OUR CONSTITUTION

OUR CONSTITUTION

By

Fay E.A. Reid

Several Justices sitting on the current Supreme Court claim to be strict constructionists. But they lack the understanding to be truly strict constructionists. In 1787, when our Constitution was adopted. The gentlemen who wrote it were brilliant.  They decided they were not writing a collection of laws to govern men in 1787. They decided to write a “Living Document” a group of laws that could be changed (Amended) to suit the needs of tomorrow and many tomorrows to come. Compare this to the Magna Carta of 1215. That document was written to control an autocratic king and force him to confer with his landed subordinates. The Magna Carta also has a bunch of regulations that have nothing to do with law, like establishing measurements, and civil disputes.  It made no allowances for 1515, or 2215.

Article V. AMENDMENTS of the Constitution of the United States. “The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or. On application of the Legislatures or two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of the Constitution, when ratified by the Legislatures of three-fourths of the several States, or by conventions in three-fourths of thereof, as one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent shall be deprived of its equal suffrage in the Senate.”

This specificity definitely shows they expected this Constitution to change as the times changed. Life styles, beliefs, truisms in 1787 do not align, and frequently don’t resemble life styles, beliefs, truisms of 2023, In 1787 there was no railway, no airplanes, no motorized vehicles, no telegraphs, telephones, radios, TVs, Computers, Internet, and no smart phones. So, nothing resembling them appears in the Constitution. The first railway in the United States was built in 1827. Communication was by hand written letter sent by post. If you were really fortunate a letter sent from Washington DC to Aunt Martha in Boston might reach her in two or three months. Transportation, in the late 18^th, early 19^th Centuries, would include ships, horses, carriages, wagons and feet.  The concern would be waterways, roads, streets, and lanes. Street cars (pulled by horses began to appear early in the 1820’s but it was nearly the end of the 19^th century before motorized street cars appeared

In 1787 women were considered chattel, less valuable than a slave, on a par with dogs and horses. Females were the sole property of their fathers, then husbands, in the absence of either of those, brothers, uncles or grandfathers could lay claim. Women were not allowed to hold property in their own name and they didn’t even have control of their own children. Naturally, the Constitution, being written by ‘upper-class’ men of the time it would never have occurred to them to mention women in the Constitution. In polite society not even pregnancy was mentioned, let alone abortion or miscarriage.

So, I am amazed at the intuition, intelligence of these men who negotiated and wrote the Constitution. While they couldn’t foresee the future, they certainly foresaw that it would change. Hence Article V

Another thing of which the Founders were keenly aware was fairness. Even in the late 18^th century the population was not evenly distributed. So, to help level the playing field they allotted two senators to every State, and each State, was guaranteed one Representative in the House of Representatives. Article 1, Section 2 paragraph 3 lays out how many Representatives each State would have after the census was taken. The first problem arose with the five Southern States. Although they didn’t recognize their slaves as human beings, nor were they willing to give these slaves any rights, such as voting. Nor did they want to pay taxes on them.  They did however want to count every slave in the population count. This caused a major problem, until a compromise was reached.  Each slave would be counted as three fifths of a human being, thus enhancing the population of the five southern States relative to the number of Representatives allotted in the House. [I sometimes wonder if we wouldn’t have been better off with just the 8 Northern States]. After that the Representatives were to have no more than 30,000 constituents. (If we were to follow this rule today, there would be 110,000 Representatives in the House – the size of a small city. The mean average representation in the 6 lowest population States is 771,792. If we round that up to 800,000 per representative that would give 412.5 Representatives. We have 435 so some States are cheating.  By the way, Washington, District of Columbia, while it is restricted in size to 10 miles by 10 miles, has a population larger than Vermont and Wyoming, the two States with the lowest populations, you can understand why DC residents are clamoring for Statehood. They are taxed, and denied representation in both Senate and House of Representatives.

