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Feb-07-2012 22:06printcomments

There's nothing wrong with America that a new Constitution won't fix

A visitor to earth, watching the 192 UN member states march into the future, might well say: "Look! Everyone is out of step, but the United States."

U.S. Constitution, page 1

(Calgary, Alberta) - To the end of his life, Albert Einstein’s best friend at the Institute for Advanced Study at Princeton was the mathematician and logician Kurt Gödel. In 1947, when Gödel was about to go through his citizenship hearing, he revealed to Einstein and economist Oskar Morgenstern, that he had discovered flaws in the Constitution that would make it possible for the U.S. to become a dictatorship. His friends cautioned him to not raise the issue during the hearing, lest it harm his chances to become a citizen.

Three years later, Isaac Asimov, one of the world’s most prolific writers (450+ books), published his novel The Stars Like Dust—. Horace Gold, editor of Galaxy, liked it and, before publication, wanted to serialize it in his magazine.

The only catch was that Horace wanted me to introduce a new element of suspense. Everyone would be looking for a mysterious document, which would turn out at the very end to be a copy of the United States Constitution.

I objected very strongly to that, saying it was corny and downright unbelievable. No one could suppose that an instrument of government suitable for a primitive nation forming a small part of a single world would be suitable for a stellar federation.”

Asimov was told that he could take that part out for the book publication but his editor at Doubleday agreed with Gold. "'That sounds great. We’ll leave it in the book version, too.' And he did, which is the chief reason why The Stars Like Dust— is my least favorite novel.”

A few years after that, in the 1950s, Chief Justice Earl Warren said that, in his view, if the Bill of Rights were put forward then, it would be unlikely to pass. This, recall, was the Joe McCarthy era and near the height of America’s fear of communism.

As Ferdinand Lundberg noted in 1968 (The Rich and the Super Rich):

"It is doubtful that more than a small minority of Americans favor it. For Americans, of all Western peoples, are most committed in the grass-roots mass to the general denial of civil liberties to dissenters, outsiders and deviators. No doubt owing to the general insecurity of their social position, most Americans are rigidly and narrowly conformist, quick to smell out heresies... Whereas in other countries the secret police are invariably unpopular, in the United States the FBI and CIA have generally had the standing of folk heroes—-mute testimony to the superior effectiveness of American propaganda methods and to the trend of popular feelings.”

The politicizing of the Supreme Court

In a July 3, 2008 editorial, the New York Times wrote that

the key to understanding the [just completed] term lies in the fragility of the court’s center. Some of the most important decisions came on 5-to-4 votes—a stark reminder that the court is just one justice away from solidifying a far-right majority that would do great damage to the Constitution and the rights of ordinary Americans”.

If Barack Obama had not won the presidency in 2008 and a president John McCain had been able to make two appointments, (instead of Elena Kagan and Sonia Sotomayer who Obama appointed), McCain would have appointed right-wing Justices and the state of America today, would be well on its way to becoming significantly different. The editorial concluded that, with even just one more conservative Justice:

the court [could] be expected to push even further in a dangerous direction. It would most likely begin stripping away civil liberties, like the habeas rights vindicated in the Guantánamo case. The constitutional protection of women’s reproductive rights could be eliminated. The court might well strike down laws that protect the environment, workers’ rights and the rights of racial and religious minorities.”

In other words, the so-called rights that people have, or believe they have, under the Constitution depends entirely on the make-up of the Court. And therein lies the real danger. The inscription on the wall of the Supreme Court Building, from Marbury v. Madison, (1803) by Chief Justice John Marshall:

It is emphatically the province and duty of the judicial department to say what the law is.

The American people, in electing Barack Obama, unwittingly dodged a bullet.

Until the 1980s, the Court was largely non-partisan. But, in a study by the Vanderbilt University Law School (2009), former federal court of appeals judge J. Michael Luttig wrote:

"As law has moved closer to mere politics, political affiliations have naturally and predictably become proxies for the different political agendas that have been pressed in and through the courts".

David J. Garrow, professor of history at the University of Cambridge, went further, saying that the Court was beginning to mirror the political branches of government.

"We are getting a composition of the clerk workforce [those who do the initial drafts for the Justices] that is getting to be like the House of Representatives. Each side is putting forward only ideological purists."

Put succinctly: in America today, Justice is no longer blind, but has become intensely political. The checks and balances that citizens believe are the strength of the American system of government no longer exist.

The Constitution in 1987

The Constitution of the United States is not only long in the tooth, it’s positively geriatric. In 1987, Joseph Magnet, a law professor at Canada's University of Ottawa said: "America has been and remains the great constitutional laboratory for the entire world." That was then; this is now.

At the time, 160 out of 170 nations in the world had constitutions based on the U.S. model.


