How to change the Constitution without rewriting it
88Keep off the turf!
The recent passage of the FISA (Foreign Intelligence Survellience Act) legislation raises important questions about the Constitution and Constitutional law. The law seeks to allow the administration the freedom to bypass the legal checks and balances when spying. It allows wiretaps, and other activites that undermine the fourth amendment right to be secure in your papers. In the name of security, the Constituion is being overridden. How does the Constitution managed to keep being ignored or circumvented?
With the passage of the FISA act, many are wondering whether the Constitution continues providing protection and security of rights. There are concerns about the government abiding by the Constitution. The Constitution was meant to limit the government and its powers, although it has often found ways around it. Rather than re-write the Constitution or amend it, the central government often 'finds' new interpretations, readings and meanings of the document. Let's explore how the Constitution is often changed in meaning without it being changed physically.
It is always dangerous for the common man to allow lawyers to write the laws. It is always dangerous for the lawyers when a layman begins studying and addressing issues of law. As a profession, lawyers protect their turf and resent when laymen start studying and addressing legal matters. Much like any profession dislikes people on their turf, lawyers are exceptionally territorial when in comes to the law and legal cases. The Constitution as a body of law has been one that has been surrounded by controversy from its inception. It came into being as a result of debate between those putting the document together. The following are my observations on the Constitution, history and how it has been changed.
My how things have changed
There have been massive debates over what the document means and what kind of document it is. Various schools of interpretation have developed in dealing with the body of law contained in the Constitution. Although the founders provided the body of law, they did not provide written instructions on how to interpret its meanings. It was assumed that people would be able to read it and apply it using the standard legal procedures used at that time.
For example, when the Constitution was written, landowners had allodial title to their land. Alodial title meant no taxes or government encumbrances at all. The founders, especially James Wilson ( a Supreme Court Justice) believed that it would be tyranny to have it any other way. In the post –Lincoln United States, landowners must pay property taxes (encumbrances) on their land or the land is confiscated. Although such a model is Marxist, most Americans have accepted it as the status quo. Much like changes in property ownership, other changes have occurred in the Constitution and have been accepted as ‘status quo’, when the document and its writers never mentioned it.
Since the time of its founding, there have been changes in how law is applied to situations. Over time, the various Supreme Court interpretations of the law have changed even though the document itself has not changed other than having amendments added.
"The government was set to protect man from criminals, and the Constitution was written to protect man from the government."
-- Ayn Rand
"The Constitution is not our governing document. Its essential features ceased to be binding, relevant, or even recognised long ago."
-- Clyde Wilson
Links on the Constitution and its Interpretation
- Should the President interpret the law?
One of President Obama's advisers believes that the President and not the federal courts should interpret what the law means. - Regulatory Czar wants new Consitution by 2020
Cass Sustern seeks a new Rill of Rights by 2020 by changing the interpretation of the Constitution. - Comparison of Hamilton and Jefferson on reading betwen the lines
- Jury Nullification: History, questions and answers about ...
- Jury Nullification
- Jury Nullification
- FOXNews.com - Justice Often Served By Jury Nullification - Opinion
- Jury Nullification and the Rule of Law
- We need a new Constitution - Los Angeles Times
The presidential candidates are offering prescriptions for everything from Iraq to healthcare, but listen closely. Their fixes are situational and incremental. Meanwhile, the underlying structural
Ways used to change the meanings of the Constitution
Reading between the lines
One of my favorite anecdotes concerns when Alexander Hamilton claimed that when he read the Constitution ‘between the lines’ he saw a place for a national bank. When Thomas Jefferson, who wrote some of the document was told about that, his reply was “when I look between the lines of the Constitution, all I see is blank space”.
So even going back to the men who wrote it, there were those who attempted sneaking in meanings and interpretations. There were also those who wanted the document to stand on its own, with what is says is what it means.
Perpetual Union (Adulterating)
Another wild one is the ‘perpetual Union’ myth. The Articles of Confederation were stated as being ‘perpetual’. When the delegates from the States gathered to form a new system of government, they wrote the Constitution. It did not have the term ‘perpetual’ in it. It was not an issue until the Southern States wanted to leave the marriage known as the Union, that some of the scholars applied the ‘perpetual’ phrase from the Articles of Confederation and imposed it on the Constitution. This new mixing of the two documents formed the position that scholars used to then interpret the Constitution. Lincoln also did something similar with the Gettysburg address, when he melded ideas from the Declaration of Independence with the Constitution and ended up adulterating the meanings.
