The Constitution and the Flyovers
“I would not look to the U.S. Constitution if I were drafting a constitution (today).”
—Justice Ruth Bader Ginsburg
Listen to the Audio Version below. But before you do, make sure to mute the Kentuckiana site’s soundtrack by clicking the button in the top left of the screen!
This excerpt is an abridged version of the ninth chapter appearing in Kentuckiana Roads
Everyone seems to have an opinion about the Constitution, especially those who have not bothered to read it.
There were only 4543 words in the original, un-amended version. By comparison, the US Tax Code has over 1,000,000 words, which makes it impenetrable to anyone, including Albert Einstein, who said, “The hardest thing in the world to understand is the income tax.” Einstein could describe the merger of space and time but could not grasp the nuances of “C” and “D” corporate mergers, as well as a whole lot of things he appropriately attributed to “black holes.” Even Einstein would be taxed to fathom the magnitude of our national debt, which has grown to $20,000,000,000,000.
That’s why the Internal Revenue Service has had to issue an additional 4,000,000 words of regulations to clarify these things for us. We have Congress, and bureaucrats, to thank for the lifting of that fog. And we have Keynesians to assure us that our mounting national debt is nothing to worry about, either. (As Alfred E. Newman would say, “What, me worry”?)
Our tax code, and accompanying regulations to clarify it, being too complex for even Einstein to comprehend, inevitably leads to implementation and enforcement that is arbitrary and capricious. It is impossible to know this law; yet, we are held accountable to it by unelected, unchecked bureaucrats. If the IRS auditor happens to hate you, your life can be lost in a tangled legal web. This raises some obvious equal protection issues under the Constitution.
If you choose to fight the auditor, you can take your claim to tax court, where you will face a judge employed by the IRS. And this raises some obvious due process issues/separation of powers questions under the Constitution.
The Roman emperor Caligula is not fondly remembered by history for doing much the same thing. He would allegedly “publish” the laws of Rome on the top of a tall column, in letters so small that citizens could not see it, then enforce those laws with a bloody vengeance. Every now and then, a journalist in this country commits a random act of journalism and writes a compelling account about the IRS targeting a particular political group. I find these stories to be deeply disconcerting, since they chill the expression of free speech guaranteed by the First Amendment of the Constitution. Nobody wants an audit any more than they want cancer.
There’s something in the Constitution for everyone, and there’s much room for interpretation. That’s why appointments to the Supreme Court are so important; there are only nine Justices, and their say is final. Lefties were euphoric at the moment NPR announced the unexpected death of Justice Anton Scalia, but the cheering stopped abruptly on November 8, 2016. Since several of the remaining Justices are sclerotic, the Trump Administration will now have an outsized influence in stocking the Court and therefore in influencing the interpretation of this terse document.
Despite the endless commentary from talking head morons on the right and the left, the US Constitution is a product of real genius. Indeed, the Framers of the Constitution, who gathered in Philadelphia during the sultry summer of 1787, were each smarter, by orders of magnitude, than anyone in Congress today. But the Constitution’s real genius, I believe, is derived from the thinkers of the European Enlightenment (Locke and Rousseau in particular). The notion that people possess the power of reason, and even the wisdom, to govern themselves, was a truly radical concept. Career politicians and bureaucrats cannot wrap their brains around that idea today.
The Framers agreed that the Articles of Confederation had failed to create a unified country out of the original 13 English colonies, and so they set out to define the powers of a new federal government. Some things, like providing for the common defense, and the minting of currency, would be exclusively federal. So would be the regulation of interstate commerce, a concept which perhaps was undeservedly given wide berth by the Supreme Court in the years that followed.
Those federal powers would be further divided into three branches: executive, legislative and judicial, and kept accountable to each other and to the population at large. Power corrupts, and the people wielding it had to be kept in check. No one then wanted another King George (any more than we want another George W. today).
When someone bemoans the “gridlock” in Washington, I cannot help but think that gridlock is not such a bad thing at all. Bad things happen when politicians get along. Politicians certainly know what is best for themselves, but they uniformly do not know, or care to know, or care, what is best for their minions.