David S. Law (Washington University in St. Louis) and Mila Versteeg (University of Virginia) have completed a study to be published in the June 2012 New York University Law Review. They analyzed 729 constitutions, adopted by 188 countries over 60 years (1946 to 2006), noting that

Among the world’s democracies constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution, only to reverse course in the 1980s and 1990s.

Democracies today have, on average, constitutions that are less similar to the U.S. Constitution than they were at the end of World War 2. The main reason for this, says Professor Law, is that the world has advanced from the 18th century in terms of constitutional ideals and expectations. He uses an apropos analogy:

Nobody wants to copy Windows 3.1.

In a February 2012 interview, Supreme Court Justice Ruth Bader Ginsburg said “I would not look to the United States Constitution if I were drafting a constitution in the year 2012.” Instead she would recommend the Canadian Charter of Rights and Freedoms, the South African Constitution, or the European Convention on Human Rights.

By current international standards, the U.S. Constitution has fewer rights with a constitution frozen in amber, and the current members of the Supreme Court want to keep that amber intact and seemingly return America to the 18th century (Windows 2.0), arguing for interpretations that the original framers might have intended, but seen through the interpretive eyes of 21st century people.

In today’s world, nations replace constitutions on average every 19 years. This coincidentally reflects what Jefferson wrote to James Madison in a 1789 letter where he said that constitutions "naturally expire at the end of 19 years [because] the earth always belongs to the living generation."

Unfortunately, this reality was not built into the constitution itself. On the contrary, as constitutional law professor Sanford Levinson wrote in his book Our Undemocratic Constitution (2006): “The U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” The result is that contrary to what most citizens believe they are hamstrung by their own constitution. For an example of this, just look to the Equal Rights Amendment (ERA) which was first proposed in 1923 and it was 1972 before both Houses passed it. It then went on to the states, which did not get enough ratifications to be adopted.

Although the Constitution provides some important protections other constitutions lack, it is out of step with the rest of the world in failing to protect, at least specifically, a right to travel, the presumption of innocence and entitlement to food, education and health care. This last is particularly egregious when 50 million Americans lack adequate health care and tens of millions of their fellow citizens are fighting to prevent them from gaining what they themselves have—trying to argue that so-called Obamacare is unconstitutional.

As conservative Patrick N. Allitt, Cahoon Family Professor of American History at Emory University and author of The Conservatives: Ideas and Personalities Throughout American History argues, liberals are

“justified in favoring a national health care system. Just as we regard it as reasonable in a wealthy society to offer everyone twelve years of education at government expense, in the belief that the society as a whole will benefit, so we should take steps to make sure everyone is reasonably healthy.”

American Exceptionalism 1

One thing that is demonstrably exceptional about America is its Second Amendment. On this point there are only two other nations in the world who allow its citizens to freely bear arms: Guatemala and Mexico—not exactly a ringing endorsement for the practice. It is, rather, a pretty clear indication of America’s lack of progress when many of its citizens worship an 18th century concept as if it’s politically sophisticated.

As Allitt concludes:

Liberals are right to favor gun control--in my view the more the better....Conservatives ought to feel a sense of outrage that citizens can so easily kill one another

American Exceptionalism 2

There is a struggle going on today within the Supreme Court as to whether they should cite decisions from foreign courts--an extension of American Exceptionalism—the fantasy that the United States doesn’t need to learn anything from anyone else. Eric Posner, professor of law at the University of Chicago says that

American exceptionalism, the view going back 200 years is that we’ve figured it out and people should follow our lead....We are used to encouraging other countries to adopt American constitutional norms, but we have never accepted the idea that we should adopt theirs.”

From 1990 through 2002 the Canadian Supreme Court cited decisions of the United States Supreme Court about a dozen times a year; since, the annual citation rate has fallen by half, to about six. Australian state supreme courts cited American decisions 208 times in 1995, according to a recent study by Russell Smyth, an Australian economist. By 2005, he says, the number had fallen by nearly two thirds, to 72.

In Lawrence v. Texas, the 2003 decision striking down a Texas law making homosexual sex a crime, Justice Kennedy cited three decisions of the European Court of Human Rights, noting that homosexual conduct was accepted as “an integral part of human freedom” in many countries."

Here is one of the worst aspects of American Exceptionalism: In a dissent, Justice Antonin Scalia, wrote

The basic premise of the court’s argument--that American law should conform to the laws of the rest of the world--ought to be rejected out of hand."

On this point, said Justice Kennedy at a judicial conference in July 2011

There’s kind of a know-nothing quality to the debate, it seems to me, of being suspicious of foreign things.