Living Document
Another way the Constitution has been changed is to call it a living document. By referring to it as a living document, the judges can change and alter the meanings to fit whatever situation is called for. By changing the meaning, they do not have to alter the document or pass amendments to change it. An example of the living document is the ‘privacy doctrine’. Although the judges dealing with the Roe v. Wade case claimed that the 14th amendment has embedded in it a right to privacy, which was the basis for that ruling, with the FISA law and the Patriot Act, we no longer have that same right to “privacy” when it comes to other aspects of our lives.
The term “judicial activism” is often used in association by those who refer to the Constitution as a ‘living document’. In these cases, the judges make interpretations as to what the Constitution means thereby bypassing the hassle of having to obtain legislation. A clear case of judicial activism was the Ruiz case in Texas where Justice William Wayne Justice totally changed the Texas penal system based on his interpretation of the Constitution.
What the public often does not realize is that whenever there is a trial, the accused and the law are both on trial. Judges often maintain strict control of the charges to the juries and the ‘interpretation’ of the law. Judges are often very explicit concerning how you are to use their interpretation and not to think for yourself. Part of the reason for this is to prevent the public via the juries from overturning laws in existence.When juries take action, it is known as "jury nullification".
Ignore it/Selective Enforcement
Since the executive branch of government is responsible for the enforcement of the law and the Constitution, it can change the meaning of the Constitution by selective enforcement. When only selected laws are enforced and others ignored, it can effectively change the meaning of the document itself. When community activists in Berkley spoke out against a housing project planned for their community, they were slapped with threats of $100,000 fines for opposing the project, since it was a violation of the civil rights of those persons who would be occupying the project. In this case the federal government chose to enforce civil rights over constitutional rights to free speech. By selectively enforcing which laws and regulations are enforced, the meanings are altered.
In summation, it is unlikely that the ‘perpetual’ Constitution will be rewritten based on the FISA rules. In all likelihood, some method of changing the meaning of the Constitution will likely occur, such as those listed above.
Author Tom Woods on "How the Executive Branch interprets the Constitution"
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Comments
I took the approach of ways to change the Constitution without amending it. It is likely that the government will change the interpretation of the Constitution rather than re-writing it. The Constitution is supposed to protect the people when it is enforced and upheld as the law of the land. When the part of the government that is supposed to enforce it is undermining it, there are problems.
It does not surprise me that there are some serious inquiry into "official" versions. Inquiries into the "official" versions have shown new evidence on the Sinking of the Maine, the Gulf of Tonkin and Pearl Harbor as well. Each of these incidents were used as justification for military action, yet a closer examination shows that there were some significant questions with the 'official' story.
There are numerous examples of this country's failure to follow the dictates of the U.S. Constitution. Only Congress has the power under Article I "to declare war," but this power has been abused frequently. Only the Supreme Court is given the power to interpret the Constitution. Any change not properly acted upon by the high court is not valid, although it may exist until it comes before the court. Otherwise, any change must be made through the amendment process. The president has no power to change the Constitution, but President Bush (prompted by Vice President Dick Cheney) has promoted the unitary executive theory under which he has attempted to override the Constitution. These actions do not change the Constitution although they will continue to exist until taken up by the court. It is, and always will be, necessary to interpret the Constitution to apply the law, but unless this is done by Supreme Court justices who respect the rule of law we're all in lots of trouble. Only changes in the Constitution that are duly constituted are proper and irreversible, except by the court itself.
William F.Torpey,
You are definetly up on your Consitution as we all should be. I am amazed at how many ways administrations have found to 'run around' the Constitution rather than following it. At present the 'natual citizenship' and electoral college are under scrutiny. It is my hopes that people stick with the Constitution rather than going arund it, changing the meaning or tinkering in any way. THere are some wise chekcs an dbalances within in when it is followed.
