We've got more Constitutions than you may have imagined. Let's see, there's the one invented in:
1787, as modified in 1791 with the addition of the Bill of Rights.
The U.S.A. opened for business in New York City in 1789, you'll recall, after a long period of operation under the Articles of Confederation.
We officially declared independence publicly on July 4, 1776. Yesterday was our birthday, celebrated with fireworks.
Then there was some drafting time while the fighting went on, bringing the date the Articles were agreed on to Nov. 15, 1777.
Then there had to be some time for this first constitution to be ratified by the member states. occurred on March 1, 1781.
Everything takes so long to do!
So that's when we got our first Constitution, the Articles of Confederation.
That one was good enough to keep us sailing after separation from the Mother Country, Great Britain, King George III, Parliament and all those Redcoats quartered in Patriot homes with our daughters'n'all. But it turned out to be no good for trade, and the newborn nation was deeply in debt and bankrupt. We owed the Dutch, the French, the states, and a lot of private bankers and lenders. Those were brave venture capitalists, lending money to the likes of us in those days.
We could call the Articles the Constitution, Version 1.0
Let's call the 1787/1791 version, the one in the Framers' minds Version 2.0 and Ver. 2.1, with the Bill of Rights. This was good to get us going but it stunk in other respects, for in order to get us going the North had to compromise with the South to look the other way on slavery and the slave trade, which are two different issues. You could prohibit importing slaves (and drive up their value on resale, the home-grown variety being, perhaps more useful as more acculturated to subservience) which the South didn't rebel over, but you couldn't prohibit owning slaves. That would've seemed to the South as a prohibition on farming. So this Constitution had to go and it was going to take a very big war to do it.
But the Framers still didn't get the Constitution right even after adding the Bill of Rights as part of a deal to get the thing ratified at all. States weren't supposed to be able to be sued, but someone successfully sued a state and all hell broke loose, with Congress immediately amending the Constitution to add Amendment 11 in 1797 that protected the States from being hauled into court and forced to pay money damages by mere people. This will be Ver. 2.1.1.
That case, incidentally is Chisholm v. Georgia (1797) where Chisholm, the administrator of an estate, sued the State of Georgia to recover money the state had borrowed to fight the Revolution from the guy who died. Chisholm collected, Georgia appealed, and lost in the U.S. Supreme Court. Georgia got Congress to amend the Constitution to invalidate the Supreme Court decision and settled out of court with the estate for a few cents on the dollar, but we're still stuck with the Eleventh Amendment.
Stuck? With one of our vaunted constitutional guarantees? They're not all vaunted. Take the protection of slavery, for instance. The Eleventh provides the states with something called sovereign immunity. That doctrine comes down to us from the days of kings, called sovereigns. What made the king a king was that he had the final say over everything in the kingdom. He could take your land and your head just by his say-so. The U.S. was an attempt to get away from kings. Importing sovereign immunity was stupid. States are responsible for their debts and wrongdoing just as you'n'me. Or should, but for sovereign immunity. Let the state buy an insurance policy, the way businesses do, if it wants business-operation protection, it'll be cheaper in the long run, perhaps.
Then we had this big Civil War that saved the Union and freed the slaves. The slave trade had been stopped earlier, internationally, with the British Navy doing yeoman's service, to its great credit. See Adam Hochschild's new book, Bury the Chains for the remarkable story of how slavery, so taken for granted for thousands of years that not even Jesus spoke out against it, was ended when some churchmen in England, Quakers, actually, got together and spent the next 140 years or so agitating against it. Houghton Mifflin, 2005.
After the Civil War the 15 million or so slaves were freed. Now we didn't have a slavery problem, we had a labor problem. They had no jobs, no savings, no education, no home of their own. And a lot of them were searching for lost spouses and children. To make matters worse, the plantation owners, the former masters, some of them, tried to charge them rent for living in the former slave quarters. The whites were not happy with all these newly freed, no longer subservient blacks. Tensions grew.
The president sent federal troops to the South, which the South did not like at all, Yankee troops on Rebel soil. It was a bit like Osama Bin Laden objecting to U.S. troops on Muslim soil, resulting in 9-11. Congress passed bills to Reconstruct the fallen South, hence the term, hated in the South to this day, of "Reconstruction," which was a sort of forced integration at the point of a bayonet.
This ended in 1876 when we had a presidential election that went like Bush v. Gore in 2000, only instead of the Supreme Court picking the winner, Congress did, as the result of a deal, as most Congressional decisions are, because that's what politics is, deal-making, and you wouldn't want it any other way, would you.