The Constitution is mute on the subject: if these constituents, included women, children, bond servants, and slaves. Also excluded from apportionment, voting, or representation was the indigenous population (to whom the Constitution refers as “Indians”) on the grounds they were not taxed. [So, maybe we should exclude billionaires and Corporations from any services if they are not paying their share of the Federal tax burden based on wealth?]

Flash forward to the 21^st Century Supreme Court. They are strict constructionists they say. So, they want to return to the 18^th Century? They want to give up centralized heating and air conditioning? They want to give up their limousines and have their drivers take them to Court in horse-drawn carriages? No? They just want the law as written. Ok, so throw out Citizens United. Nowhere in the Constitution does it state or imply that a corporation is equivalent to a human being. The individuals running the corporation, may be human, however inhumane they may be. But as such, they were limited by current law at that time to $2500 per registered voter per candidate or PAC. I suppose they could have cheated and supplied the money they wanted to donate to each registered voter they employed, but at that time there were massive fines for that kind of cheating, there was also jail time on the books.

The other claim that money is speech would be laughable, if it wasn’t so disgusting. That $20 bill, sitting in my wallet hasn’t said a damned thing to me. It is an inert piece of paper which the Treasury department assures me is valued at $20 American. So long as I and the merchant to whom I proffer it agree to its value, then all is good in the world.

Which brings me to another Article and Amendment. Article 6 section 1, “All debts contracted and engagements entered into, before the adoption of the Constitution, shall be valid against the United States under this Constitution, as under the Confederation.” In other words, we, the United States of America, would pay all our debts from 1776, when we declared our Independence, and continuing through the present time.

Following the Civil War, the Legislative Branch reiterated Article 6 with Amendment 14, Section 4, with the exception, the Federal Government would not pay the debts of the insurrectionists. “The validity of the public debt of the United States, authorized by law, including debt incurred for payment of pensions and bounties for service in suppressing insurrection or rebellion, shall not be questioned. But neither the United States, nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.”

Not only is the so called ‘debt ceiling’ Unconstitutional, under Amendment 14 the Federal Government is not required to provide defense attorneys for those charged in the insurrection, we aren’t prohibited but we don’t have to.

Returning to the First Amendment and ‘Citizens United’. The attorneys for the corporations and wealthy individuals who brought this case forward to the Roberts’ Supreme Court stated their claim was based on First Amendment rights. ”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” I have bolded the text to emphasize the three separate parts of this Amendment.  That is all there is written in this Amendment, no sections nor other phrases. 

In 1787, many of these people were newly arrived from Europe. All had emigrated from Europe in the past two centuries.  At this time in History, most European countries were under some form of authoritarianism – monarchies, dictatorship, oligarchies. I don’t care. They weren’t democratic representative republics. That is why they and we, referred to the United States as the great American experiment. Through depressions, recessions, good times and bad, one civil war, numerous foreign wars, genocidal war against the indigenous people, we have survived. In May 2023 we are still a democratic, representative, republic. We may be in tatters, but we’re still holding together.

In Europe in the late 18^th, early 19^th centuries religion was a very big thing.  Many countries’ governments were based on a single religion. Mostly some adulterated form of Christianity, but the thing was, people who did not openly avow and practice the State religion were persecuted. The Huguenots in France, the Presbyterians. Methodists, Quakers, Roman Catholics in England to name a few.

Many of these religious followers had made their way to America. So, the first phrase of the first amendment emphasized freedom of religion. No religion was to be established as a State Religion. The current Court has six Catholics in the majority: Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, plus a liberal Catholic (Justice Sotomayor), a Jew (Justice Kagan), and a Protestant (Justice Ketanji Brown). In the past the Supreme Court was apolitical and neutral on all matters. So, no one cared what religion they practiced outside their job.  This was the general attitude across the United States. There was a slight blip when John F Kennedy ran for the Presidency. Several Republicans and news outlets were sure he would take his orders from Rome and confer with the Pope. To this day, religious bigotry remains alive and well.  I remember my father’s mother objected to my brothers’ choices in wives. She didn’t care that my youngest brother chose a beautiful Filipino, nor that my brother younger than me chose a French Canadian for his second wife. No, they were all Roman Catholics.  My mother and her sister absolutely freaked out when I explained I was an atheist, you’d have thought I had just robbed a bank!

