Is It Time for a Constitutional Convention? Part One

I read a post by Daniel Marks in FDL discussing the current utter inability of Congress to govern the Government that was created as the product of the Constitutional Convention of 1787. It is an excellent rundown of the evidence showing that our Government is both dysfunctional and no longer operating for the benefit of us, the posterity of the people who wrote that document. They are the people we generally call the Founders. They attempted to create a republican government that would 'promote the general welfare, and secure the blessings of liberty to ourselves and our posterity” as solemnly promised by them in its Preamble.

I have lately and for the last several years wrestled with the thought that perhaps we need a constitutional convention to deal with specific issues that face us as a society operating in the fourth century since its adoption. I was concerned that a convention would open the flood gates to nonsensical ideas like making our government a theocracy, or creating classes of citizens, or restricting the burning of flags only to patriotic associations retiring tattered copies of it, or monkeying around with the franchise by authorizing literacy and wealth tests and the like and freezing and calcifying religious beliefs as to how society is organized into the Constitution. Those were scary thoughts to me, what if we were jumping from the frying pan into the fire? What if we ended up worse than before? After reading and thinking about Mr Marks' post I no longer have those fears. In this part of my analysis I am going to write about current issues of governance. What we can't get done and why we can't get it done. In the next I will put forth an analysis of what needs to be done in order to further the hopes and desires of the Founders and how we might as a nation go about doing what we decide has to be done to keep faith with the Founders, and to keep faith with ourselves and our fellow citizens.

The current Constitution became effective in 1789 and it wasn't much of a magna carta but it was the best that could be cobbled together at the time. It also was most definitely not a monumental work of democratic political theory. It was simply a broad outline with some basic requirements and built in bumps in the political road. The Founders were by no stretch of anyone's imagination democrats of any stripe. All but one of the Founders either were the owners of other human beings kidnapped and condemned to a life of slavery or had made fortunes in endeavors that supported slavery. Twenty percent of the people of this new nation were owned by some percentage of the other eighty percent! The Founders were definitely not democrats.

It created a bicameral national legislature it called a Congress and abandoned the unicameral legislature under the Articles of Confederation. This new legislature was composed of one house which was elected by the legislatures of the constituent states of the Union for six year terms. They called that the Senate. The other house they called the House of Representatives and it was elected 'popularly' by persons allowed to vote for the more numerous branch of their state legislatures. That generally meant males of European descent, who owned real property and who weren't themselves owned by other members of the society and who paid taxes. Seats were apportioned in this body according to the Three-Fifths Compromise. So basically if you weren't allowed to vote for your local legislative representative you were only 3/5^th of a human being for purposes of representation in the Congress. That was not very democratic at all.

The Constitution also created an officer called “President of the United States” and set out his qualifications and prescribed a special oath he must swear before he could undertake his duties. The new Constitution set out his duties and made him commander in chief not of Americans (as some people urge today)  but of our military forces. It also set out how he was to be elected. It created another body which we call the Electoral College. Each state had seats in this college equal to the state's total representation in Congress and stated that no sitting member of Congress need apply for a membership in this body. It left the 'chusing' of its members to the discretion of each state's legislature. Having done that it required that the college meet on the same day, a day prescribed by Congress, in each state capital. Essentially there were going to be thirteen separate meetings.There they would vote only once by indicating their choice for President. They then packaged up their ballots and sent them off by messenger to the senate. When Congress convened it would count the votes. The person with a majority of electoral votes would become president and his runner up became vice president. If no one received a majority each chamber would meet separately and the senate would elect a vice president and the house, each state having one vote, would select the President. When there is no requirement of popular elections for an office it can't really be said that it was a democratic election.

The history of constitutional law in this country is a steady march to democratize the government. Changes were made in the Electoral College by the Twelfth Amendment, the 3/5^th Compromise was repealed by the Fourteenth Amendment, slavery was ended by the Thirteenth, senators were directly elected by the Seventeenth , the franchise was broadened and enshrined in the Fifteenth Amendment which prevented states from denying the vote to persons on account or race or 'previous condition of servitude', women were given the right to vote by the Nineteenth in 1913 the year of the birth of my mother, poll taxes were outlawed by the Twenty-fourth in 1964

Fast forward to 2013 and where are we? We have a senate that requires a ten vote super majority in order to take a bathroom break. We have a house dominated by rural interests protected by something that has bothered us and been derided by pundits since the beginning of our history. We call it the “gerrymander” after Eldredge Gerry who was the fifth vice president of the US.

