The Myth of Constitutional infallibility

Jonathan Turley, law professor at George Washington University School of Law, has recently issued some startling opinions about President Obama's conduct of the presidency. When the President ordered air bombardment of Libya in 2011, Turley represented Congress in its lawsuit, Kucinich v. Obama, to stop the exercise of the President's war powers. In his analysis of the reasons behind the suit, Turley wrote

The Framers spoke repeatedly and forcibly of their desire to bar presidents from committing the nation to war without congressional authorization and inserted an express limitation into Article I.

By invoking the Framers--i.e., the political theorists who wrote the U.S. Constitution--Turley slipped down the rabbit whole of Constitutional Infallibility. Arguments about what James Madison believed or intended to produce in the Constitution are irrelevant to modern day problems because the Framers could not foresee the circumstances of modern life.

Time in the early years of the new Republic ran much more slowly than it does today. For example, the Battle of New Orleans was fought on January 8, 1815. Hostilities continued in Louisiana until January 18. But the Treaty of Ghent, which ended the War of 1812, had been signed on December 24, 1814. So the news that the war was over took 25 days to reach the battlefront.

Under such circumstances, Congress had plenty of time for such things as declaring war and debating strategies. Today, that time lapse has vanished. The President has to make decisions within a window of opportunity of hours, not days. The mechanizations of Congress and the Courts are too slow to cope decisions that require immediate actions.

The problem with falling down the rabbit hole of Constitutional infallibility is that you are likely to meet Justice Scalia coming back the other direction. In dissenting to NLRB v. Canning, Scalia wrote

The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court's role in controversies involving the separation of powers and the structure of government.

Scalia was referring to the power of the President to make recess appointments. The Republican members of the Senate determined to oppose every appointment proposed by the president, regardless of its individual merits. They refused to let Obama appoint sufficient members of the National Labor Relations Board to make a quorum, thereby effectively nullifying the NLRB's ability to act. Scalia's opinion meant that the Constitution is obsolete, because the Senate never actually has a recess and therefore the president has no power to make recess appointments as specified in the Constitution.

Scalia and Turley may not agree on many political points, but they do share the conviction that it is very important to interpret what the Constitution says on any issue, even those on which the Constitution is silent. I contend that this agreement is facial evidence that the Constitution is broken.

The Constitution is broken because the Framers lived 200 years ago and are separated from everyday reality by 200 years of history. They are therefore profoundly ignorant of the conditions of modern life. Although possessed of massive legal expertise, the Framers were not clairvoyant. Using their opinions to make decisions today makes as much sense as calling in a spiritual medium to reveal the thoughts of James Madison.

The primary harm caused by this mummery is that the average citizen has no idea what the laws of the nation are at any time. A written Constitution made sense 200 years ago, but trying to fit modern laws to its procrustean bed makes no sense today. True, a cottage industry has grown up around such efforts, and Justice Scalia and Lawyer Turley both benefit from Constitutional controversy. But the rest of us do not. It is time to reset the scales of justice in a sensible manner and quit relying on the scribblings of the past to guide our conduct today.

The myth of Constitutional infallibility is just as injurious as the myth of divine infallibility, which supposes a supreme being who knows all things. In both cases, individual interpreters can pretend divine inspiration and contravene the decisions of legislatures and democratic elections. The nation should be governed by laws, not legends.

Scalia to SCOTUS: Stop bugging me with this stuff!

The Supreme Court found a way around the Defense Of Marriage Act (DOMA) in the case of US v. Windsor. It seems that the federal government can't make any rules regarding marriage. That's up to the states. The State of New York decided that it would recognize same-sex marriage, so that should be good enough for the feds. No more DOMA.

Justice Kennedy, writing for the majority, had more choice words for the small cabal that foisted DOMA on We the People. DOMA contrives to deprive some married couples, but not others, of rights and responsibilities, creating two kinds of marriage within the same state, the preferred, heterosexual one and the denigrated, LGBT one. It blows up New York's attempt at recognizing the equality of same-sex marriage by inserting inequality into the entire U.S. Code.

You have to admit this is one of the most high-minded decisions we've seen from the Court in a long time.

You may have to admit it, but Justice Scalia does not. He splutters incoherently in his dissent, claiming at length that the Court should not have taken up this case. It's a waste of time, he says. The U.S. Government says its not going to defend the case, so there is no case. The court can't take a case unless there is a dispute. All we have here is a big love fest.

Scalia doesn't care that the Congress decided to defend the law. The Congress has no standing to do that. In a wonderful exercise in absurdity, Scalia goes off on a wild tangent, explaining what horrible things may happen if the Court starts accepting cases from the Congress instead of letting the political process work itself out.

True, John Marshall said it was the duty of the court to determine what the law is. But not this law, says Scalia. Only other laws. The laws Scalia wants to change or eviscerate. Laws like the Civil Rights Act and the Campaign Finance Law, to name just two.

But the Court already accepted this case and all his rhetorical fury is wasted, so Scalia goes on another visit to the land that never was, the one where the Constitution works perfectly and Congress only writes perfect laws. This time he visits the place where DOMA represented the will of the Congress and the President, so an attack on this law is an attack on the U.S. Government itself.

The backers of DOMA were not attacking LGBTs, oh no! The hatred the Christian right spewed for years in every media outlet was not relevant to DOMA. No, the Congress passed DOMA to avoid difficult choice of law issues where the laws of one state conflict with another, and President Clinton signed it because he approved of the law. In other words, they passed it to save time and money.

Neither of these propositions is even close to being true. The Republican Congress passed DOMA as a sop to its radical Christian minority, which needed something to show for their unfaltering loyalty to the Republican Party. Clinton signed the law, which he has since repudiated, because he needed the cooperation of the majority party to carry on the daily business of government. It was a gritty, sordid compromise, not a noble attempt to save the government time and money on useless court cases.

Scalia calls two Frenchmen, the Baron de Montesquieu and Alexis de Tocqueville. Both these men were nobles who distrusted democracy. They were also not American Judges nor elected by Americans, so, by Scalia's oft-expressed standards, their opinions should have no standing in a Supreme Court case, like the German Constitution he mocks in his dissent.

Finally, and more than once, Scalia expresses his surprise that the Court should take notice of LGBTs as an oppressed class. When did they become oppressed, he asks. At the time DOMA was passed, no state or foreign country recognized same-sex marriage, he says, so the supporters of DOMA could not possibly be attacking LGBT individuals.

Scalia seems obsessed with particular dates. But changes in social custom and belief are often sudden breaks with the past. When did the King of England become a tyrant instead of a benevolent ruler? When the Colonists signed the Declaration of Independence. When did African-Americans cease to be property and become citizens? When Abraham Lincoln issued the Emancipation Proclamation. In both cases, one act reversed hundreds of years of precedent.

So it is with the LGBT fight for full citizenship. The SCOTUS ruling in US v. Windsor is another signpost on the path.

SCOTUS consults dictionary to see if voter suppression is constitutional

Most people would consider the case Arizona v. Inter Tribal Council of Arizona to be about the outrageous attempt by Arizona Republicans to deny the vote to Arizonans of Latino heritage. Not so Justice Scalia, who sees the case as an opportunity to discuss the dictionary meaning of the word, “accept”. Here we have the epitome of a narrow ruling, where the Court does not address the important issues in a case, instead discussing recondite matters of word meanings and reading the commentaries on election law in the Federalist.