Most Justices of the United States Supreme Court do not cite foreign case law in their judgments,” wrote Aharon Barak in 2002, then the chief justice of the Supreme Court of Israel. “They fail to make use of an important source of inspiration, one that enriches legal thinking, makes law more creative, and strengthens the democratic ties and foundations of different legal systems.”

Foreign courts in developed democracies today often cite the rulings of the European Court of Human Rights in cases concerning equality, liberty and prohibitions against cruel treatment. The United States is no longer the gold, or even the silver, standard.

Justice Michael Kirby of the High Court of Australia said that his court no longer confines itself to considering just English, Canadian and American law. “Now we will take information from the Supreme Court of India, or the Court of Appeal of New Zealand, or the Constitutional Court of South Africa,” he said in an interview in 2001 in The Green Bag, a legal journal.

“America is in danger of becoming something of a legal backwater.” With men like Scalia on the bench the further decline of America can only accelerate.


Born and raised in Calgary, Alberta, Daniel Johnson as a teenager aspired to be a writer. Always a voracious reader, he reads more books in a month than many people read in a lifetime. He also reads 100+ online articles per week. He knew early that in order to be a writer, you have to be a reader.

He has always been concerned about fairness in the world and the plight of the underprivileged/underdog.

As a professional writer he sold his first paid article in 1974 and, while employed at other jobs, started selling a few pieces in assorted places.

Over the next 15 years, Daniel eked out a living as a writer doing, among other things, national writing and both radio and TV broadcasting for the CBC, Maclean’s (the national newsmagazine) and a wide variety of smaller publications. Interweaved throughout this period was soul-killing corporate and public relations writing.

It was through the 1960s and 1970s that he got his university experience. In his first year at the University of Calgary, he majored in psychology/mathematics; in his second year he switched to physics/mathematics. He then learned of an independent study program at the University of Lethbridge where he attended the next two years, studying philosophy and economics. In the end he attended university over nine years (four full time) but never qualified for a degree because he didn't have the right number of courses in any particular field.

In 1990 he published his first (and so far, only) book: Practical History: A guide to Will and Ariel Durant’s “The Story of Civilization” (Polymath Press, Calgary)

Newly appointed as the Deputy Executive Editor in August 2011, he has been writing exclusively for Salem-News.com since March 2009 and, as of summer 2011, has published more than 160 stories.

View articles written by Daniel Johnson

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Anonymous February 10, 2012 6:17 pm (Pacific time)

The present world order was largely shaped by American power and reflects American interests and preferences. If the balance of power shifts in the direction of other nations, the world order will change to suit their interests and preferences. Nor can we assume that all the great powers in a post-American world would agree on the benefits of preserving the present order, or have the capacity to preserve it, even if they wanted to. Take the issue of democracy. For several decades, the balance of power in the world has favored democratic governments. In a genuinely post-American world, the balance would shift toward the great-power autocracies. Both Beijing and Moscow already protect dictators like Syria's Bashar al-Assad. If they gain greater relative influence in the future, we will see fewer democratic transitions and more autocrats hanging on to power. The balance in a new, multipolar world might be more favorable to democracy if some of the rising democracies—Brazil, India, Turkey, South Africa—picked up the slack from a declining U.S. Yet not all of them have the desire or the capacity to do it. What about the economic order of free markets and free trade? People assume that China and other rising powers that have benefited so much from the present system would have a stake in preserving it. They wouldn't kill the goose that lays the golden eggs. Unfortunately, they might not be able to help themselves. The creation and survival of a liberal economic order has depended, historically, on great powers that are both willing and able to support open trade and free markets, often with naval power. If a declining America is unable to maintain its long-standing hegemony on the high seas, would other nations take on the burdens and the expense of sustaining navies to fill in the gaps? Do the Chinese really value an open economic system? The Chinese economy soon may become the largest in the world, but it will be far from the richest. Its size is a product of the country's enormous population, but in per capita terms, China remains relatively poor. The U.S., Germany and Japan have a per capita GDP of over $40,000. China's is a little over $4,000, putting it at the same level as Angola, Algeria and Belize. Even if optimistic forecasts are correct, China's per capita GDP by 2030 would still only be half that of the U.S., putting it roughly where Slovenia and Greece are today. China's leaders, presiding over a poorer and still developing country, may prove less willing to open their economy. They have already begun closing some sectors to foreign competition and are likely to close others in the future. Another problem is that China's form of capitalism is heavily dominated by the state, with the ultimate goal of preserving the rule of the Communist Party. Unlike the eras of British and American pre-eminence, when the leading economic powers were dominated largely by private individuals or companies, China's system is more like the mercantilist arrangements of previous centuries. The government amasses wealth in order to secure its continued rule and to pay for armies and navies to compete with other great powers. There was nothing inevitable about the world that was created after World War II. No divine providence or unfolding Hegelian dialectic required the triumph of democracy and capitalism, and there is no guarantee that their success will outlast the powerful nations that have fought for them. Democratic progress and liberal economics have been and can be reversed and undone. The ancient democracies of Greece and the republics of Rome and Venice all fell to more powerful forces or through their own failings. The evolving liberal economic order of Europe collapsed in the 1920s and 1930s. The better idea doesn't have to win just because it is a better idea. It requires great powers to champion it. If and when American power declines, the institutions and norms that American power has supported will decline, too. Or more likely, if history is a guide, they may collapse altogether as we make a transition to another kind of world order, or to disorder. We may discover then that the U.S. was essential to keeping the present world order together and that the alternative to American power was not peace and harmony but chaos and catastrophe—which is what the world looked like right before the American order came into being.