I, too, am opposed to tinkering with the Constitution, J D Murrah. In fact, I have a number of hubs touching on the subject. Thanks for keeping this issue alive.
Wiiliam,
Thest times are some of the most dangerous that the Constitution has ever faced. Some of the issues at stake are critical. The mindset that exists in some governmental agencies is that the Constitution can only be understood by the government. It is as if the Constitution is now off limits for the layman to read an figure out what it says themselves. Since the Constitution protects us from big government, we best know what it says. I will check out some of your Constitutional hubs.
JD
I have only been on the hubpages for 5 weeks, too bad the party is over.
I found from my hubs on the law that most people just aren't interested in it.
The checks and balances that were to be provided by the Legislature, Judiciary and Executive branches has been warped for at least a century. But it got worse since the 1960s and it went faster downhill since then.
It is no longer a check and balances but a three ring circus with each branch immune from the other branches.
The 4th Amendment isn't what it used to be, nor is it what it should be anymore.
I have no problem with ferreting out the bad guys for Homeland Security but the safeguards for the innocent are missing. If you are looking for terrorist and you sidestep the 4th Amendment that is OK. But if instead of finding terrorist activity, then any of that information should be considered the fruits of the forbidden tree. Just like if you had a search warrant to find an elephant that was supposed to be in the house, you don't look through the dresser draws or the jewelry boxes.
The whole purpose of requiring an Affidavit showing probable cause shouldn't be rubber stamped and really just a fishing expedition.
The Constitution has been stretched for decades to fit the desire of the strechter. The two sentences or so concerning the Interstate Commerce Clause was even applied to a personal orchid that provided the owner with food for his family. It became a Federal issue because it purported to affect Interstate Commerce because it hurt out of state producers. Even a totally intrastate use of a telephone became the focus of Interstate Commerce. ( Sorry, this is from memory, I am too lazy to look these case up).
The probable cause core of the 4th Amendment has been loosened and tightened by the Supreme Court. Probable cause went from discrete facts to mere suspicions.
The US Constitution and all of its Amendments fit in a small book, but the interpretation of what is in that little book, fills the walls of a library.
People keep on talking about their Constitutional Rights but most of them are just parroting a phrase. The problem is that reading the original document doesn't translate into the current interpretation of the Constitution.
The Constitution as you say is a living document, but it should be kept in the context of the original. If you change the context, you change the Constitution. It is one thing as you say, to change the Constitution with the formal mechanism provided in the Constitution itself. But it is wrong for the branches to change the Constitution by the mere interpretation and edicts.
good hub
Issues Veritas,
Thank you for your thoughtful input. I also agree that the Constitution needs to be static and dependable. When laws and the interpretation of them are always changing the political, business and economic environments become chaotic very quickly. I do not think for a moment that the Constitution should be a 'living document', but rather the standard used to keep the Federal government within the boundaries that the founders intended. At present, the Federal government is "off the reservation" when it comes to adhering to the Constiution.
JD
You know, if the Constitution was not a living document, then there wouldn't be any Amendments to it. I don't necessarily disagree with that notion, would you then get rid of the Amendments or would you keep some of them.
When do you think was the last time that the Federal Government was still on the reservation? Maybe that was the reason for the 10th Amendment? The Federal Government was sliding their feet over the states and with the Supremacy Clause on their side it was hard to recognize the states through the shadow cast by the Federal Government.
just a thought.
issues veritas,
In my mind, the amendments are to serve as the adjustments to the Constitution. The founding fathers did not anticipate the use of technology and some other issues that have arisen. Part of the mess that currently exists also involves the abandonment of common law principles in dealing with legal quesitons. The Supreme Court has also not always abided by thier own precedent rulings on some matters.
In my mind, the last time it was on the reservation was probably in 1850. Many of the actions of the Federal government have been aimed at weakening and destroying the restraints placed on its power since then. Yet, being that the focus of this hub is the Constitution, I see that it was changed radically under Lincoln and then further changed in meaning under FDR. These men and the Supreme Court did much to alter the meaning of the Consitution and to alter the restraints it had on the Federal government. The central government was designed to be kept weak by the Constiution and the balance of powers. Once these were tinkered with, the restraining power was weakened.