Anyway, I am grateful for the First Amendment Freedom of (and from) religion.

The second phrase was the claim for Citizens United. Freedom of speech and press. Again, referring to Europe at that time, and to all authoritarian regimes in the world today. Politicians in opposition to the incumbent are arrested, killed, maimed. Sometimes even their families are jailed in remote places (Siberia, comes to mind) This is now more common in Asian and Euro-Asian countries like Russia. Newspapers are destroyed, their publishers and reporters incarcerated and/or killed. Our Founding Fathers wanted none of that.  Opposition wasn’t welcomed, but it was debated both in and out of the press. Even today, no one has been imprisoned for lying, not even the trumpster or de santis.  I’m not sure if we are just following the law, or letting them get away for stealing the farm. Guess we’ll have to just wait and see.

Finally, the third phrase. The freedom to peaceably assemble. We saw this travesty, on television for most of us. Fortunately, corporate media (except for Murdoch) still allowed truthful reporting at that time. We saw the trumpster order a crowd of peaceful protesters be gassed, so he could walk, unhampered, to a church, where he wasn’t invited and wave a bible around.

We also saw renegade police officers attack and occasionally kill unarmed, peaceful protesters.

Then, came the ultimate horror, a large gang of armed thugs, breaking into OUR Capitol Building, desecrating it, injuring police officers, smashing priceless artifacts. Because the scummiest president ever, asked them to do so.

Where the Roberts’ Court ever cooked up their rationale for Citizens United, I’ll never understand.  That the decision was accepted, I sort of understand. Since 1787 we have honored and agreed the Supreme Court would always uphold the Constitution above all else. The Supreme Court was given the final say on the Constitutionality of laws, written in Congress and signed into law by the President. The Supreme Court had the final say in Court cases that were appealed and made their way through the lower Courts. They were NOT given the right to reinterpret the Constitution according to their political or religious beliefs. The worst thing John Roberts, and the gang of six have done, is caused us to lose that faith we had for more than 200 years that the Supreme Court was incorruptible. No matter, which lower court judge was on the take, the Supreme Court was way above it.  All of us did not always agree with their findings, but we accepted the finding, because we believed they were JUST.

Roe v Wade. Amendment X says, in essence, anything not given to the Federal Government or prohibited from the States belong to the States or the people. The Supreme Court made the correct decision, based on the Constitution. Abortion isn’t mentioned in the Constitution, therefor it falls in the realm of States or people. In my opinion, there should be NO LAWS concerning abortion. It is a medical procedure and a medical term. In medical terminology, abortion means ending a pregnancy before parturition. In that regard, what the lay public call a miscarriage, medical profession calls a spontaneous abortion. If we have laws regarding abortion, then we should have laws regarding organ transplants, open heart surgery, kidney dialysis, vasectomies.  Of course, we don’t. Aside from medical practice, especially malpractice we pretty much leave it up to doctor/patient decisions as we should. If some religion wants to poke its nose into the practices of its parishioners, so long as they confine their poking to their own people, I don’t care – just don’t try to force your beliefs on others.

Several States, on the overturning of Roe v Wade, changed their own Constitutions to allow and protect women’s rights including abortion. Kansas got at it in reverse, the people did not allow their extremist government to add a law preventing abortion. There will be a few dimwitted State assemblies who will hold out, Florida, for one. Texas for a while. But times they are a‘Changin’ in Texas, the larger cities have already turned blue and it won’t be long before Texas becomes at least purple.

Protecting children is another matter completely, and so very complex, it is difficult to pass generalized laws. Children need to be protected from cruelty, including, but not limited to, emotional, mental, physical, and sexual abuse.  But this is more on a case-by-case basis. Which brings up transgender. Fact, a few children are born with the wrong organs for their gender. Even fewer are born with both male and female organs. From my very, limited understanding, this usually doesn’t create a problem until puberty, when the hormones kick in but, they are out of place with the child’s birth gender.  We have to protect children from mentally imbalanced parents who wanted a son and got a daughter, or vice versa.  I am still of the opinion this is best left to a doctor/patient determination.