Justice Scalia notes that James Madison, the slaveholding contributor to the Federalist, believed the federal government should not set its own requirements considering who should be allowed to vote. To do so, wrote Madison, would by degrees subvert the Constitution. Madison's overriding concern here was that non-slaveholding states would pass laws permitting African-Americans to vote. This was the reason for the Constitution's limitation in this area.

The people no longer believe there should a right to hold slaves. Therefore, the Court should give no weight whatsoever to any comments written by 18th century slaveholders on whether the federal government should determine voter qualifications. The Fourteenth Amendment took this power away from the states by declaring

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Arizona's voter registration requirement, passed in 2004, is just such a law. It erects barriers between voters and the ballot box. Studies have shown that 90% of the voters refused registration under the law were legally eligible to vote. The law crippled voter registration drives, which target first-time voters and voters newly arrived in the state.

The white supremacists who passed this law in Arizona got the results they wanted. The groups most affected by tougher registration rules are young, first-time voters, minorities, and the elderly. An objective evaluation of the effects of this law must bring it into conflict with the Voting Rights Act of 1965, which prohibits voting practices or procedures which discriminate on the basis of race, color, or ethnicity.

Once again we are faced with a situation where the laws are being violated by a small group of people who wield political power. These are the only people who could rectify the injustices they themselves are causing. Any other group that challenges these laws would require years of appeals and large sums of money.

We should not imagine that the conservatives on the court are colorblind. Justice Scalia knows that the framers had the same world view as slaveholders of that time, because they were in fact slaveholders. He personally favors rules that would exclude eligible voters from the rules, because his written opinion tells the supremacists of Arizona that they could make a similar law if they only followed his guidelines. They may, he writes,

request anew that the EAC[Election Assistance Committee] include such a requirement among the Federal Form’s state-specific instructions, and may seek judicial review of the EAC’s decision under the Administrative Procedure Act.

Those who want to suppress the vote of minorities should thank Justice Scalia for his helpful advice. None of the Justices mentioned that the right to vote is the foundation of our democracy, and that no law that prevents even one qualified voter from casting his vote should ever be ruled constitutional by this Court. 

SCOTUS Gets One Right: Humans are not patentable

The issue in Association for Molecular Pathology (AMP) et al. v. Myriad Genetics, Inc.(Myriad), et al., is whether a corporation can patent a human gene. The gene is question may hereafter be known as the Angelina Jolie gene. That's a better name than BCA1/2, to which it is referred by geneticists. Jolie discovered through an analysis of her chromosomes that she possessed mutations of this gene that are a strong positive indicator for breast cancer and ovarian cancer.

The case was brought by AMP against Myriad. AMP sought to use the Jolie gene for treatment but discovered that Myriad had taken out a patent on the gene. Myriad's fee for use was very high. AMP (and the other complainants) challenged the constitutionality of such a patent.

Under the law, patents can only be issued for materials not found in nature. The US Patent Office (PTO) issued a patent on Myriad's representation that the removal of the gene from a chromosome in which it is found in the human body rendered it somehow “not found in nature”. This logic would make it possible to patent a branch by removing it from a tree, since branches do not exist in nature except on a tree. Myriad claimed that the severing of connections to the rest of the chromosome made the gene patentable. The PTO agreed with Myriad's lawyers in their pursuit of this dubious patent.

Several commenters have complained about the technical complexity of the Court's written decision. I find this odd because most SCOTUS decisions are littered with legalese that is incomprehensible to the average college graduate. The laws of a country should be understood by its people.

Antonin Scalia (in a separate 1-paragraph, concurring opinion) also objected to the scientific terms included in the Court's opinion, written by his longtime collaborator on the Court, Justice Thomas. Scalia claims that he is unable to affirm the technical details of the opinion by his own knowledge or even his own belief.

Scalia made a good point here, but he failed to recuse himself because of his confessed ignorance of science. At least he admits his ignorance. Yet in the next sentence he says that, while BCA1/2 is not patentable because it is not found in nature, cDNA is patentable because it is not. Scalia says he has no knowledge of the science, nor even a belief. He therefore cannot have an educated opinion about the subject matter of this case.

CDNA is a material that scientists produce from DNA. Its production is somewhat like the mathematical determination of the square root of a number. Starting with the DNA, a scientist takes a number of well-understood steps to produce a cDNA, or complementary DNA. Just as there is only one square root for a real number, there is only one cDNA for a human gene segment.

The patent office does not grant patents for the square root of two, for example, nor for the process by which we obtain the square root of two. These are the building blocks of mathematics, without which there can be no progress in mathematics. Yet SCOPUS reaffirms here that a compound that stands in the path of further research can be patented, thus stifling progress.

The true importance of this decision was immediately recognized by journalists. Thousands, perhaps millions, of women who could not afford the extortionate prices charged by Myriad for cancer screening, may now be rescued from an early grave. The US is a country of laws, but it is a country of people first. We cannot condone business practices that result in the enrichment of a single corporation at the expense of human lives being needlessly lost.

Maryland v. King: New Technology Confuses Supreme Court

DNA testing is decades old. Police have developed techniques for using it to identify suspects. The suspect in Maryland v. King was caught because he was arrested for brandishing a shotgun. The police collected a sample of his DNA on a cotton swab they touched to the inside of his cheek. The sample matched DNA collected in the investigation of a brutal rape. King was convicted of that crime.

 To most people, perhaps a vast majority, this seems reasonable, even a cause for celebration. The police solved an old crime. A victim got whatever justice she could from the capture and punishment of her assailant. The public breathed a sigh of relief that a dangerous criminal is now in prison instead of on the streets, looking for his next victim.

 The Supreme Court is not most people, however. They are priests in the strange cult of Constitution worship. They compare every trial outcome to a piece of paper that is incomprehensible to most people. No one can predict what they will decide once they have performed the necessary rituals over the scrap of holy paper.

Justice Antonin Scalia is the high priest of Constitution worship. In this case, Scalia writes that the police should not be able to perform the simple act of touching the inside of a suspect's cheek with a cotton swab. The Constitution forbids it, he says. He has made similar statements in the past. The Framers of the Constitution, a small group of men who wore knickers, silk stockings, and powdered wigs, wouldn't permit it.

 This seems most strange to me. Even the existence of DNA was unknown until about 160 years after the Constitution was written. Scalia and his brethren have no way of knowing what the men of those long-ago days would have thought about today's police procedures. The whole court considers what the Framers thought, or rather might have thought, to be very important.

 The Supreme Court is very good at splitting hairs. In this case, the crucial detail is not whether the police collected the DNA sample, but when. The police should not have collected the sample at the time of arrest, Scalia writes. They should have waited until after the suspect was sitting in a jail cell. He thinks there is a distinction there.

Pragmatism should be applied here. The result in this case would be exactly the same, no matter when the DNA was collected. The result is good. Justice was done.

The Court is also very good at imagining impossible scenarios that are prohibited by the law. The Maryland law permits DNA to be collected only from people arrested for serious, violent crimes. Scalia predicts this will be used to trace minor traffic violators, even though the law specifically forbids this. He writes that this decision will be used to build a national database of DNA that includes everyone who has ever been arrested, rightly or wrongly. With this statement, Scalia is bragging that not only can he red the minds of long-dead framers, he can also foretell the future.