But the Framers were not in agreement as to what to do about the fact that some states were bigger, and therefore wanted to wield more power, than others. Virginia was many times more populous than New Hampshire. Their solution was a brilliant one: a bicameral legislative branch, with one house having equal representation, and the other proportional to population.
This, of course, required that we have a periodic census. So, how do we count black people?
The framers were most certainly not in agreement with what was to become of the institution of slavery. Some of the Framers were abolitionists, some were themselves slaveholders. And the southern slaveholding states were in no mood to yield this power to any document. Moreover, the slave states wanted to count their slave populations for the purpose of apportioning the House of Representatives, even while denying them the right to vote. Thus was born the “three-fifths compromise,” kicking the can down the road for another day, ultimately to be settled at a courthouse at Appomattox about eight decades later, following the bloodiest war in American history.
The actual convention proceedings were held in secret, the windows shuttered to prevent eavesdropping. In the days before air conditioning, when lice were ubiquitous, it must have been insufferable. As night fell, the taverns of Philadelphia would inevitably fill up, and I imagine the real work of negotiation would begin. What I would give to be transported back in time, to be a fly on the wall in Philadelphia in the summer of 1787.
By defining the powers of the federal government, the Framers were also limiting them, or so they thought. Except for those enumerated powers conferred to the federal government under the Constitution, the states would retain their sovereignty. That satisfied the “Federalists” but not the “Anti-Federalists.” The latter wanted to have basic human rights spelled out too, rights which the federal government had no power to take away. Thus was born the first ten amendments to the Constitution, better known as the “Bill of Rights.” No one today would accuse the Anti-Federalists of gilding the lily.
Our central government has grown, it would be safe to say, well beyond the wildest expectations of the Framers of the Constitution. Some of this growth was the result of the need for uniform rules and regulations governing a society that has become far more complex than the Framers could have foreseen. Some if that growth was necessitated by the fact that our population has mushroomed from five million to 325 million people since then. But unfortunately, much recent growth in government has also been fueled by greed, fear and ignorance.
Greed, because the government hands out benefits like candy, always with strings attached—more control. Once the government acquires power, it does not yield it. Fear, because citizens reflexively burrow into the bosom of government at the first sign of trouble. Ignorance, because too many people labor under the illusion that government solves problems, instead of creating them.
The Bill of Rights may well be our last, best bulwark against even greater government growth and intrusion. Given the leviathan we’ve birthed in Washington, it makes more sense than ever to enumerate the things the government can’t take away from us, rather than to proclaim: “These are your powers, that’s all you have, now leave us alone!” Kudos to the Anti-Federalists.
Among those rights spelled-out is the 4th Amendment protection against unreasonable searches and seizures. Sadly, I have witnessed the 4th Amendment’s evisceration in my more than three decades of law practice.
Consider Section 702 of the Foreign Intelligence Surveillance Act (FISA), a sweeping federal law which authorizes the NSA, FBI and other branches of the federal government to collect personal, private information from people, either directly or through “partners,” without their knowledge or consent. It was a tool which Congress, in the aftermath of the September 11 attacks, deemed necessary to combat terrorism. It was supposed to be a temporary measure when it was enacted, but Congress, in a scarily bipartisan way, has quietly extended it multiple times since then, and has showed no inclination to allow its “sunset” provision to kick in.
Prior to collecting such information, the government agency must obtain an order from a special FISA Court, a new court created under FISA ostensibly to protect Americans from government abuse of basic constitutional rights.
Yes, FISA effectively nullifies the privacy portion of the contract you have with your Internet and mobile phone service providers, and sends you the bill for doing so. Surprise!
This is not to imply that American companies have been uncooperative with government spooks in the past. AT&T, in particular, seems to have been eagerly handing over our personal information to the Feds for a very long time. The AT&T “Long Lines” Building at 33 Thomas Street in Manhattan is putatively a telephone facility, but, as it turns out, is also one of the NSA’s most valuable assets. I’m beginning to understand why AT&T always gets federal regulatory approval for its many corporate acquisitions. AT&T’s status as a rent-seeking oligopoly hasn’t changed much since we knew her as “Ma Bell” and broke her up into “Baby Bells” several decades ago.