Anonymous February 10, 2012 12:25 pm (Pacific time)

I did read it. Thus my comment: "...understands little of a country that finds both distasteful." Who is your reading audience Daniel? You come from a country that we literally dwarf economically and in population. Your consistent theme is to demean America, but you mostly demonstrate an inability to provide a consistent and logical thesis worthy of intellectual debate. Could this be a trait that your past instructors pointed out, e.g. , you have somewhat disjointed thinking? You cherry-pick out various comments from others that you think support your thesis, but you fail to understand that there are causal variables antecedent to those comments. Ergo, you simply fail to demonstrate anything beyond a childish pettiness. America will be around long after Canada disappears, eventually into our body politic. Poll after poll shows that the American voter is over 40% conservative (and growing), while liberals are at 18% and trending down. Even diehard union members are over 45% on average conservative and trending more that way. So your audience is who? Malcontents, and that is also a diminishing population. It must be tough living in the Alberta Province, which is more conservative than Texas. I live in an area where nearly everyone has a concealed handgun license and our area has one of the lowest crime areas on the whole planet. There are over one million of us in a relatively small radius. We have far left liberals who move here, and in short order, they either move away or change their ideology to one of common sense. Very few leave Daniel. Same thing is happening in Canada, even though your majority population growth is via immigration. That will in time cause considerable grief in several of your urban areas, but not in Calgary/Edmonton.

Rather than try to respond piecemeal to your comments, I'll do a follow up article based on what you've said. Okay?

Anonymous February 10, 2012 9:23 am (Pacific time)

The Founders of this great nation left Europe in order to create a diffent society. A society dedicated to and constricted by a written constitution. The dream was to create a more perfect union stabilized by a written guarantee of personal freedoms. Freedoms not subject to politics of the day or preferencees of the current governing party, but only changeable by an arduous process subject to the will of all the people. It is very unlikely that process will ever change, even though the current administration is trying very hard. In time the legal system will be dealing with them. Many in Europe and in other countries still likes kings and bureaucrats and understands little of a country that finds both distasteful. In addition it has been found there was little correlation between the strictness of handgun regulations and the level of gun-related crime abroad. Japan has some of the toughest gun ownership laws in the world, while Switzerland requires all males serving the armed forces to store their rifles (many are fully automatic) and ammunition in their homes in case of attack. Yet both have among the world’s lowest rates of gun-related deaths. Australia adopted tougher gun laws and offered to buy back private guns in the wake of a 1996 incident in which a lone gunman killed 35 people in the state of Western Australia. But a recent survey by the Perth Today newspaper found that Western Australia today has more guns in private hands than in 1999, when the new restrictions were imposed.

Only two things I can say:

1. You didn't atually read the article, did you? or

2. You're in serious denial.

The founders you mythologize were British citizens and the colonies had been part of the British Empire for more than a century. They just resented the distant overlords, even though they, themselves, were part of the 1% of the day.

Anonymous February 9, 2012 6:31 pm (Pacific time)

I recall a movie some time ago...

You're posting under multiple names which is a no-no, so bye bye...

stephen February 9, 2012 3:02 pm (Pacific time)

Hey Daniel..You are soo much organized than I am! But I do remember reading books from the elite Kissinger/Zybrinski/Alinski etc. They said all this was going to happen decades ago. Its crazy, its like knowing the future or something. George Bush: the constitution is a GD peice of paper, obama disses the constitution with every word that comes out of his mouth, the new york times did a hit piece on the constitution, and now your article. I knew this was coming 20 years ago.. But guess what? It doesnt matter anymore..Please take time to read this article Daniel. It is of my opinion it is the article of the year, and I totally believe it is true. Thats is why I dont care if people put down the Constitution. Its gone way past that..here is the article, and watch and see, it will happen. http://disquietreservations.blogspot.com/2012/02/beware-ides-of-march-in-2012-double.html

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