A brief firestorm erupted last month when Supreme Court Justice Ruth Bader Ginsburg declared in a television interview in Egypt that “I would not look to the United States Constitution if I were drafting a constitution in the year 2012.” Ginsburg urged Egyptians instead to emulate more recent legal documents, including the constitution of South Africa (1997), the Canadian Charter of Rights and Freedoms (1982) and the European Convention on Human Rights (1950).
Republican presidential candidates on the campaign trail were quick to seize on the Ginsburg words as yet another example of judicial elitism, or, worse still, as a sign of suspect loyalties. Former Pennsylvania Senator Rick Santorum, never one to shy away from playing fast and loose with the facts, slammed Ginsburg for “prefer[ring] the South African Constitution over the United States Constitution.”
Ginsburg’s comments lent new ammunition to former House Speaker Newt Gingrich’s war on the federal judiciary. The self-styled “smartest guy in the room” has already called for the wholesale elimination of the Ninth Circuit Court of Appeals, invoking Thomas Jefferson’s abolition of judgeships in his reorganization of the federal judiciary in 1802. Gingrich has also proposed hauling federal judges in front of Congress to make them answer for those decisions conservatives might find unpalatable. And if serving judges with subpoenas doesn’t rein in their “radically un-American” decisions, Gingrich suggests impeachment.
So much for that system of checks and balances established by the Constitution, a document Gingrich purports to hold “sacred.” And nevermind that the Constitution sanctions impeachment only in cases involving “Treason, Bribery, or other high Crimes and Misdemeanors.”
Gingrich’s blatant disregard for the Constitution has even attracted the criticism of ideological bedfellows. Conservative legal scholar and National Review columnist Ed Whelan called Gingrich’s proposal to abolish the Ninth Circuit “constitutionally unsound and politically foolish.” Former Attorney General Michael Mukasey, who served in the Bush administration, labeled Gingrich’s efforts “dangerous, ridiculous, totally irresponsible, outrageous, off the wall.”
On second thought, though, maybe Newt’s constitutional flippancy is warranted. As Justice Ginsburg’s comments suggest, the U.S. Constitution is more a relic of the 18th century than a workable plan for government in the 21st. A recent study conducted by David Law, a professor of law at Washington University in St. Louis, concluded that our Constitution’s global appeal has diminished markedly over the past half century. Fewer and fewer nations are modeling their own constitutions on the American version. Other constitutions, especially those highlighted by Ginsburg, explicitly protect basic human rights such as the right to sufficient food, healthcare and education. Lacking such basic provisions of fairness and justice, the U.S. Constitution risks becoming an anachronism in the constitutional landscape of the 21st century.
Like the former Speaker, I find the example of Jefferson to be particularly instructive on constitutional questions. Scarcely a year after the Constitution had been ratified by the states, Jefferson sent a letter to James Madison, the architect of the Constitution, asserting that “the earth belongs always to the living generation … Every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force and not of right.”
By Jefferson’s math, then, the U.S. is overdue by about two centuries. I’ll add my own voice to the growing chorus of academics, legal scholars, and armchair political commentators who have called for a second Constitutional Convention: our 224-year-old Constitution must be discarded in favor of one that enhances American democracy, affirms our commitment to basic human rights and increases government accountability and transparency.
Notable advocates of a second Constitutional Convention include Harvard Law professor Lawrence Lessig and University of Virginia political scientist Larry Sabato. The idea shouldn’t just find favor in the ivory tower, however. Well-informed citizens must ask the difficult question of whether our Constitution, in actual practice, serves the lofty goals of the document’s preamble: “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity…” The answer, it seems to me, is a resounding no.
Our union is far from perfect. Domestic tranquility is in short supply. The general welfare has hardly been promoted. Americans today feel acutely that their government is not responsive to their needs. Six out 10 Americans report that the nation is on the wrong track (a full 80 percent of Americans said the nation was on the wrong track in July as House Republicans threatened to shut down the government). A whopping 82 percent of Americans disapprove of the job Congress is doing. Supreme Court rulings like Citizens United have undermined faith in our democracy and opened political campaigns to a flood of corporate money.
A Constitution for the 21st century is desperately needed. Calling a Second Constitutional Convention through the action of at least 34 state legislatures, as provided by the current Constitution, would afford Americans an opportunity to discard the more embarrassing provisions of the document, including the clauses pertaining to slavery (there are many, including the fugitive slave clause, the three-fifths clause, and the Atlantic slave trade clause). In 2009, the incoming House Republican majority found these sections so disturbing they omitted them altogether when reading the Constitution on the floor of the chamber to mark the inaugural session of the 112th Congress.
The Second Amendment, a true artifact of the 18th century, should also be jettisoned. Contrary to the views of conservative justices on the Supreme Court, the amendment only protects the right to bear arms in conjunction with service in a well-regulated militia. While the Framers of the Constitution intended the Second Amendment to curb the arbitrary use of power by the federal government, not even a million gun-slinging Texans could hope to counter the power of the U.S. government today, backed in full force by the world’s largest nuclear arsenal. In light of this week’s tragic shootings at a high school in Ohio, it should be clear to any logical observer that the Second Amendment serves no meaningful purpose in the 21st century.
Like the constitutions of other civilized nations, the Second United States Constitution should contain explicit guarantees of equal protection under the law for all Americans. Discrimination should be prohibited on the grounds of race, gender, sexual orientation, disability, religion, language and ethnic origin. The Second Constitution should also guarantee Americans access to basic human rights including food, healthcare and education. A general right to privacy, already recognized by the Supreme Court, should also be included. And the provisions of the First Amendment protecting freedom of speech, religion, the press and assembly should be preserved.
To curb the power of the “imperial presidency” the Second Constitution should contain language similar to the War Powers Resolution, passed in 1973 by both houses of Congress but consistently ignored by the occupants of the Oval Office, most recently by President Barack Obama in his rush to war in Libya in March 2011. The War Powers Resolution requires the president to inform Congress of his decision to commit armed forces to foreign military action within 48 hours and prohibits those forces from remaining for more than 60 days without the explicit authorization of Congress. A constitutional requirement would prohibit presidents from flouting the power of the people’s representatives, in whose hands the decision to go to war rightfully belongs.
A Second Constitution should also eliminate the arcane Electoral College and provide for the direct election of the president. It is a travesty that the world’s wealthiest democracy should be represented by a candidate that the majority of Americans did not elect in the first place.
To restore Americans’ trust in their elected officials, a Second Constitution should minimize the corrupting influence of money in national elections by providing public funding for all campaigns. To prevent the kind of shameless electioneering we’ve witnessed since last spring in the Republican presidential primary, with candidates’ lies masquerading as truth (witness Mitt Romney’s repeated assertions that the president has gone all over the world “apologizing for America”), the Second Constitution should follow the example of every other modern democracy and limit presidential campaign season to a single months-long block every four years.
These changes represent only the tip of the iceberg. A Second Constitutional Convention would surely lead to even more innovative revisions by initiating a valuable public discourse about the nature of our democracy. As things stand now, our Constitution is woefully unequipped to deal with the problems of the twenty-first century. We the people deserve better.
Steven Sweeney can be reached at email@example.com.