No one, not even a Supreme Court Justice, can foretell the future with any accuracy, any more than he can read the minds of long-dead men.

McQuiggin v. Perkins: Good news for prisoners seeking to prove their innocence

In the recently decided case of McQuiggin v. Perkins, the conservatives on the Supreme Court continue their struggle against the most powerless people in our society, those who have been convicted of a crime. Justice Scalia, in his written dissent, once again claims special knowledge of the U. S. Constitution, which, he tells the court, does not permit the Supreme Court to make changes to laws, only to opinions of other judges. The part where the Constitution forbids the Supreme Court from modifying laws, according to Scalia, states “All legislative Powers herein granted shall be vested in a Congress of the United States...”. That seems to be a straightforward statement, but it has been interpreted differently by different jurists.

Chief Justice John Marshall, in Marbury v. Madison (1801), decided that the Judiciary Act of 1801 was unconstitutional and voided the entire bill. The Act was passed by the Congress, but the Supreme Court nullified it. This is undoubtedly legislating, by deciding which laws may be implemented and which may not. So the Supreme Court has been legislating from the very beginning of the republic.

The framers did not intend for judges and legislators to become quasi theologists using the Constitution as holy writ. Today, the text of the Constitution is held in such reverence by some Supreme Court Justices that they relate almost every case directly to the Constitution, whether or not the Constitution has any relevance to the case. Scalia has assumed the mantle of soothsayer, since he interprets the Constitution and expects others to be guided by his interpretation. When he says that Judges are forbidden by the Constitution to legislate, he splits some very fine hairs about what constitutes legislation and what doesn't.

Scalia also continues his crusade against what he considers a blasphemous decision, Brown v. Allen (1953). In Brown, the Court decided that a writ of habeas corpus could be granted not just on procedural grounds, but also on substantive grounds. Scalia refers to this decision as a Faustian bargain, in other words, a deal with the devil. He goes on to complain that Brown has caused the courts to be inundated with requests from prisoners. Scalia has said that there is no such thing as substantive due process.

Whether substantive process exists and whether appeals should be granted on substantive grounds depends very much on your politics. Conservatives argue that the Constitution only guarantees you a statutory trial, but does not guarantee a fair trial. You got your trial, your lawyer bungled his job, and now you're sitting in a jail cell for 20 years. If you try to assert your innocence in court, Scalia writes, you are contributing to a flood of “stale, frivolous, and repetitious petitions”.

Looking at substantive grounds for a retrial, however, as the majority of the Court ruled in this case, gives an innocent person a chance to prove his innocence in court. Justice Ginsburg, in writing the opinion of the court, writes that a provable claim of innocence justifies the extension of the one-year limitation prescribed by law. The substantive finding of actual innocence, she says, outweighs the letter of the law, which would require the innocent as well as the guilty to be punished for failing to meet a deadline.

This finding drives Scalia mad. He says the law must be observed. In this uncompromising stance he is acting like the clerk who won't let you buy a pack of cigarettes after closing time. The store is closed, the chance for justice has vanished. Scalia and the clerk make the same excuse. “It's not my fault,” says the clerk. “Rules are rules.” But Scalia and the Supreme Court are not clerks at a seven-eleven. They are the highest jurists in the land, the last court of appeal. Scalia's opinion attests to his belief that innocent people should suffer to reduce the workload of the courts.

In his dissent, Scalia uses a metaphor that reveals just how removed he is from reality. You can't just add something to a law passed by the legislature, he says. “any more than one would add another gear to a Swiss watch on the theory that the watchmaker surely would have included it if he had thought of it. In both cases, the intricate craftsmanship tells us that the designer arranged things just as he wanted them.”

The problem with this metaphor is that the watchmaker of a Swiss watch is making an instrument that is guaranteed to work indefinitely. The watchmaker assures the buyer that all of his skill has gone into the making of this watch. A legislative body assures no such thing. The legislature presents the public with a law that is very often a compromise between two diametrically opposed schools of thought. Laws are frequently badly written, containing loopholes that skillful lawyers can use to negate their purpose. Sometimes laws fail in practice because the legislature designs the law to do something that cannot be done, such as lower taxes and balance the budget at the same time. Comparing congress to a Swiss watchmaker is like comparing God (who is infallible) to the committees that design how traffic flows in our big cities.

We all may wish that our Constitution and laws could be perfect, but most of us understand that they are not.

Kiobel v. Shell: Supreme Court Gives Corporations A Break

In an important case, Kiobel v. Royal Dutch Shell, the U.S. Supreme Court has once again ruled in favor of corporations and against individual human rights. Court observers should have had no doubt about the resolution of this case. The U.S. Chamber of Commerce, a powerful lobbyist for corporate interests, has made its opinion known. Businesses around the globe, said a spokesman, are being punished in U.S. courts with costly, reputation-damaging litigation.

Neither the Chamber of Commerce nor the Court seem interested in the crimes committed by corporations in these cases. These crimes are the worst sort of human rights abuses.

Filartega v. Pena-Arala (1980) was brought by the sister and father of Joelito Filartiga who was tortured and killed by the Paraguayan government. In Kadic v. Karadzic (1995), muslims and Serbians charged Radovan Karadzic, president of Srpska, for acts of rape, torture, extrajudicial killing, and genocide committed by soldiers under his command.

In re South African Apartheid Litigation (2004) was brought by South African citizens against multi-national corporations for aiding and abetting apartheid, extrajudicial killing, torture, cruel, inhuman or degrading treatment, and denationalization. The corporations involved in these lawsuits were Daimler, Ford, General Motors, and IBM. This case has not yet been brought up on appeal. Its fate is doubtful, given the Court's decision in Kiobel. All these cases have been brought under the Alien Tort Statute of 1789 ("ATS"), which gives U.S. District courts the right to try cases that originate in foreign countries.

ATS has been invoked in law suits 154 times since 1995.

The Supreme Court tolerated ATS until victims began targeting corporations. One law journal article estimated that continued prosecution under the law might cost corportions $6 billion over the next few years and cause multi-national corporations to stop doing business in countries that are notorious violators of human rights, like China. The article called this a nightmare scenario, while admitting that it hasn't happened yet.

An alternate scenario could be that multi-national corporations begin to protest human rights violations in countries like China to protect their bottom line. Then human rights violators will stop denying rights to their citizens because they need foreign capital to survive. One advantage of ATS is that it allows victims to sue for damages, while other international human rights laws hand out criminal penalties. The cash awards permit human rights law firms to take the cases on contingency and continue to represent victims in other cases.

The chances of either scenario happening were diminished by the Supreme Court, which rejected the arguments of human rights victims in Kiobel. Cases filed under ATS had two characteristics that bother the conservative justices on the Court. First, the statute can be used against corporations, which the Court has shown an eagerness to protect. Second, the statute can be used for any violation of the law of nations, now known as international law, which the conservatives on the court hold in contempt.

Justice Scalia proudly boasts he does not cite the opinions of foreign judges in his analyses of Constitutional law. He cites a number of areas where European law differs from American law as the reason for this practice. European courts, he says, have declared homosexual sodomy legal; abolished the death penalty; banned political donations for periods of time before elections. ATS specifically mentions offenses under international law. Using ATS forces American District Courts to become interpreters of international law.

The differences Scalia cites between U.S. and European law do not represent instances where Europe is wrong and the U.S. is right. They are instances where Scalia personally disagrees with European law, but where millions of Americans would accept the European position.

