Designing America :- #4: Some Problems In Constitutional Wording
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There once was a man who fell
in love with and bought a two hundred year old house. It had some
problems although it was attractive, historically important and
certainly worth preserving. But, he wanted to be able to live in it, so
he added new bathrooms, built an annex for a modern kitchen and some
Of course, he needed new
plumbing, a furnace for central heating, more storage space and a
garage. Rather than keep the old house as it was for historic reasons,
the new owner made additions and modifications leaving the original
house as no more than an appendage to his improvements. The historical
interest and value were lost, hidden by the improvements. The grounds
on which the house stood had room for a second home. Building a
different home would have left the historic house as it was, but the
owner ignored that.
Over time, we seem to be doing
something like that with the United States Constitution. We cannot
bring ourselves to leave the old historically important wording and
build a more modern version on the same ground, a version that might be
more comfortable to live in. In almost every other area of human
endeavor we do not hesitate to build better mouse traps. Just compare,
if you will, the ships of the Eighteenth Century with those of today.
In which would you want to sail across the dangerous Atlantic Ocean if
you decided not to fly? Would you choose to sail for three months on an
old sailing ship with no modern conveniences, or would you prefer a
much safer modern cruise ship that would cross the Atlantic in less
than a week? We welcome new versions of airplanes, surgical tools, and
computers with enthusiasm. But blind loyalty and fear of change hold us
to our old Constitution. Perhaps we correctly fear that opening any
part of The Constitution to change would trigger a bitter and
unsolvable war between powerful special interests.
Aside from the cumbersome
amendments process, The Constitution allows for a constitution
convention, but specifies it would only be for the same purpose of
amending, not for re-writing. Other ways of improving the
wording might include what the founders succeeded in doing: hold a
convention devoted to a total re-writing of the Constitution. When The
Constitution's framers first met they threw out the old Articles Of
Confederation and started a whole new document. This, of course, would
probably be unconstitutional today. Today, that approach, aside from
its illegality, could be explosive and lead to a prolonged and
uncertain outcome. A second and very different way could be gradualism or
model-building, a re-thinking process in a series of small steps
continuing over time. I will be suggesting a model-building approach
later in this series, and I certainly do not favor a single convention
for total revision because, in the very unlikely event that one was
assembled, such a convention would probably end in disaster.
It is not for me to demand
specific changes in wording; that is a job for the voters and their
representatives. My hope would be to raise some questions and get
discussions started, so let me highlight a few problem areas.
In describing how voters will elect members of the House Of Representatives (Article I, Section 1) The Constitution tells us:
"Representatives and direct
Taxes shall be apportioned among the several States which may be
included within this Union, according to their respective Numbers,
which shall be determined by adding to the whole Number of free
Persons, including those bound to Service for a Term of Years, and
excluding Indians not taxed, three fifths of all other Persons."
We no longer have indentured servants bound for a term of years to anyone, we no longer refer to Native Americans as Indians,
and no one these days is ever counted as three fifths of a person. The
latter is taken to refer to slaves held in ownership. Also open to
question here is who or what is a citizen or free Person. Women could not vote, so one supposes that women were not free Persons, nor were they slaves. Women
were probably far too busy keeping themselves and their children
healthy and alive to have time for politics. Exactly what women were
considered to be in not spelled out; perhaps they were mere chattel,
household possession or simply taken for granted and thought to be just
mirrors of their fathers and husbands opinions. It is not even clear
that they counted for anything more the three fifths of a person or
even as persons.
In 1865 the following amendment was ratified and became law:
"1. Neither slavery nor involuntary servitude, except as a punishment for crimewhereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
"2. Congress shall have power to enforce this article by appropriate legislation."
Well, that got rid of slavery,
but the old wording in the body of The Constitution remains today. It
remains to remind of us of the bad old days. The old wording is, of
course, historically important, but its place in our Constitutions
today is insulting and inappropriate. I doubt very much that the any
majority of American citizens today would object to a revision of
wording to better reflect today's culture.
And then, in 1920, we got:
"The right of citizens of the
United States to vote shall not be denied or abridged in the United
States or by any State on account of sex
"Congress shall have the power to enforce this article with appropriate legislation."
So, by amendment, we fixed the
problem of slavery, women were referred to as citizens and females had
the right to vote. However, the old language remains in the living body
of The Constitution and cannot be erased. Such ancient thinking
deserves to be remembered, but does not belong in a document we hope
all citizens would read and appreciate for the relevance today.
If you take the time to read
the Constitution through you will find quite a few puzzling phrases,
and it will be necessary to study and understand the subsequent
amendments to see what has been cancelled, corrected or added to. As
time goes by, however, the list of amendments grows longer while the
body of the law itself become increasingly irrelevant.