisonneuve Press, 2006), and author of Foundations and Public Policy: The Mask of Pluralism (SUNY Press, 2003) and Greening Cities (Rowman and Littlefield, 1996) and translator, with Shawn P. Wilbur, of Charles Fourier’s anti-war fantasy, World War of Small Pastries, Autonomedia, 2015. Web site: www.joanroelofs.wordpress.com  Contact: joan.roelofs@myfairpoint.net

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