In his opinion in Kiobel, Chief Justice Roberts used a concept, presumption against extraterritoriality, that has not been well-defined. Roberts rejects the petition of Kiobel for redress against Shell Oil Company because accepting the petition might result in discord between nations. This decision is a transparent effort to resolve the claim in favor of a multinational corporation, regardless of the merits of the case. Recall that Filartiga was brought by a Paraguayan citizen against another Paraguayan citizen for crimes committed in Paraguay. Kiobel was brought by a Nigerian citizen against a multinational corporation for crimes committed in Nigeria. If anything, there is a closer relationship to the U.S. in Kiobel than in Filartiga. It is hard to view the Court's decision in the current case as anything but a complete reversal of the earlier case.

Roberts decides that the U.S. Supreme Court cannot intercede because the acts of Shell are also illegal under international law and therefore should be tried in an international court. Roberts knows Kiobel won't be tried in an international court, however, because the attorney for the plaintiff informed him in oral argument that no other judicial body showed an interest in taking the case. Furthermore, international courts are familiar with conflicts between countries and have procedures in place to handle such conflicts. Therefore, U.S. entry into the case would offend no one.

The Court's minority also concurred with the majority, making this a unanimous decision. The minority refused to accept Roberts's opinion on extraterritoriality. Rather, they ruled against appellant because they viewed the case as too trivial for action. This is probably the reason why international courts would not take the case, because they are busy with cases involving thousands of victims. The Supreme Court's refusal to uphold Kiobel’s appeal probably means that individuals will have a hard time getting a hearing for human rights violations in the foreseeable future. The international courts are too busy and the U.S. courts don't care.

The legislative agenda of the conservative Court majority proceeds. The Court has chosen groups to favor and others to disappoint. In this case, they have taken an inconvenient law and emasculated it. The judicial tools they use differ, but the result is always the same. Conservatives prosper, progressive languish.

Somewhere in its world of parsed word derivations and historical usages, the Court should find room for justice and equality. They should care whether Kiobel's wife gets compensation for her husband's murder. They should care whether prisoners on death row are innocent or only guilty of being poor and black or brown. They should put on their robes and walk to the courtroom with the humble acknowledgment that they are empowered by the people to administer justice and they should do their duty.

Our Decrepit Constitution: Defanging the Senate

The Framers designed the Senate as a stronghold for prominent men. John Adams wrote that all members of the government should be gentlemen, which he defined as friends and connections of the well-born and educated. In those days, prominent men took pride in their erudition. We know what books Thomas Jefferson had in his library because he donated the entire collection to the Library of Congress after the War of 1812. Jefferson was an American patriot, but no isolationist. His library included an extensive collection of Greek and Latin classics, books in modern European Languages like French and Italian, and a broad selection of subjects from astronomy to poetry. He likely would have laughed at the idea, commonly espoused by today's Supreme Court, that only American laws should be consulted.

Adams himself wrote 10 volumes of scholarly books, primarily on government and law. He was both a scholar and an author, as well as a statesman. He believed in the superiority of the natural aristocracy. Adams believed the aristocracy were the only men who should be allowed to govern the new country. He and other framers believed that democracy was dangerous. He favored not a democracy but a republic which he defined as a government run by representatives of the people, not the people themselves.

The Senate was one of the measures taken by the framers to keep government firmly in the hands of the gentlemen. The framers assumed that fewer members in the Senate would make the positions more highly sought after. Originally, the Senators were to be appointed by state legislatures, rather than elected by the people directly. This method of appointment was thought to add even more assurance that only the best men would be elected to the senate. Senators were to serve for six years. This qualification insulated senators from pressure by the people they were supposed to represent. The framers believed senators should represent the votes of the people, not their opinions.

From the beginning, the Senate was a place where a few men could block progress, the inevitable change brought about by the passage of time. Progress happens primarily because people are changeable. New ideas arise for the popular mind to accept or reject as it sees fit. The framers assured that the public would learn new ideas when they guaranteed freedom of speech and religion. They tried to slow progress by omitting the liberal ideals expounded in the Declaration of Independence from the Constitution. The Constitution did not consider all men equal, at birth or at any other time. It consigns Africans to slavery and the original inhabitants to annihilation by making no reference to the rights of indiginous peoples.

During the first 60 years of its existence, the primary function of the Senate was to prevent any anti-slavery laws from passing. It did this by creating gridlock in the government. Each state had two senators, regardless of its population. The pro-slavery states assured that one slave-holding state would be admitted to the union for each new free state. This tactic meant that the number of pro-slavery senators always matched the number of anti-slavery senators. The admission of California as a free state in 1850 doomed the senate deadlock system and led to the Civil War.

The Senate remained a place where a minority faction could block the will of the majority. The Senate was still the bastion of elitism it had always been. During the twentieth century, the Senate opposed internationalism, preferring a protectionist system that they felt favored the wealthy banking and merchant classes in the U.S. The Senate used its veto power over treaties to wreck the League of Nations. President Wilson intended for the League to prevent major wars by creating a forum where the great powers could talk to each other instead of shooting at each other. Without the cooperation of the U.S., the League failed to prevent the next catastrophic war. The Senate still had more damage to inflict on the world, however, by committing the U.S. to a policy of isolationism. In that isolationism, Nazi Germany arose and grew until it was almost capable of taking over Europe. During the 1950s, the Senate used its filibuster power to block civil rights laws, once again delaying inevitable progress.

After the election of Barack Obama, the Senate used its filibuster power to halt most of the president's fiscal programs. This led to a prolonged recession and suffering for millions of Americans. The Senate, representing the wealthy elite, was not affected by the suffering it inflicted on others. By this time, the U.S. government had delayed facing numerous problems, including drug violence, massive incarceration of its minority populations, two disastrous wars, an enormous and expensive military, the collapse of the middle class, violence in its cities, and a country divided against itself to as great an extent as it had been in the 1850s.

The Framers modeled the Senate after the English House of Lords. The House of Lords performed the same function as the U.S. Senate, that is, rejecting legislation aimed at taxing the wealthy and aiding the poor. The British system was not crippled by a Constitution like ours, however, and in 1911 the Parliament passed a law removing most of the power of the House of Lords to reject or delay laws.

The U.S. Senate was certainly as much a hindrance to progress as the House of Lords. In the 20th century, the Senate kept the executive branch from forming critical alliances, enacting treaties that meant the difference between war and peace, and enacting legislation that provided equal rights to African Americans. In the 21st centure, the Senate became even more obstructive, blocking or delaying numerous judicial nominations and refusing to fund agencies that favored the middle class over Wall Street millionaires and corporate executives.

The addition of another layer of checks allotted to the wealthy class in the form of a powerful Senate is a drag on the government at a critical time in our history. After passage of the National Initiative Amendment, the people should pass initiatives that severely limit the power of the Senate as it is currently defined in the Constitution. The number of Senators should be increased by 100 at-large seats, elected by popular vote nationwide. This will increase the influence of larger states like New York and California, while making each Senator less powerful.

An amendment should pass that limits the ability of the Senate to delay a bill by more than 3 months. If the Senate refuses to accept a treaty negotiated by the executive within 6 months, the treaty will automatically be ratified. These reforms should defang the Senators and turn the Senate into a debating club for the wealthy. Its fangs will be removed.

