The piece we are looking at today is a modern commentary and analysis of the Constitution. Last class we spent more time looking at the historical context of the Constitution itself, as well as the Federalist Papers, which was also a commentary on the Constitution, and considered still be the most authoritative interpretation of the Constitution.
In today's piece which is taken from The New York Times, several prominent scholars give their analysis over controversial or problematic aspects of the Constitution. In many regards most of what the contributors suggest would seem to be fairly radical changes to the Constitution, of course in the past, such changes have occurred.
The first commentary by Jamal Greene, questions whether to create term limits for federal judges, as he says:
In a democracy, no one person should wield so much power for so long. Article III of the Constitution provides that federal judges “shall hold their offices during good behaviour.” In practice this language means they serve for life absent voluntary retirement or impeachment. Were we to draft the Constitution today, we would be wise to reconsider this provision.
His reasoning for this seems to rest on two main points: one, he argues in some cases judges simply become too old to effectively render judgements in cases, something which requires a person to be at the peak of their mental faculties. Two, he argues that life-term appointments makes the selection process of judges too political. Federal judges are nominated by the President, but approved by the U.S. Senate. Over the last 20-25 years this process has become incredibly complicated due to the inability of opposed political parties to come to agreement (you might remember the Gallup piece from a few weeks ago which pointed to polling data which supports this).
He argues that the example of other countries that have term limits or mandatory retirement ages might be a good example, and seems drawn to the idea of an 18-year term. 18 years is by any standard a long-term in office, but many would still be opposed to limiting the terms of judges.
The second piece by Rachel Barkow, looks at the eight amendment of the Constitution and how it might relate to the current problem of imprisonment in the U.S. Despite the repeated claims to being the land of the free, the U.S. leads the rest of the world in the number of people in prison, which as she points out is made up of significantly larger portions of minority groups in the country. Certainly the profit motive is still alive and well at least, because running prisons has become a profitable industry as of late, led by corporations like the Corrections Corporation of America (CCA) which also lobbys the government for longer prison terms and less leniency, not because it feels threatened by criminals, but because shorter prison terms would mean less business. The U.S. is also the third largest in terms of the number of executions carried out by the justice system behind only Saudi Arabia and China.
Barkow looks to the Eighth Amendment to the Constitution, or what we refer to as the Bill of Rights (the first ten amendments) which bans the use of "cruel and unusual punishment." Putting aside the idea of executions which she does not go into, but obviously would be opposed to, she argues that the prohibition against cruel and unusual punishment should prohibit excessively long prison sentences as well:
As I have suggested elsewhere, clarifying and expanding the Eighth Amendment could help. It should specifically state that excessive terms of incarceration are prohibited, just as it bans excessive fines. It should expressly prohibit mandatory sentences so that every case gets the benefit of individualized attention by a judge. And it should insist that legislatures create a record showing that they considered empirical evidence about the law's likely impact.It is important to see that before any action can be undertaken, there must be some groundwork for this action in the Constitution. In this case she argues that the Eighth Amendment lays the groundwork that would make the movement towards shorter prison terms a legitimate, and legal course of action.
The third piece by Akhil Reed Amar, looks at the limitations on naturalized citizens for holding office, specifically the President. The Constitution states that only citizens born in the U.S. are eligible to be President of the U.S., as he says:
But those American citizens who happen to have been born abroad to non-American parents — and who later choose to become “naturalized” American citizens — are not the full legal equals of those of us born in the U.S. True, naturalized Americans have always been allowed to serve as cabinet secretaries, Supreme Court justices, senators and governors. And at the founding, anyone already a citizen could be president, regardless of birthplace. (Alexander Hamilton, for example, though born in the West Indies, was fully eligible to serve as president under the Constitution he himself helped draft.) But modern-day naturalized citizens are barred from the presidency simply because they were born in the wrong place to the wrong parents.We can look back to the readings from Bourne and Chesterton and relate their views on transnationalism or as Chesterton called it the "the nationalization of the internationalized" to this restriction. Do you think Bourne and Chesterton would be in favor of lifting this restriction? Do you think it is fair to continue this restriction, or should any citizen regardless of birth be eligible to one-day become President of the U.S. On a related note, the bizarre obsession with the current President's birthplace relates to this, if the President were born in Kenya as many on the political right-wing suggest, then he would be ineligible to be President. Of course in this case, the racial overtones of this so-called argument are obvious.
The fourth piece by Elizabeth Price Foley argues for the importance of federalism. Federalism is a doctrine which explicitly divides the power of government between the center (or federal) government and regional states which retain some independence and autonomy from the center. Some other countries have what is called a unitary government where the top-level of government appoints all the lower levels as well, thus power and control is in the hands of the top government officials. In our country, the governor of New York for example has certain freedoms to act that the President and Congress cannot limit. In practice, however, especially in recent times the extent and influence of the federal government has increased, mainly as a result of the influence the federal government has in directing funds for the states in multiple areas like education or even to maintain roads.
Foley argues that this expansion of government power threatens the idea of federalism which the Constitution is based on:
Federalism isn't about states' rights. It's about individual liberty. The Supreme Court emphasized this in Bond v. United States (2011): "By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake." And lest you think this emanates from the court's right wing, Bond was unanimous.
As the last line indicates however, this view has increasingly become seen as more of a conservative or right-wing opinion. She goes on to point out how the Supreme Court had recently ruled against certain aspects of the health care law that would force state governments to act. Again, think back to the Gallup poll, which showed that when the opposing party is in power, people on the other side favor greater restrictions on government power. If a Republican government was in office today, would conservatives still argue for federalism as strongly as they are now?