Between the end of the Civil War, 1865 and 1872, the victorious North consolidated its military gains with legal ones, by amending the Constitution, Ver.2.1.1, with Amendments 13, 14, and 15, which guaranteed freedom for the former slaves, granted them citizenship, and provided them, and us, with equal protection, due process, and full privileges and immunities, whatever these might be.
Oh yes, and the right to vote was also given to the newly freed slaves (but not white women, which gave birth to the Women's Suffrage movement which resulted a long time later in yet another amendment).
Let's call our post-Civil War Constitution with those three amendments Ver. 3.0 for the sake of simplicity.
We have quite a few additional amendments since, but I'm not going to apply Version numbers because the point I've made so far is enough to provide context for the next bit, which is why I'm writing this.
Right now we are experiencing a period of constitutional turmoil. It's either easy to see because it's all around you, expressed in the cultural wars of the past three decades or more, maybe six decades, or it's hard to see because it's all around you and difficult to pick out. No one said constitutional law was the easiest subject in the world to get a handle on.
Washington Post columnist E.J. Dionne has a column today inspired by the announced retirement of Associate Justice Sandra Day O'Connor from the Court a last week. She hasn't actually stepped down, but is awaiting her replacement to be confirmed first, which may take awhile.
Meanwhile, all sides are gearing up toward a big shootout at the O.K. Corral, otherwise known as the United States Senate, which must consent to a presidential nominee to the Court.
Dionne points to a volume by Constitutional Law Professor Cass Sunstein of the University of Chicago who notes that O'Connor is a lot more conservative than she looks. But the new thing in the land is that the conservative movement is feeling its oats and is suddenly advocating for sweeping change, where in the past it did not want to see sweeping change, such as brought about by FDR and his New Deal, and the more liberal court that replaced the Nine-Old-(white)Men of the Lochner Era (1905-1937). Conservatives hated the Warren Court and especially the Original Liberal, Justice William O. Douglas, who gave us Griswold v. Connecticut (1964 or 5) and the Right to Privacy which has captured the land, with Roe v. Wade (1973, Abortion) and Lawrence v Texas (2003, liberty, equality, gay rights, sodomy) in its wake.
This is all too much for the Conservatives. It's not like conservatives don't like privacy, and would object to their wives, girlfriends, and daughters having an abortion in embarrassing circumstances, it's just that they don't think that you or the rest of the country should have that right. It reminds me of police officers who dislike advising suspects of their Miranda rights but insist on it when they or one of their family members finds himself in trouble.
Dionne cites Sunstein for the proposition that there is "a movement for "The Constitution in Exile" -- a desire to roll back most of the developments in jurisprudence since the early 1930s. This movement would strike down the regulatory state created during and since the New Deal."
I don't have a problem with discussing which regulations are useful and which are not, but the idea of dismantling the last half-century strikes me as like throwing the baby out with the bath water.
Why not just call the whole country-over-and-done-with and start all over from scratch? You don't rebuild the hull in the middle of the ocean in the midst of a storm.
Which brings me to my point: The Conservatives have their Constitution in their hearts and heads, while I have a different one, as do you. We all have a view of what is right, and what should be right, if only I were king. Each one of these Constitutions is a different version. The one the Supreme Court tinkers with perpetually, or for as long as it's allowed, becomes the official one whether we like it or not. The alternative is, ...you wouldn't want to contemplate the alternative, although Baghdad with its car bombings is probably close.
So we'll have a war of words and political might.
Armageddon, they're calling it.
As a followup article just noted, see this article from today's Wall Street Journal noting the polar opposites, Justices Breyer and Scalia, each of whom has his own view of what the Constitution means or should mean. Scalia votes for what he conceives to be "original meaning" and hates the term "evolving constitution," while Breyer looks to "basic purposes," i.e. the values behind the Constitution, which means constant evolution with changing conditions in the Nation.
We've had a lot of other amendments, but the biggest changes, after getting replacing of the Articles of Confederation, Ver. 1.0 with the Constitution Ver. 2.0 was Ver. 3, after the Civil War.
The 1937 Constitutional revolution that got rid of the Lochner era was next, and that's what the fight is over today, whether we keep the developments of the decades since the Depression, or do we go back to the old ways of Jim Crow, no rights or protection for children, women, and the working man in the labor market, but plenty of protection and rights for corporations and capital. And no protection for women as women, that is, if pregnant, they MUST become mothers, and must take what men serve them in other respects.
Can you see why they're calling the upcoming period Armageddon?
And we haven't even gotten into church-state relations where the far right seems only too happy to shove their religion down your throat, and I hope it tastes good.
I could go on, but this is just a blog...
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