Our Decrepit Constitution: Electoral College and The Civil War

Electoral College

Americans credit the men who wrote the Constitution—the framers--with great wisdom and foresight. Supreme Court Justices have started a cult that worships the Constitution as a perfect document. They pore over its text and the opinions of its creators as though they were religious texts and revelations of the true word. Some also claim that the framers were inspired by God, usually by a Christian fundamentalist God.

None of these beliefs is true. The framers were neither godlike nor exceptionally wise. The document is not based on religious ideas. The Constitution is deeply flawed and becomes more so with each passing year. The framers made it hard to change. Amendments require passage by both houses of congress with a two thirds majority, then ratification by three fourths of the state legislatures. Most amendments also specify that they must be ratified within seven years.

The framers have recently been considered by some the infallible source for American law. This assumption implies that they were always right, at least about law and government. This assumption was very far from the truth.

The framers invented the electoral college, ostensibly to prevent the voters from making a mistake when electing a president. Instead, it was the electoral college that made the mistake, in 1800, when it gave the same number of electoral votes to both Thomas Jefferson and Aaron Burr. The House of Representatives elected the president that year. The Constitution created a crisis where none existed.

The framers decided that each state should have only two senators. This compromise gave more power to the less populous states at the expense of the states with larger populations. In 1787 the most populous state, Virginia, had 20 times the population of the smallest, Delaware. In 2010, the most populous state, California, had 65 times the population of the smallest, Wyoming.

History tells us that states vote in regional blocs, with relative size having little to do with their decisions. Neighboring states New York (a large state) and Rhode Island (a small state), for example, voted for the same presidential candidate in the last seven elections. Neighboring states Louisiana(small) and Texas(large) voted for the same presidential candidate in the last seven elections as well. Louisiana and Rhode Island, both small states, voted for different candidates in all seven elections.

Since small states no longer vote in a bloc, if they ever did, the election of two senators from each state, regardless of population, does not serve the purpose intended by the framers. Instead of balancing the interests of different sized states, California's two senators represent a disenfranchisement of 36 million voters in relationship with Wyoming. The framers may have been right in 1787, but their judgment on this matter, at least reflected by presidential choices, is wrong today.

The framers made no provision for political parties in their Constitution. This oversight has become a serious problem in recent years. The British Parliamentary System recognizes that there will always be more than one party. The leader of the majorityThis arrangement gives the leader of parliament, the prime minister, the ability to govern if he can unite his own party behind his platform, a relatively easy proposition, given that all members of his party stood for election on the same platform.

The American system divides government between political parties. This division makes legislation more difficult to pass and slows down the process of government. James Madison argued that representative democracy rather than direct democracy because he claimed that direct democracy gave rise to factions. Madison defined a faction as a group of citizens united in some passion or common interest against the interest of others. He singled out the factions that arise from inequality of wealth and argued that a representative democracy would protect the minority from the majority.

Madison believed the best way to guard against factions was to create a representative democracy. Direct democracies, he claimed, always failed within a short time. The difficulty that arises here, which is a major difficulty with all opinions expressed by the framers, is that these conclusions are drawn on examples with almost no data. The number of direct democracies documented by history in Madison's day was precisely one, the direct democracy of Athens during the fifth century BCE. Any argument based on such limited data must be questioned.

It is pointless to argue whether Madison's theories on factions or democracy were correct. Like the philosophers he admired, Madison argued using only pure examples to illustrate his ideas. Madison argued that representative democracy had advantages over direct democracy but failed to recognize that no pure direct democracy has ever existed nor ever could exist. The representative democracy created by the Constitution has over the years become more democratic, through the direct election of Senators in the federal government and the addition of democratic ideas such as initiative and referendum in the individual states.

The Civil War

Madison considered that factions of the majority were dangerous to a nation, not those of the minority. He had in mind the faction of the poor, which is always greater than the faction of the rich. Madison's Constitution intended to guard against majority factions and guard minorities. This presumption, that only majority factions are dangerous, has been disproved by history. Several crises in American history have arisen because of minority factions, primarily because the wealthy have been successful in seizing and holding the reins of power in precisely the manner which the framers sought to prevent. The rise of a tyrant, which Justice Scalia claims that the Constitution has prevented, has never been a problem in America. What has been a great problem, and remains a problem today, is the accumulation of vast riches by a small class of people, who use their wealth to seize and retain power.

Scholars often speak of a Constitutional crisis as being a political problem that cannot be resolved easily by the Constitution. Examples of such crises were the election of 1800, when Jefferson was elected president by the House of Representatives; the election of 1876, when Benjamin Harrison became president with fewer popular votes; and the Watergate scandal that ended the presidency of Richard Nixon.

The most serious crises in American history did not arise from a failure of the framers to foresee an event. Instead, they were caused by the framers' express intent. Despite Madison's concerns, there have been no factions of the majority. Instead, three crises in American history have been caused by factions of the minority, who were not poor but wealthy. The Civil War, the Great Depression, and the Great Recession were caused by flaws in the Constitution.

The framers needed to gain the support of slave holders. They inserted several pro-slavery features into the Constitution. Article I, Section 2 of the U.S. Constitution defined a slave as worth three fifths of a person. This article strips African Americans of their rights as humans. African Americans not only submit to the lash, they must also give their votes to their masters, who were free to vote, again and again, to keep them in perpetual servitude. This article continued in force for seventy-six years. It contributed to the widespread belief that African Americans were racially inferior and reinforced the conviction in the Southern states that their actions were legal and just.

Article II, Section 1 establishes the electoral college for the election of the president. The slave-holders were concerned that their slaves, once freed, would take control of state government from them. They saw the electoral college as a means to permit a small group of voters to thwart the will of the majority. This worked in actuality. Only 1.3% of the population cast their votes in the first presidential election. Virginia had the most electors, thanks to its large number of slaves. The first president was George Washington, a prominent Virginian and a slave-holder. The second president was John Adams, from Massachusetts. Jefferson, Madison, and Monroe were all Virginians and slave holders. Andrew Jackson, from Tennessee, was also a slave-holder from a slave state.

These early slave-holders held the presidency until 1836. At that time, slave-holders from southern states had held the presidency for 40 of the previous 48 years. They used their tenure to promote slavery at home and abroad. They appointed southerners to the Supreme Court with lifetime tenure. These supreme court justices tried to perpetuate slavery and spread it to the northern states.

The US Supreme Court ruled, in Dred Scott decision(1857), that a slave who lived in a free state was still a slave. All six southern justices voted with the majority. Northern opponents of slavery feared that this decision meant southern slave-holding states could export slaves to the north. The decision heightened tensions that led to the Civil War breaking out in 1861. Although the Supreme Court did not cause the Civil War, Dred Scott showed how much influence the southern states had gained through the electoral college and the pro-slavery compromise within it.

Our Decrepit Constitution: 3. The Silver Bullet

Our Decrepit Constitution: 3. The Silver Bullet

On December 12, 2000, the US Supreme Court decided that George W. Bush would be president of the United States. The Court acknowledged that the Constitution left the election of the president to the people, but decided nevertheless to intervene, something it had never done before.

The Constitution furnishes almost no guidelines for the election of the president, one of the most important political undertakings of the government. The framers intended for the president to be chosen indirectly, by electors elected by the people, not by the people themselves. The framers intended for the electors to meet after the popular vote was taken. Only then would the electors decided the actual winner of the election.