The FISA Court meets in secret, only hears the government’s side of the story, and, in contravention of centuries of Common Law, never publishes its opinions. Moreover, it almost never declines a government request to capture and mine data. For example, in 2012, the government made 1,856 applications for electronic surveillance. The FISA Court granted every last one of them.
Given such latitude by an obliging Congress, the NSA has since taken to collecting metadata from perfectly law-abiding Americans: our telephone calls, our texts, our locations, our e-mails, our web surfing habits, our credit card purchases, even how fast we’re driving. If you’re driving late-model car, Big Brother even knows if you’re wearing your seat belt. Visualize a blue whale scooping up krill.
Our former Director of National Intelligence, James Clapper, lied to Congress under oath about government surveillance, as it turned out, with impunity; yet Congress seeks the prosecution of Edward Snowden for telling the truth about it. Clapper retired recently, with a vested federal pension worth well over $1 million, while Snowden continues to survive on Ramen noodles while he lives on the lam in that comparative bastion of personal freedom, Russia. Clapper’s successor, former Indiana Senator Dan Coats, was sanguine about Clapper’s fibbing under oath, and once lobbied Congress on behalf of Sprint to insulate telecommunications companies from liability for spilling ifs customers’ secrets to the government.
It’s hard to take the Alfred E. Newman approach to government intrusion of this magnitude.
In spite of such corrosive attacks upon our liberties, the Constitution has served us well. We have enjoyed growth, freedoms and prosperity unprecedented in human history. It’s been a good run, but now it’s time we amend that document, for reasons that could not have been foreseen by the Framers.
First, the Framers could not have contemplated the ease by which the country could count presidential ballots over thousands of miles and numerous time zones. The Electoral College seemed like a good idea at the time, but technology, and the Internet in particular, has rendered it obsolete. In practice, only a handful of states have contested presidential elections, and only in those states does a vote for president really count. People living in small states, or states which are either solidly Democrat or Republican, are effectively disenfranchised. Twice in the past 16 years—in 2000 and 2016—we have elected a President who did not win the popular vote, let alone a majority of those eligible to vote.
Predictably, a free market in vote-trading has emerged, enabling people in swing states to trade their votes with people in solidly “red” or “blue” states, a practice euphemistically known as “strategic voting.” With so much at stake, it’s only a matter of time before votes in places like Florida will be auctioned off, legally or otherwise.
The Constitution needs to be changed. One person, one vote, for president, no matter where you happen to live.
Ditto, there should be one or more national primary elections to select party candidates for president (more than one primary election may be necessary to narrow the field until a clear majority favorite candidate appears). Too much clout is bestowed upon fringe voters in Iowa and New Hampshire. Direct elections. That’s the way it should be, and the Framers, could they be here today, would hardly disagree. They would be aghast at the major parties’ choices of candidates for president in recent years.
Second, the Framers could not have contemplated the advances in technology which have enabled the FBI and the NSA to employ laptops, servers, cell phones and even the family car to peer deep into people’s anal cavities without their knowledge or consent, or the probable cause to do so. The Bill of Rights clearly contemplates the right of privacy, but nowhere is it specifically spelled out, because there were no such things as laptops, servers or cell phones in 1787. That needs to change.
Third, the Framers could not have contemplated the political culture the federal government has spawned. We fought a war to oust England and its overbearing king. Today, we have an entitled political elite with all the trappings of a monarchy, with special interests (lobbyists) paying tribute. Congress routinely exempts itself from the laws it writes for the rest of us, and engages in behavior (like insider trading, or raiding someone else’s trust fund) that would land the rest of us in jail. We need congressional term limits, transparency, limits to campaign contributions, accountability and clear restrictions on the gerrymandering of congressional districts. While we’re at it, let’s prevent Congressmen and women from naming bridges, roads and airports after themselves, or collecting a pension after they’ve been sentenced to prison for crimes they committed in office.
