Post #545 LOST HORIZONS

              America’s celebrated “Founding Fathers” oversaw success in America’s War of Independence from the British and created a new and experimental Nation, populated by citizens possessing equality of birthright. They constructed a tri-partite architecture for the operation of the new and experimental Republican Democracy and promulgated a Constitution for its operation, most significantly, prohibiting governmental infringement of the personal rights of (white) citizens. The vital subject of the moral and legal rights of black Americans, regrettably, was not on the colonial agenda of these benevolent colonial leaders. This omission, while consistent with its historical context, was an antecedent for the new Nation’s upheaval.

              This historically relevant omission, (among a plethora of unforeseen but currently relevant other matters), was cited, by us, initially, to introduce our present theme: the contemporaneous inapplicability of an outmoded, and in some cases, irrelevant, U.S. Constitution. Our conclusion was reached after many hours of agonized contemplation of our Nation’s gradual, but steady decline in quality of function, governance and standing.

               The philosophical and well- intended founders, understandably, were concerned with problems extant in their 18th Century and sought to avoid or eliminate them, viz., monarchy, privileged birth, religious intolerance and interference with governance. A ruler, chosen for a defined term, by the people, the elimination of privileged birth (“all men are created equal”), and an assurance of governmental prohibition from interference with citizens’ rights, was the antidote. An evident preoccupation with the prevention of monarchial or religious rule and the end of the phenomenon of privileged birth was their main preoccupation. Their apparent mind-set had little conception of the uncountable variety of issues to arise in centuries to come.

               Their  foundational document, the U.S. Constitution, written well before, the major advance of technology and modern industry, the moral and rational consideration of racial and gender equality, the undertaking of social responsibility by government, the exponential growth of computer and other technology, the major expansion of foreign immigration, the exponential growth of local and international travel, the expansion of international trade and affairs, the development of policies of environmental and planetary concern, the growing complications of law, civil and international, the space race and others.

               Those litigants that continue to unashamedly argue for “original intention,” (l8th Century) either have some self-interest in mind or are simply ignorant. The arguably greatest Supreme Court Justice, Benjamin N. Cardozo, articulately supported the “sociological approach” to the application of the U.S. Constitution, viz., to be interpreted, relevantly, in accordance with the changing times. A thoughtful person will agree, but, perceive that more is needed.

              The hotly contended gun regulation issue is a salient and instructive example of the damage caused by an anachronistic provision, in the frequently miscited Second Amendment of the U.S. Constitution. The supporters of the right to gun ownership claim that the clause, makes clear reference to “ peoples’ right to bear arms,” and creates an inalienable right to own guns in the similar way that the Bill of Rights (which does not, at all refer to guns), grants basic rights to the citizen. This reading of the clause is either tactical or completely ignorant and self-interested.

               It takes merely a cursory look into the context and origin of the Second Amendment, to conclude that it was not, to any extent, concerned with the right of citizens to own guns. The objective history reveals a conflict between those who favored a central government, the Federalists, and those who insisted on the separate sovereignty of the States. The sentence erroneously cited to purportedly establish a citizen’s right to bear arms is not at all relevant to citizen rights. It was inserted as a compromise between the disputant camps, consenting to a federal (central) government, in exchange for granting to each State (“the People”) the right to maintain an armed (“bear arms”) militia.

              The heated national contention is based upon either a tactical or ignorant misreading enabled by the continuance of the (now) archaic words.  Aside from this indicated (intentional, or ignorant) misreading reading of the clause, could anyone possibly support the proposition that our benign Founders would, irresponsibly, author an unlimited license for a gun toting citizenry. An elimination of this anachronistic clause, and a fair and empirical approach to the lethal subject    would, doubtless, save countless American lives.

              The contested issue of gun regulation was illustratively chosen to initiate this writing because it clearly illustrates the fundamental theme of this mini-essay: that the U.S. Constitution, created centuries ago, by its colonial authors, addressing the issues of that era, like monarchial rule and the institution of privileged birth, analogous to old shoes that do not fit the present size of one’s feet, needs replacement. The mandatory application of the general language of that dated, “buggy whip” document, on many issues, in the modern age, can be vague and subject to dispute. Since the early time of its creation, we have seen an exponential growth in computer development and electronic communication, an unprecedented growth in trade, travel, communication, scientific and medical advances, planetary and environmental  concern, growth of the nuclear family, same sex marriage, and a host of various matters, unimaginable to our colonial fathers. A contemporaneous upgrade, clarification, and recasting of our Constitution,  has become legally necessary and empirically warranted.

            Additional clarification and changes to the Constitution, which we urge are salubrious include:   

  •  The fixed and immutable four- year Presidential term ought to be made flexible, in order to avoid prolonged periods of unconscionable rule, as in the unendurable cases of Andrew Johnson, Donald J. Trump and Richard M. Nixon.
  •  The contemporary evolution of a class system, based on inherited wealth,  detracts from the democratic benefits resulting from the elimination of the European system of privileged birth, (by the Founder’s declaration that “all men are created equal”) and  may be ameliorated through the tax code and measures such as assistance with college tuition and to small business.
  •  An express, unequivocal enunciation of provisions for one-man one-vote for every American, regardless of color or ethnos,  serious criminal punishment for  voter interference,  limitations on the amount of political donation for any person or legal entity, pre-qualification of nominees for high office, especially the President, and fair election practices, to include the elimination of lobbyists. Elimination of the Electoral College whose avowed purpose was protection from the “populist mob, vulnerable to demagogic influence” and the institution of completely direct Presidential elections. Ironically, our incapable specimen of a demagogic President lost the popular vote but won, due specifically, to the vote of this arbitrary and undemocratic body. 
  • Changes to rectify the grossly unjust allocation of two Senators per State. This undemocratic and unfair Constitutional formulation gives States, like Montana and Nevada, with relatively small populations, equal representation in the all- important U.S. Senate, with populous States like New York, California and Illinois. This is clearly undemocratic and should be ameliorated.
  • To ensure the continuance of “Separation of Powers,” appointments to the Office of U.S. Attorney General and Justices of the U.S. Supreme Court, should be made, on merit, by non-partisan legal committees, fairly constituted and legally qualified.
  • The difficult procedure to amend the Constitution should be simplified on a showing of need.

The suggested changes, in our view, would remediate the need for clarification and timely relevance of our foundational document, reduce disputes and advance our foundational principles of democracy.  Thereafter, all we would need next, is [as Jefferson said] informed and intelligent citizens.

-p.

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plinyblogcom

Retired from the practice of law'; former Editor in Chief of Law Review; Phi Beta Kappa; Poet. Literature Student and enthusiast.

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