As usual, however, the framers omitted the process to be followed in case of dispute. In particular, they did not specify that the Supreme Court, an unelected body of judges who held lifetime appointments, should not determine the outcomes of elections. In 2000 this led to the election of a president by five such judges after 200 million citizens had cast their votes in the general election. Furthermore, all five of these judges had affiliations to the Republican party, whose candidate they chose as the winner. These judges showed no reluctance to support their party's candidate, despite the express intent of the framers to lift the Supreme Court justices above the fray of electoral politics by giving them lifetime tenure.

Over the years, the citizens of the US became concerned about the influence of corporations and large political contributions. The Congress, responding to the will of the people, passed laws that regulated contributions from corporations. In Citizens United v FEC, the Supreme Court ruled that the concerns of the people were groundless. The Court ruled that corporations were nothing more than associations of individuals and as such were entitled to the same rights as individuals under the First Amendment.

This ruling supported the Court's belief that the rich had more rights to express their opinions, since it is obvious to everyone that the rich can buy more speech than the poor. The Court delared that there cannot be too much speech. Through this ruling, the court overruled the people of the United States, whose common sense tells them that corporations spending vast amounts of money wield inordinate influence over politicians and their decisions.

In Citizens United, the Court once again found a way to support the Republican party. They voted five to four along party lines to permit unlimited corporate contributions. Many groups have been proposed that an amendment to the constitution would resolve this issue. The impartiality of the supreme court is fundamental to the design of the Constitution. The framers designed the Constitution to operate by checks and balances. Without an unbiased Supreme Court, their design fails.

The Constitution conceals this flaw and many others. The framers intended the Constitution to be amendable, yet only 17 amendments have been enacted, other than the Bill of Rights, in over 200 years. There are several reasons for this failure of the original design.

1. The United States has many more states than it had originally. When there were only 13 states, the number of legislatures required to ratify an amendment was 10. Today, when ratification requires the approval of 38 state legislatures, the amendment process should be at least 3 1/2 times as difficult.
2. The population of the United States is more than 100 times what it was in 1787. Persuading a number of people of the necessity of a change increases with the number of people who must be convinced. The people do not directly vote to ratify amendments, but they do vote for the legislators who must make the decision.
3. Both the larger number of states and the larger population make the amendment process more time-consuming.
4. The increase in time and energy, and above all money, that can be spent to defeat an amendment makes it unlikely that an issue can achieve a 3/4 approval. Money can be spent liberally to confuse the issues. Confusion will make the amendment less likely to pass.
5. The vast amount of money that must be raised to ratify an amendment will make it difficult to pass a complex amendment, such as one that abolishes the Electoral College.

Numerous amendments have been proposed to overturn the Citizens United decision. The opponents of this decision correctly view it as a threat to democracy itself. All of these amendments, however, share a common flaw. These amendments seek to correct a single decision of the Supreme Court, but history has shown that the enemies of democracy will soon find another way to suppress the rights of the people. Given the impediments blocking any Constitutional Amendment and the large errors and oversights in the Constitution itself, there is only one solution. The amendment process itself, as described in Article V of the Constitution, must be changed.

The change required is simple. The Constitution must be amended by referendum and initiative, using the same process as already exists in many states. Such an amendment, known as the National Initiative, has already been proposed.

The existing initiative and referendum laws were proposed during the Progressive Era (1890 – 1930). At that time, people were concerned that big corporations were controlling state legislatures. Corporations are once again threatening our democracy. We need the National Initiative, the Silver Bullet that can rectify many of the Constitutions problems and return the government to its rightful owners, the People.

Our Decrepit Constitution: 1. Bill of Rights

The framers of the U.S. Constitution cobbled together a document that described a possible government for the thirteen original colonies. All of the framers who signed the constitution understood that it is not a perfect document. It is a compromise. The Senate is composed of two delegates from each state as a compromise to appease the smaller states. This principle, adopted by the California State Constitution for its State Senate, was struck down by the U.S. Supreme Court in Reynolds v. Sims, 377 U.S. 533 (1964), when Earl Warren wrote that legislatures represent people, not trees or acres. The U.S. Constitution, 48 years later, still supports the notion that U. S. Senators represent trees, not people.

The Constitution limited eligible voters to white male property owners. The property owners could also cast votes on behalf of their slaves, each of which was set equal to 3 fifths of a white man. Seventy-six years later, the Fourteenth Amendment gave to African-Americans the right to vote. Fifty-five years after that, the Nineteenth Amendment extended the franchise to women. Yet modern textualist jurists insist that we should interpret the words of the Constitution exactly as the framers meant them. This is nonsense. The framers were parochial thinkers in a backward country, still threatened by larger neighbors and Native American tribes. They were hardly the repositories of all wisdom that modern conservatives imagine them to be, nor did they believe that of themselves. Their experience did not include much of what today informs our thinking about human rights, science, and philosophy.

Some of the framers might be included in the group of thinkers who epitomize world wisdom on the subjects of politics and government, but not all. Madison, Hamilton, and Jay authored the Federalist Papers. Other signers of the Constitution are less well known as thinkers. Later thinkers would also be included in the prestigious group, like Abraham Lincoln, Theodore Roosevelt, Woodrow Wilson, Franklin Delano Roosevelt, Susan B. Anthony, Eleanor Roosevelt, and Martin Luther King, to name only a few Americans. The international list would be much longer and would include a number of non-Americans who influenced the framers, including Locke and Montesquieu.

Americans in general, not just conservatives, believe that the Constitution is a semi-divine document. It gives us foolproof rules for governance. It protects our rights. We believe this despite the numerous constitutional crises that have occurred over the years.

Constitutional Crises

The first constitutional crisis involved the manner prescribed by the Constitution for the election of the president. This crisis occurred in 1800, when opponents of Thomas Jefferson tried to have Aaron Burr declared president. Burr was the vice presidential candidate, but the Constitution failed to recognize that the Vice President and the President would usually have the same number of electoral votes and that this fact could be exploited by politicians. The election of 1800, only the third presidential election held under rules established by the Constitution, was decided by the House of Representatives instead of the electors.

The nation has a severe problem. The Republicans have kept their promise never to raise taxes, but they lowered taxes and made vast appropriations for two wars without raising the funds to pay for them. No one likes high taxes, but the government needs money to pay for the programs that voters have approved and that business and the poor may rely on. The Constitution, which makes it impossible to pass laws without compromise, compounds the problem. The Republicans will not compromise on their political positions. They have made a constitutional crisis into a government crisis for which no one has found an answer.

Despite evidence to the contrary, many people, including members of the courts, consider that the Constitution is perfect or nearly so. All we need to do is tweak it from time to time. But the document itself forbids change. The Constitution is 224 years old this year. It is a creaking vessel taking in water at every joint. It was designed to slow the pace of change. Recently it has succeeded so well that it seems to be turning time backward to a time when only property owners had rights, minorities were enslaved, women had no vote, and only one culture was accepted and protected by the government.

The Supreme Court determined the outcome of the presidential election of 2000. The election in Florida was indecisive. Both sides claimed victory. A series of actions by the Florida state legislature and courts were appealed to the Supreme Court, which made its decision along strict party lines. Nothing in the Constitution gives the authority to decide elections to the Supreme Court, but nothing in the document prevents them from doing so.