In terms of amendments and which I would remove, the legality of the passage of the 14th and 16th amendments are bogus. These amendments were not passed by the rules set by the Constitution and are at best questionable (IMHO). The others, whether or not I like them, were passed in accordance with the Constitutional rules.
JD.
I agree with you in concept
I suspected that there were some commonalities in thought from the first post you made. Since I am not a lawyer, I may not be expressing the concepts in the proper format or terms. We both recognize that the Constitution has been stretched, to where it is often twisted in meanings, such as your example of the orchid owner and the examples of the 4th amendment. I suspect the differences arise as to what the solutions to the common problem are, and how to change it.
JD
I think that is the difference.
The Constitution a good thing made not so good.
Issues vertias-
So true, so true.
Good information. These issues need to be kept ever before us. Our system (and certainly the way of law students are taught) makes us prone to judicial activism. Amendment is the only honest way to change the Constittuion; the rest is dishonrable.
Bibowen,
Many of today's politicians want the power and authority of the Constitution, yet refuse abiding by the accountability. The men who wrote it spent more time assembling it than most modern politicians spend reading it, much less trying to understanding its intricacies. Sadly, they would rather find ways around that law, than to abide within the bounds of the law.
Comment on all of the above: Solid discussion, for which I thank you. One addition perhaps worth consideration: ANY set of rules designed to guide human behavior--not just the Constitution--is under constant attack from the instant of its birth. There are always those who seek to find advantage by slipping through the cracks, and there are always cracks. A simple though ludicrous example would be former President Clinton's evasion attempts during the Monica Lewinsky incident wherein he questioned the definition of sex.
That said, rewriting the Constitution would gain us no advantage in the long run, even if We the People could match the skill and dedication of the Founding Fathers. Political termites would begin digging into the wood of the new foundation immediately, although--as with the original--it might take a while for the structure to actually fall down flat.
Ghost32,
Although some of the brightest men of their age assembled the Constiution, in our age, some of the brightest legal minds are finding ways around the Constitution. That is not unique to this age, but occurs in every age. In the 19th century, Abraham Lincoln made at least six attempts to find ways around the Consitutution, but was stopped by Congress on those six. In the 20th century FDR made several attempts to undermine and bypass the Constituion as well.
The whole "living Constiution" crowd are activley attempting to change the law to meet thier own viewpoints. Activist judges have distorted many of the meanings of what was originally written.
I like your term "political termites". It captures how those types nickel and dime the Constiution, by changing a little here and a little there. They show that they do not understand that law is not just political, it is natural as well. Political laws enacted in variance to natural law never turn out well.
Excellent hub. I agree with JD Murrah, especially about the 14th and 16th Amendments. And you are right, they are not changing the Constitution, they're going around it - it's called Administrative Law. Admin law is an overlay on the Constitution so that any judge, any where, may interpret the law either Constitutionally OR Administratively. That way they can rule however is most politically expedient to the current powers that be.
If you get called for jury duty, ask the judge if his court's jurisdiction is Constitutional or Administrative. Just by asking the question, and thus provong your knowledge of Admin's existence, you will be dismissed.
Your name will also go on some list!
Madam X,
You are certainly more aware of the legal system than the general public. The choices made by the judge on which legal system and standards they use makes a tremendous impact on their rulings. Although lawyers are familiar with this, few lay people understand what is going on.
In terms of jury duty, I find that it depends on which type of service one is selected for. If civil court or State court, it could get one dismissed. If one is called to federal jury duty, the standards are different, and one would likely still serve thier time.
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vrajavala says:
16 months ago
Your article seems quite obtuse, I'm afraid. I'm not sure what it means. The average person seems to feel threatened now with the passage of the FISA bill. Is that what the Constitution intended? I mean isn't the Constitution there to protect the rights of the people? Now it seems also that there has been some serious inquiry by Architects and Engineers as to the veracity of the "official" version of the cause of collapse of the towers on 9/11 http://ae911truth.org This "official theory" that the plane crash and subsequent fire caused the collapse of the buildings has been called into serious question by these architects. Now the justification for FISA is the theory that 9/11 was perpetrated by terrorists. But this seems to be in serious doubt. See my previous post
http://hubpages.com/hub/911-An-Inside-Job