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There's nothing wrong with America that a new Constitution won't fixby Daniel Johnson, Deputy Executive Editor
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."
(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.
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