Our leaders and thinkers spend a great deal of time thinking about how to make the Constitution work, just as medieval thinkers exhausted their energies trying to imagine God and his plan. The thinkers who followed medieval times created a government ruled by a document, just as the Church was ruled by the Bible. The study of the Constitution has become as sterile and fruitless as the theological studies of the Middle Ages. We need to stop wasting time fantasizing about what the framers intended and start thinking about how to put our country back on track.

First Amendment

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 the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The first amendment was intended to guarantee the rights of individuals to speak out against the abuses of government. From the very beginning, these rights were challenged by the government, which passed the Alien and Sedition Acts in 1798. The Supreme Court never invalidated the Alien and Sedition Acts, although the Acts specifically banned freedom to criticize the government. The government used the Acts to imprison a Congressman, John Lyon, for writing a letter critical of President Adams and other similar acts. The Constitution did not protect Lyon's rights.

More recently, the supreme court has ruled that people with large sums of money have a right to drown out the voices of the majority. A small group of plutocrats spent hundreds of millions of dollars in 2012 to elect candidates to office. They did not succeed in getting the presidency, but they did succeed in many other races and they retained control of the House of Representatives. The framers envisioned a representative democracy. The Supreme Court has interpreted the First Amendment as giving inordinate power to a small group of wealthy people. The government has almost ceased to be a democratic republic and is close to becoming a plutocracy.

The plutocrats have taken advantage of the Supreme Court's ruling by financing propaganda. They use vast fortunes to buy advertisements on television, radio, and in print. They buy their own newspapers, radio stations, and television networks. The newspapers and networks created numerous scandals that were damaging to their political opponents.

The First Amendment protects people's right to tell lies, but it does nothing to protect people from the damage done by lying, legally called defamation. The laws against defamation in the U.S. are too weak to prevent elections being altered by lies. In 2004, a group of wealthy Republicans spent millions of dollars to convince the public that John Kerry had lied about his war record. The Kerry campaign had no way to stop the lies being broadcast continuously for weeks. The First Amendment protected the defamers and engineered Kerry's defeat.

Rupert Murdoch has subverted the press by buying Fox News Channel and turning it into a non-stop propaganda networkfor the Republican party. The wealthy publishers, Disney and Warner and their peers, still have this freedom. The rest of us do not. The copyright law makes an exception for fair use, meaning that you or I can use copyrighted material without paying for it under circumstances. The Digital Millennium Copyright Act (DMCA) took the right of fair use away from anyone posting to social network sites on the internet. The DMCA determines that a copyright holder can demand that a publisher, such as Facebook or YouTube, must immediately remove any material from its website or face severe fines. This removes the concept of fair use from copyright law, since Facebook or YouTube will not protect your fair use right and risk large fines. The Congress has taken away your right to due process, since the material must be removed immediately. You can appeal, and may win, but lawyers cost money and trials take time. If fair use must be won it court it is not safe to publish anything that may be contested.

It may appear contradictory that laws against defamation are too weak to prevent intentional lying but copyright laws are not strong enough to protect the right to fair use of copyrighted materials. The parties favored by the two laws have a great deal in common, however. They have plenty of money to defend themselves from charges of defamation or to attack people they accuse of violating copyrights.

The First Amendment forbids the congress making any law respecting the establishment of any religion. Congress passed and President Clinton signed the Defense of Marriage Act in 1996. This law, by defining marriage exclusively as a right of heterosexuals, adopted the religious views of part of the population and incorporated those views into federal law. The First Amendment did not prevent this from happening and could not help people who suffered from its effects. In 2012 the Supreme Court appears ready to annul the law, only sixteen years after its passage. The constitutional system appears to work, but only after time and money have been expended to fight this law. Justice delayed is justice denied.

Second Amendment

Its supporters, including members of the supreme court, ardently believe that the second amendment guarantees every U.S. Citizen the right to own a gun. The actual wording of the amendment does not appear to support this belief:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

The form of this amendment is a logical inference, meaning that if and only if the first part of the sentence is true, then the second part will also be true. Therefore, if a well regulated militia is not necessary to the security of a free state, the right of the people to keep and bear arms may be infringed by federal law. In some cases, where firearms cause danger to the people, then arms must be regulated to protect the public safety.

Justices of the Supreme Court who wish to return the country to the supposed golden age of the 18th century have ceased to analyze the actual meaning of the Constitution. They instead have developed complicated systems to infer that the framers, or at least the society of the late eighteenth century, believed that the right to bear arms should exist independent of any militia. This is hardly plausible, since the framers showed themselves to be fearful of the masses in numerous aspects of the Constitution.

The Second Amendment is obsolete. It guarantees citizens the right to bear arms because a well-regulated militia is essential to the security of a free state. This amendment passed before the U.S. had a standing army. Many of the framers, including Thomas Jefferson, opposed a standing army or navy. They intended to defend the country from England or France, then world superpowers, with a volunteer army whose soldiers kept their own guns.

During the Civil War militias were called out by the governors of the southern states to serve as the nucleus for an army of rebellion. In response to this abuse by the states, the Militia Act of 1903 established the National Guard under the dual control of the states and the federal government. The Militia Act gave the President the authority to place the state militia under the authority of the Army, thus effectively preventing their use for purposes of insurrection. Yet second amendment supporters continue to threaten rebellion.

The Second Amendment continues in force long after it has outlived its original purpose. Today it causes more harm than good by providing a legal excuse for the sale of deadly weapons to civilians. Twelve thousand people die from gunshot wounds in the U.S. every year. The Second Amendment, intended to protect the United States against invading armies, now contributes to needless slaughter of our citizens.

The politicized Supreme Court ruled in 2008 (District of Columbia v. Heller, 554 U.S. 570) that the Second Amendment guaranteed an individual's right to own a firearm, regardless of his membership in a militia. In this ruling, the majority of the Court continued its identification with the Republican Party by ignoring the legislative history of militias after 1789. Their ruling would have been correct in 1789, in a frontier country where everyone was required to bring a musket with them when they were called up.

A musket is a single-shot weapon that takes up to a minute to reload. The bullet must be inserted into the barrel of the musket, then tamped into place with a steel rod. A person must practice long hours to reload quickly and aim the gun properly. He will find great difficulty hitting a moving target, especially one that tries to get away. Most minutemen were not great marksmen, nor were they capable of coordinating their shot

It is not 1789 any longer. Our hand-held weapons can fire 50 or 100 shots in minutes without reloading. Gun sales advocates frequently argue that murderers will find other weapons if guns are not available. These advocates cite the genocide in Rwanda where 500,000 people were killed with machetes. The massacres there occurred over 100 days and involved up to 500,000 attackers. By contrast, a single individual with an automatic rifle killed 20 children, along with the 6 adults that tried to protect them, in less than an hour. Had the shooter been armed with a knife, it is likely that no children would have died, as there were adults on site who tried to disarm the shooter.

President Obama has recently announced several initiatives on gun control. He announced, as do all other politicians making public statements in support of gun control, that he is a firm supporter of the second amendment. Gun control laws protect the American people from the dire consequences of the second amendment. Its repeal would save thousands of lives annually.

Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Patriot Act was the first law that subverted the terms of the fourth amendment. Section 215 of the Act made it possible for investigators to demand that a suspect turn over tangible things so long as these things are needed for an authorized investigation. The investigators no longer need to show probable cause, or even reasonable grounds, that the person under investigation is engaged in criminal activity.