The debt ceiling too, will end. It is not Constitutional. The Democratic House of Representatives from 2021 to 2023 should have gotten rid of it.  I think President Biden could end it this term with an executive order, the House, as currently composed, has not the numbers to oppose this. Then if we regain control in 2024, we must end this forever and throw it on the dung heap of bad laws.

There are some changes in the past 246 years that are too great to leave the Constitution as written. One of the more glaring, Article 2, section 3. details the Electoral College. First, a little more background: The Founding Fathers were a pretty homogeneous bunch. They were male, white, originally European, well educated for the times, wealthy, mostly land owners, some, from Maryland, Virginia, North and South Carolina, and Georgia, were also slave owners. Those from the 8 Northern States, were men of business, law. Medicine. Not quite as socially conservative as their brethren from the South. But, north or south, they all distrusted the working class, most of whom were semi-literate at best, totally illiterate at worst. But even in 1787, these people were the majority of citizens. Therefor the fear of the “tyranny of the majority”. Which brought on the Electoral College.

Well, we no longer need to fear the ‘tyranny of the majority’. We now have universal voting rights (at least we are supposed to have). We can thrash out differences of opinion in debate, compromise. No, the majority is quite controllable. Now, we suffer from ‘tyranny of the minority’.  Because of the Electoral College and the tyrannical tendencies of some States that are cheating.  By the way, Washington, District of Columbia, while it is restricted in size to 10 miles by 10 miles, has a population larger than Vermont and Wyoming, the two States with the lowest populations, you can understand why DC residents are clamoring for Statehood. They are taxed, and denied representation in both Senate and House of Representatives.

Another problem with which we may be stuck forever is the last phrase in Article 5 on Amendments: “and that no State, without its consent shall be deprived of its equal suffrage in the Senate.” This is the 2 Senators guaranteed to each and every State. The Framers of the Constitution saw this as fair representation so the States with larger populations couldn’t overwhelm the other States.  That was fine so long as ALL Americans believed in the democratic Representative Republic we founded. Those worthy gentlemen could not conceive of the authoritarian, would-be dictators of the trump party. They aren’t huge. But they are loud. And, to our chagrin they have convinced a lot (not huge) population of semi-literate, mostly white citizens that they are the answer to their prayers for acceptance and dignity. (They don’t realize their own loutish behavior is the cause of the disrespect.)  Additionally, these authoritarian creeps have the full backing and financial support of the greedy oligarchy, which now seem to include all mainstream media. I both love and respect the Constitution, Therefor I don’t wish to change it drastically, by changing Article 1, Section 3, or Article 5.

Two possibilities would be an active campaign of contacting every single member of the Legislative branch either individually or by petition, to admit Washington, DC, as a State.  We could do the same for Puerto Rico, if their citizens want it. The other would be to expand the membership in the House of Representatives to no more than 1000. I believe this number is still manageable.  We could do it piecemeal, over ten or more years. The end objective would be to once again approach one voter, one vote. I doubt we’ll ever achieve that, but at least we’d have a better balance.

We should also latch on the work around the Electoral College already in progress. Robert Reich and Inequality Media have that ball rolling (please support)

Finally, the 28^th Amendment ERA Women’s Rights would have had its 38^th ratification from, the State of Virginia in 2020 before the elections. Women make up at least half of the American population, it’s time for the male population to admit we are human and give us the right to be recognized as such.  I think we need to start a new petition for ratification since it has been 50 years and the original Amendment no longer is valid. We should keep it simple, something to the effect that Homo Sapiens Citizens of any gender have the right to equal recognition and equal treatment under the Laws of the Constitution and the States.

Thank you to all my readers for reading this rather long tract.

Fay