As a result, we have a Congress that recently  strained mightily in long hours of labor and gave birth only to a fraction of what's needed to fix our health care delivery system. Then that institution voted no fewer than 37 times to kill this 'child' that it gave birth to after much cajolery, poking and prodding and financial transactions between interested parties and entities associated with that Congress. I understand the speaker is going to bring it up again for another vote. Yet we have no budget. We squabble quarterly over how much debt we the people can incur and which of our bills we are going to pay. We have a polity where money is speech and speech is money and I have a right to drown out your speech with my money. We have a polity where fictitious entities are treated equally with 'we the people.' Congress has devised a scheme whereby people who make secret and anonymous donations to certain tax exempt 'social welfare' organizations can be safe and secure in the knowledge that their taxpayer-aided gift will benefit the candidate of the contributor and no one will ever be the wiser because the donor lists of those privileged groups are secret. We have a society in which every thought ever expressed by us and given voice by us via the telegram, telephone, television, social media, via the internet and all the devices it has spawned such as smart phones and the like are preserved forever in some data archive somewhere and available for instant retrieval and use by government entitles for whatever purpose, known or unknown to us. The Government in theory knows what movies you watch, what books you buy. What TV shows you watch. What emails you write. What your tastes in porno are even. It knows what you tell your congressman perhaps even what you tell your priest. There are even restrictions on the doctor-patient relationship enacted by the Patriot act in this new national security state. I am no longer convinced even that my communications with and from my law clients are protected to the extent they were only forty years ago in the early days of my career.

The Judiciary has not been exempt from the destruction wreaked by these changes to our political system. In an end run around the Warrant Clause of the Constitution the Congress in 1978 created an Article One court called the Foreign Intelligence Surveillance Court (FISC). It's has a very specific jurisdiction. And in a complete reversal of our practice since the founding of the country it is a secret court., our very first secret court. No one knows what cases are pending before it.  No one knows what relief the petitioner (which is always the Government or an agency of the Government) is asking for. No one knows who, if anyone, has physically appeared before the court. The petitions filed are secret. The arguments are secret. The evidence is secret and its final orders are secret. The FISC is staffed by sitting district court judges selected for six year terms by the Chief Justice of the US. No publicly accessible records are kept. Turnover orders are issued by the FISC and are completely secret and the persons or corporations receiving these orders are required by law to keep the fact they have been served with an order secret and and may not disclose its existence or contents to any person. In other words everything this court does is secret. We have entered upon an era in our history, both the good and the bad,  in which we are living under the oppression of secret laws made in total secrecy. That is the hallmark of tyrannical despots and of fascists and even of nazis.

Neither warrants nor the concept of probable cause is a concern of the FISC. Any judge of the court is required to issue the order requested if made by an appropriately titled government official who says there is an investigation pending related to national security provided that if the investigation is of a “United States person” it is not 'conducted solely upon' activities protected by the First Amendment. Simply put the Government may investigate you and obtain secret orders based on your exercise of  your First Amendment liberties provided there is at least one other ground for investigation other than your exercise of those liberties. This is a truly nugatory guarantee and it means that the FISC is simply a rubber stamp on a decision already made by an unknown and unquestioned government official. All of this is contained in the Patriot Act enacted after the attacks of September 11, 2001.

The problems outlined above are some of the pressing issues of our political history and they are intermixed with other problems the Nation faces such as climate change, tax burdens, constant warfare and the ever present burden of poverty, hunger and the lack of adequate access to health care, mental health care and access to justice in our society. We must also deal with the biggest problem we as a society have the inescapable fact that our governance is controlled not by us but by corporations and money. We have to decide what it is that we want the Government to deal with and how best to ensure that those ends are met These are some of the problems we as Americans face in the Twenty-first Century. Our task is to decide  how we will  address them. Addressing these core issues in our society demands that we continue to democratize our Constitution and our society.