In 2002 President Bush signed an executive order authorizing the National Security Agency (NSA) to conduct warrantless wiretapping of thousands of American citizens without a court order. At about the same time, the NSA began working on a top-secret project called Stellar Wind, that would collect millions of documents, phone calls, and digital transactions and store them in a massive facility in Bluffdale, Utah. These digital records were collected from law-abiding American citizens without warrants.

The Fourth Amendment did not stop the President from authorizing warrantless searches, nor did it stop the Congress from passing legislation that apparently violates the constitutional provision against unlawful search.

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The framers put their faith in independent, reasonable jurors. A grand jury today seldom decides cases against the advice of the prosecutor who convened the jury. The prop of an independent grand jury has been removed, although the independence of jurors may always have been illusory.

Supreme Court Justice Antonin Scalia has held that the Constitution does not prevent the execution of a defendant who has been convicted by a full and fair trial and later convinces a habeas court that he is innocent. This is true. The Fifth Amendment states that a person may not be deprived of life without due process of law. It does not prevent a state from manufacturing evidence against a defendant. The Supreme Court, following Scalia, considers only the careful observance of procedure, not flaws in the process itself, or the prejudice of the people. Troy Davis, whose case Scalia was commenting on, was executed by the state of Georgia despite efforts of numerous individuals and organizations to secure a review on the basis on recanted testimony..

The framers erroneously assumed that state governments would take care not to convict innocent persons. Instead, according to the NAACP and Amnesty International, states have shown a propensity to convict African-Americans for crimes regardless of their guilt or innocence. Since 1973 over 140 persons have been released from death row where they had been confined as a result of due process. The defendants were not protected by the Fifth Amendement, but because of a post-trial actions, such as the discovery of DNA evidence.

An unjustly convicted person should not expect a reprieve from the Supreme Court, where Scalia refused to consider Davis's case, calling it a fool's errand and a sure loser.

Due process starts with the presumption of innocence. Without that presumption, the accused is presumed guilty until he clears himself. The reasonable doubt is then given to the prosecution. Without that coin to throw onto the scales of justice, a defendant has little chance to escape punishment.

The Fifth amendment explicitly prevents the state from forcing a defendant to testify against himself. This clause was intended to prevent the use of torture in criminal trials, where it was still used in the eighteenth century. The Bush Administration, wishing to use torture against captured terrorists, simply disregarded the Fifth Amendment. John Woo, a lawyer appointed by the president, wrote an opinion that justified the use of torture. His opinion was used by the CIA to justify their treatment of enemy combatants.

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment bans cruel and unusual punishment. The state of Alabama impressed prisoners into chain gangs and forced them to toil in the hot sun without concern for their health or safety. Chain gang members who became angry at their treatment vented their anger on the men who were chained next to them and could not escape their attacks. Prison wardens rounded up African Americans on fictitious charges to supply their customers, who profited from this form of slave labor. The institution of the chain gang was outlawed by the U.S. Supreme Court as cruel and unusual in 1910. Despite this ruling, Alabama and Arizona once again began using chain gangs in the 1990s until the Supreme Court outlawed the practice again in 1996.

As a form of discipline, Alabama prison authorities chained prisoners to a high railing and forced them to stand for hours, a practice decried as torture by the United Nations. The Federal Court indicated (Gates v. Collier 501 F.2d 1291 (1974)) that this practice in Mississippi constituted cruel and unusual punishment as early as 1974. The prison system of the state of Alabama was still using this form of punishment in 1995. The Supreme Court definitively declared this practice unconstitutional in 2002 (Hope v. Pelzer 536 U.S. 730 (2002)). This indicates the prisons in Alabama continued inflicting cruel and unusual punishments on inmates for at least 21 years after the courts ruled such practices unconstitutional.

Justice Thomas (Hudson v. McMillian (1992)) argued that such treatment did not constitute cruel and unusual punishment because it was not part of a judgment. Thomas apparently believes that the treatment of prisoners, once they are sentenced and incarcerated, is of no concern to the Supreme Court. This opinion comports with the views of eighteenth century politicians, who did not intend the eighth amendment to apply to prisoners; it has no place in the present day, more than 50 years after the Universal Declaration of Human Rights (UDHR) (1948) declared that no one shall be subjected to cruel or inhuman punishment.

In 2009, Attorney General Eric Holder ordered independent prosecutor John Durham to investigate whether the CIA had used any unauthorized.interrogation tactics in the years following 9/11. Durham discovered that the CIA had destroyed 92 video recordings of interrogations, but Holder concluded that most of the subjects had never been in CIA custody. Holder thereupon closed the remaining two investigations in 2012. If these were not interrogations by the CIA, then they may have been interrogations conducted by extraordinary renditions.

Holder's opinion, hence the Obama administration's opinion, is thus that whatever happens to a prisoner of war once he is handed over to a third party cannot be blamed on the American CIA officer who handed him into hostile hands.This reluctance to prosecute Americans under the terms of the Geneva Conventions may explain why the Obama administration has not sought indictments against the politicians who planned and executed the Iraq War. The laws of the United States do not apply to non-citizens; the Eighth Amendment is not broad enough to provide protection to foreign prisoners of war. The Geneva Conventions apply equally to all nationalities, but these rules are not recognized as law in American courts, partly because of reservations made by the Americans when the accords were adopted, and partly because American courts do not recognize international law as binding.

The Constitution is Dead

Our statutes don’t morph. They don’t change meaning from age to age to comport with whatever the zeitgeist thinks appropriate. When you read Chaucer, you try to figure out what the words meant when they were put down on paper. It’s the same thing with the law. --Justice Antonin Scalia

Scalia is correct when he says the Constitution is dead. Abraham Lincoln, who loved the Constitution well, declared in his inaugural address that

no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions.

But the Supreme Court under the leadership of Justice Scalia is currently engaged in a project to change all our laws to comport with what the framers of our Constitution believed. When he is asked whether a new law is constitutional, Scalia goes directly to the text of the document. If he finds that the Constitution agrees with this new law, he approves the law. If he finds otherwise, he declares the law unconstitutional and throws it out.

Scalia is an expert interpreter of laws, but he is no literary critic. Otherwise, he would understand that every critic reads Chaucer differently. There is no absolute meaning in a work of literature. Each generation finds something different in Chaucer or Shakespeare. The new discoveries make these works of literature relevant again.

When Scalia argues that the Constitution is dead, he is arguing that we need a new document to take its place, or at least one that is completely altered. The Constitution is a fossilized relic of a bygone age. We should study it for its ideas, but we should not try to preserve them intact.

We should reform the Constitution so that it is easier to change. The framework that Justice Scalia praises so highly has broken down utterly. The Congress is so feeble that it can hardly pass a bill. The President is so powerful that he can violated the Bill of Rights with impunity, merely by declaring a war on some tiny group of people in a far corner of the globe.

The people have passed laws to repair flaws in the Constitution. Justice Scalia and his brethren strike them down. Their decision in Citizens United tells the people that they cannot decide what kind of government they want, but must accept the kind of government described by the framers. All power in the state arises from the people. If the Constitution prevents the people from making decisions based on new information, then it is the Constitution that must yield, not the people.

Nothing lasts forever. Everything eventually outlives its usefulness. The time has come to retire the Constitution and seek a replacement more suited to today.