One of the subjects that frequently comes up in discussion during difficult times is whether the United States Constitution should be put to rest in order to replace it with a new one. A second Constitutional Convention would be convened for the explicit purpose of making the American Constitution fit into the modern world, certain people say, removing many of the ambiguities that have never been resolved.
I believe there are three major areas of discontent when it comes to the United States Constitution, each of which has its share of liberals and conservatives as proponents and detractors.
First of all, it is contended that the American presidency is out of hand to the point of criminality. One of the reasons for this is the apparent impossibility of removal. If President Bill Clinton could not be removed, some people insist, it must be an impossible task. Liberals ranted and raved about the “unconstitutional” and “downright criminal” double-dealing of President George W. Bush and Vice-President Dick Cheney from 2000 to 2008, but when push came to shove the current Obama administration chose to leave Bush and Cheney alone. No charges or investigations to appease the radical leftist base. Why? The answer is simple: So President Obama would likewise be left alone to sign executive orders, bomb countries, torture people, and kill American citizens at will.
The solution to this is supposed to be writing a constitution that places the presidency closer to the parliamentary system where he or she is subject to the power of Congress much more directly. Some, like the famous writer Gore Vidal, have advocated this for years. (I saw him make the case for this on a TV talk show in the early 1980’s.) Because the president is elected in a separate election, the president scoffs at the ability of Congress to contain him. Look, for example, at how Barack Obama overtly stated his intention to bypass Congress to institute student loan reforms.
Secondly, Article 1, Section 8 of the U.S. Constitution–laying out the 17 enumerated powers granted to the federal government–has been perverted beyond recognition and is no longer viable. The specific powers relegated to the states need to be specifically enumerated, along with the federal powers. Since the government bodies do not understand what they are supposed to do, they end up doing whatever they want. The American people ultimately let their politicians go because they do not care if the Constitution is violated as long as they get their entitlements. Everybody hates Congress, but hey — their guy is just fine.
Third and last is the contention that the Supreme Court of the United States has become a tragic failure. No one truly understands their logic or perception of the law except, of course, a Professor Emeritus in Law in Los Angeles, California who has taken Vitamin C and a hit of LSD for the last fifty years with a bowl of granola at breakfast every morning, or a scholar of Medieval Studies in New York City who specializes in the ontological nature of non-existent being in the light of Greek phenomenology and hermeneutics.
In short, the Supreme Court is so contradictory and confusing it can no longer claim it has the capacity to guide America on the meaning of the Constitution. The average, non-law-trained citizen would have a better chance of understanding a lecture from a physics professor on mathematical formulas in fourteen dimensions in order to determine the position of electrons in a parallel universe than read a Supreme Court decision. This is why the national news shows require an “expert” to explain it to the average lost soul. And, more often than not, that expert is wrong.
In the end, however, the ultimate reason that many cite to reject the Constitution is that no one believes in natural rights or common law any longer. Common law had been one of the foundations of American jurisprudence; now, lawyers tell me that it is on the way out. A demonstration of this is in marriage. “Common law” marriages have been outlawed in many states. In that, the courts now believe they have the power to decide what a marriage is. When common law marriage was accepted, gay marriage did not exist. Now that common law marriage is gone for the most part, gay marriage does exist.
Natural rights theory taught that we get our rights from God. For many people, this is no longer viable. Many, especially those on the left, believe that rights are bestowed by the government. Even some on the right who purport to support the notion of natural law believe this way — I once heard conservative leader Sarah Palin say that terrorists do not deserve the same rights as an American citizen. While that notion is certainly worthy of later debate, only someone who believed that rights were bestowed by government and not God could essentially argue for the selective revocation of said rights. In fairness, the most vehement defender of natural rights are conservatives, but that appears to be waning, and a lot of liberals have always wanted to chuck them.
Do I think there will be a constitutional convention anytime soon? No. But when it is mentioned as a possibility, there seems to be less outrage at the idea than there used to be.