The fifth piece by Alexander Keyssar argues to abolish the electoral college. We know the President is not elected through a direct popular vote, but is chosen by electors equal to each states representation in Congress, meaning that elections are decided on a state by state basis. This is one of the more well known and controversial aspects of the Constitution today. As he says:
Moreover, we have learned a lot in the last 225 years about shortcomings in the framers’ design: the person who wins the most votes doesn’t necessarily become president; the adoption of “winner take all” rules (permitted but not mandated by the Constitution) produces election campaigns that ignore most of the country and contribute to low turnout; the legislature of any state can decide to choose electors by itself and decline to hold an election at all; and the complex procedure for dealing with an election in which no candidate wins a clear majority of the electoral vote is fraught with peril. As a nation, we have come to embrace “one person, one vote” as a fundamental democratic principle, yet the allocation of electoral votes to the states violates that principle. It is hardly an accident that no other country in the world has imitated our Electoral College.
The sixth piece by Michael Rappaport looks at the process by which the Constitution is changed. Paradoxically he argues that the process of changing the Constitution has come to a point where it is virtually impossible to change. There are two methods for changing the Constitution. The first requires that 2/3 of both houses of Congress agree to an amendment which is then sent to the states to ratify, or approve of the proposed amendment. There is a second method but is has never been used as he says:
The second method is for two-thirds of the state legislatures to call for a constitutional convention that would then propose an amendment (which, again, would have to be ratified by the states). This second method has never been used, because the state legislatures fear a runaway convention. They are concerned that if they call a convention to draft a balanced budget amendment, the convention will end up proposing an amendment on same-sex marriage or school prayer.This argument matches up well with Foley's federalist argument since it reserves a more active role for the states, again quoting his argument:
The Constitution should be changed to eliminate the possibility of a runaway convention. The best way to do this is to dispense with a constitutional convention and instead have the state legislatures agree to propose a specific amendment. But any method that allows for a working alternative to Congress’s amendment monopoly would be an enormous improvement.The seventh piece by Melynda Price deals with another highly publicized and controversial aspect of the Constitution, the "right to bear arms" in the second amendment. Price who is in favor of abolishing this right argues:
I am not naïve enough to believe that doing away with the Second Amendment would do away with gun violence, but I know firsthand the impact of guns and gun shots on children. This nation was constructed and reconstructed in the aftermath of violent and bloody conflicts. Still, the Framers believed that not only the Constitution, but also the peaceful way the document was created, would penetrate the Americans' minds and change they engaged. The Constitution would be the only weapon needed unless there was an external enemy.The eight piece by Jenny Martinez deals with the interpretation of the Constitution in a more international setting, that being how important are treaties signed with other countries in the legal process of this country. Martinez points to what is called the "supremacy clause" in the Constitution, “Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
However she addresses the often conflicting tendency of courts to ignore treaties that have been signed with other countries, as she points out:
But the Supreme Court has interpreted the supremacy clause in ways that contradict its text and original purpose; the court has suggested that the clause doesn’t mean what it says as far as treaties are concerned. One of the strangest of these decisions came a few years ago in a case involving Texas’s failure to notify Mexican citizens facing the death penalty that they were entitled by a treaty to speak to their consulate. In that case, Medellín v. Texas, the Supreme Court held that the treaty (and a decision of the International Court of Justice interpreting it) weren’t actually enforceable against Texas.The ninth piece is by Randy Barnett and concerns the Commerce clause of the the Constitution. This gives Congress the power to regulate business in the country. Barnett argues that this power also has grown too much and exceeds what it is meant for. He argues the clause should be reworded as:
"The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States."Compared with its original text in the Constitution which is much shorter (Article 1 Section 8 Clause 3): "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Is this more complex version necessary? The purpose of the commerce clause is to regulate what is called "interstate business" meaning business that goes on across state boundaries. Commerce or business that takes place wholly in one state then should be regulated by the state it is in, but again in modern times the distinctions between interstate and state commerce are blurred. This also affects the interests of many large corporations which operate throughout the country and beyond even national boundaries.
The final piece by Pauline Maier looks at the most well known part of the Constitution, the first amendment to the Bill of Rights. However she argues that the wording of the text is flawed and argues it should be expanded on:
“Congress shall make no law” is a peculiarly stingy way to begin an amendment that protects the rights of conscience, speech, press, assembly and petition. James Madison proposed more capacious language for those rights. He would have said, for example, that “the civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.” He would also have stated that “the people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”She argues that this would clearly separate the protections giving to people and to corporations which also appeal to first amendment rights to justify lobbying the government.
These authors represent different political perspectives and isolate different problematic areas of the Constitutions which continue to be debated in the present. Some call for new interpretations of how we understand our rights, others for re-wording or altering certain parts of the text, others still call for getting rid of what they see as outdated features of the Constitution.
People often say that the Constitution is a "living document" meaning that it changes and adapts itself to fit the needs of the era. These writers and others suggest several ways in which the Constitution can be adapted.
The midterm will also be taken online, 3/7 on Blackboard. The exam will be posted under Content and will be available until midnight. The exam will consist of five short answer questions dealing with one or more of the themes we have gone over in class: Power, Citizenship, and the Constitution. If you have kept up with the readings and online lectures you should have no problem with the exam.
Assignment Due 3/7 : Choose one of the authors from the New York Times article and choose a quote from one of these authors. Write out the quote and the meaning of it, and explain why you chose this quote.