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: Its Secret Meaning

Our Decrepit Constitution: Its Secret Meaning

The Framers of the Constitution came from the English tradition of common law. Under common law, laws are not written but deduced from similar court cases. An important concept in common law is stare decisis, which requires the court to follow tradition, so that if a court decides a case a certain way, it will be bound by its own prior decision.

A problem arises when a court, especially the Supreme Court, is not bound by its prior decisions. The Supreme Court, in Bush v. Gore (2000), rejected previously settled law by overturning the ruling of the Florida Supreme Court. The majority of the Court decided that the Florida Supreme Court did not have the right to interpret Florida election law. This contravened the judgment in Marbury v. Madison (1803), which ruled, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” The Republican majority of the court thus overruled a decision that had stood for nearly 200 years to elect the presidential candidate of their party.

The Supreme Court, in Citizens United v. FEC, overturned 100 years of precedent upholding the Tillman Act (1907) which limited corporate contributions to political campaigns. In doing so, the Court found that the campaign finance law violated the First Amendment, something which was not mentioned in the original claim. The Court thus gave itself authority to rule a law unconstitutional without having a representative case brought to its attention. The Court's failure to abide by its own earlier decisions struck a blow against the means by which the law does not change erratically but in a principled and intelligible fashion.

The result of these rulings was a critical wound to public confidence in the Supreme Court in particular and the law itself in general. State legislatures have begun passing bills that obviously contradict Supreme Court decisions and Constitutional Amendments. The Kansas legislature yesterday passed a bill that defines life as beginning at fertilization and bans abortion based on fetal gender altogether. These provisions of the new bill patently violate the Supreme Court's ruling in Roe v. Wade (1973). Several other states have passed similar laws limiting the availability of abortion. All of these laws presume that the Supreme Court will overturn a ruling it made 40 years ago. The Court will do this not because of any change in technology or public sentiment, but simply because it does not agree with the earlier decision.

Another provision of the Kansas bill prohibits Planned Parenthood from teaching sex education in the public schools. Supporters of such laws do not claim that Planned Parenthood gives false information in their classes. State Rep. Bette Grande (R-Fargo) introduced a similar bill in North Dakota. Rep. Grande said that Planned Parenthood was not part of the way business was conducted in her state.

This state of affairs has been brought about by the Supreme Court's attempt to set itself up as the supreme branch of government, which may at any time decide to strike down reasonable laws made by legislatures or decisions made by other courts for the simple reason that this court, for obvious political reasons, disagrees with them. The Courts decisions may be described as obviously political because observers can predict which way individual justices will rule based on their political affiliation alone.

The situation resembled the state of affairs in Japan before the issuance of its constitution in 1868. The Japanese lords made legal decisions without consulting precedent or legal codes because there were none. Japanese subjects had to obey the lords because there was no appeal from an arbitrary or unjust decision. The Supreme Court seeks to institute just such a government, where laws are not made by the people, but by Supreme Court Justices, who, like the prophets of the Old Testament, reveal the secret meaning of the Constitution.

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.