Our Decrepit Constitution: The Courts
The executive branch quickly found ways to circumvent the rigid language of the new Constitution. Alexander Hamilton revealed that the federal government had implied powers not enumerated by the Constitution itself. Hamilton determined that among these implied powers was the ability to form a corporation, if the government found that it needed a corporation to fulfill its Constitutional duties. These implied powers exist in the interstices between the clauses explicitly granting powers to the government. According to Hamilton and his followers, the government did not need to follow the precise dictates of the Constitution, but could take actions that it felt were merely implied by the document.
The Framers themselves did not agree on such and important right as the right to free speech granted in the First Amendment. John Adams's administration passed the Alien and Sedition Acts (1798) which gave the administration the power to imprison and deport opponents to the policies of the president. Adams proposed these laws to attack the French during the Quasi War. Adams did not consider the law unconstitutional because the U.S. was fighting an enemy. Just ten years after the constitution was adopted, the president demanded extra-legal powers during wartime.
The Framers failed to recognize the importance of corporations in commerce and manufacture, since corporations were small and few. The Framers did not make any rules governing corporations or protecting citizens from injuries that corporations might cause. Injuries inflicted by corporations have had extensive repercussions in the country and these injuries have seldom been corrected by law. Fortunes made by manipulation of stock or monopolization have remained the property of the men who committed the crimes. Corporations that cause massive dislocation in unemployment and property devaluation seldom pay any penalty for their actions. The Constitution does not enumerate the powers and rights that might be granted to corporations that are different from those granted to individuals. The bill of rights for corporations is lacking.
The framers did not make allowances for a standing army. They instead decided to rely on militias, guaranteeing that people could keep and bear arms in the second amendment. Militias proved incapable of defending the country, however. The weakness of militias was proven in the revolutionary war, when militias broke ranks and ran from British regular soldiers at the Battle of Camden. Camden resulted in 1000 casualties and 1000 prisoners taken by British.
More evidence of the unreliability of militias followed. In response to the need for security, the federal government has built a huge arms industry around its military forces. Neither the forces, nor the industry were foreseen by the Framers. The Constitution should contain guidelines for government oversight of the military and rules for the regulation of the arms industry, which has become a potent force for military aggression and congressional corruption. The Second Amendment should have been repealed after militias ceased to be relevant to the defense of the nation, but instead has continued in force to the detriment of law enforcement and the security of the population.
Treason is the only crime defined in the Constitution. That definition was not clear in the decades after ratification. Chief Justice John Marshall acquitted Burr of treason on the grounds that Burr had committed no overt act, as required by the Constitution. Thomas Jefferson disagreed.
Other clauses deserve amplification. The Intellectual Property clause has been captured by the publishing industry as if it had been written to provide them a perpetual monopoly. The clause was too vague even at the time it was written, since there was already a specific idea of what a law governing patents and copyrights should look like. The Framers wanted to assure there could be laws written governing copyright and patent. They did not assure that those laws could not be abused in the future. On the contrary, the lack of specificity in this clause made its exploitation by corporations inevitatble. Corporations exist to make a profit. Monopolies are the surest source of profit, so every corporation seeks to become a monopoly. The Intellectual Property clause in the constitution apotheosizes an issue where debate is sorely needed. Corporations hav taken advantage of Intellectual Property being blessed by the constitution to act against the best interests of the country.
Here again, the Framers were more concerned with the rights of property owners (publishers and industrialists) than with those who toil with their hands (writers and inventors). They therefore left the terms of the law open for the property-owners to fill in as they see fit. The current intellectual property complex, like the military industrial complex, is a side effect of the Constitution. While the Constitution has created these profitable entities, it gives no guidance on regulating them.
The checks and balances imposed by the Constitution are all intended to thwart the will of the majority, which Madison called the majority faction. The bicameral legislature sets up a smaller, more prestigious Senate which is intended to represent minority interests of property owners and the elite. The U.S. Senate has evolved into the kind of body the Framers intended. It is filled with rich, famous, and powerful people. The Senate provides a strong check to the lower house, which tends to be more representative of the common people, although its members are also well-off.
The presidency has veto power over the legislature, providing another check on the power of the majority. The judiciary provides yet another check.
The judiciary has always been a politicized body, since John Marshall imposed his federalist views on Republican administrations. Bush v. Gore, Dredd Scott, and Citizens United were all highly polarized decisions decided along party lines. The Supreme Court was acting in these cases as the last line of defense against a majority faction. The Court is thus a legislative body in itself, the third legislative body set up by the Constitution. The Supreme Court is the least democratic of the legislative bodies. Its nine unelected members serve life terms. Even the College of Cardinals of the Catholic Church is more democratic because it has more members so more viewpoints may be represented.
John Marshall has been praised for establishing the Supreme Court as a respected body. In the last 30 years, the court has lost a great deal of its prestige. The Court has handed down politically charged decisions like Citizens United, Bush v. Gore and Jones v. Clinton. Important decisions are made along strict party lines. The Framers envisioned the Supreme Court as a neutral body where decisions would be made by respected jurists after careful deliberation. Instead we see a court where decisions are made with no deliberation at all. Opinions have become mere formalities tacked tacked onto decisions made by political hacks. Jurists are chosen for the court, not in recognition of their legal stature, but by their ability to hew the party line and by their youth. Politicians who wish to control the court far into the future pick young judges to help them perpetuate a political philosophy. These judges are too young to have distinguished for their wisdom or scholarship, but the political parties are looking for people who will follow their leaders. This practice is reminiscent of the Soviet aparatchiks, functionaries who never made a move without checking first with their political leaders.
Large corporations grow stale. They become unable to adopt new methods of business, even when adopting new methods is the only thing that can save the company. The constitution is an example of an outmoded way of doing business. The U.S. needs to change its way of doing business if it wants to survive.