Fourth, the Framers could not have contemplated that our leaders in Washington could become so entrenched that they could bribe voters with the voters’ own money, or with money stolen from the voters’ children. The national debt roughly doubled under George W. Bush, and it doubled again under Barack Obama. That’s a four-fold increase in only 16 years. It is lunacy to believe that this level of spending can be sustained. The national debt now stands at roughly 100% of gross national product. And that doesn’t even come close to accounting for the federal government’s unfunded liabilities and entitlements (for example, the federal government now guarantees the vast majority of new home mortgages—the lessons of the “Great Recession” are obviously unlearned). We need a constitutional limitation preventing intergenerational theft and imposing some basic level of fiscal responsibility.
Fifth, the Framers of the Constitution could not have contemplated that Congress would delegate unprecedented powers to administrative agencies, which themselves would employ influence over Congress, and further, that those administrative agencies would not themselves be subject to the Constitution’s division of powers—executive, legislative, judicial—that keeps the rest of government in check. Today, we have administrative agencies that have run amok, with the power to make rules, enforce those rules, and adjudicate those rules. Not one of those administrative agencies is beholden to voters. Yes, yes, we need something like the FAA to control air traffic, the FDA to license new drugs, and the EPA to assure that the Cuyahoga river doesn’t catch fire again. But we don’t need imperious bureaucrats dictating to us which direction to wipe our ass.
Sixth, though the Framers of the Constitution all sought to put reigns on the powers of federal government, it apparently did not occur to them that depriving the government of the power to take a human life might be a good way to go about it. Regardless of that omission, today capital punishment is no longer a deterrence to crime, and it is a serious drain on the public purse. It’s already prohibited in 19 states and the District of Columbia. It’s time to make it go away for good.
Article V of the Constitution contemplates two means by which that document may be amended. Only one has been attempted, sometimes for noble purposes (abolition of slavery) and sometimes not (prohibition of alcohol). Congress meets, agrees on a proposed amendment, and then sends it on to the states for ratification.
The other way, never attempted, is for the states themselves to call a constitutional convention. “The Congress . . . on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which . . . shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States.” Meet, agree on one or more amendments, and send it/them off to the state legislatures for ratification. It’s a way for the states to shove it right up the political elite’s lower digestive tract, thereby giving us all an extra level of satisfaction.
Some people play fantasy football. I write fantasy constitutional amendments.
I will share with you just a few of them below, which are calculated to benefit the Republic and not ruffle the feathers of ideologues on either the right or the left.
Proposed Constitutional Amendments
Proposed Amendment A: TERM LIMITS
No person shall be elected or appointed to the office of the House of Representatives more than six times.
No person shall be elected or appointed to the office of the Senate more than two times.
No person shall cumulatively serve more than twenty years as a judge in the federal judiciary.
This Amendment shall apply only prospectively to any sitting member, or to any previously elected or appointed member, of the House of Representatives, Senate or Judiciary.
Proposed Amendment B: RIGHT OF PRIVACY
The right of persons to be secure in the privacy of their communications, files, records, friendships, consensual adult sexual activities, personal and political associations, and treatments for sickness, disease or the prevention thereof, shall not be infringed.
Proposed Amendment C: DIRECT ELECTION OF PRESIDENT
The Electoral College is hereby abolished. The election of the President of the United States shall henceforth be made by direct, popular ballot conducted in a national election.
The selection of any political party’s candidate for President of the United States shall be by direct, popular ballot conducted in one or more national primary elections. Any such primary election shall take place no more than 90, nor less than 30, days before the general election for President. No party may nominate a candidate for President unless and until such candidate receives a majority of votes cast in the primary election.
Proposed Amendment D: MAKING CONGRESS ACCOUNTABLE
Congress shall pass no law which shall exempt members of Congress from such law, or otherwise exclude members of Congress from its practical application.
Congress shall consider no amendment to proposed legislation which calls for the expenditure of public funds for the exclusive, or primary, benefit of a particular state or congressional district, or constituent(s) located therein.
No member of Congress shall enjoy immunity from prosecution for crimes committed, or immunity from civil liability by reason of actions which have occurred, during a duly convened session of Congress.
Neither the President, nor any member of Congress, nor any candidate for either office shall, directly or indirectly, accept remuneration, or a gift of more than token value, from any foreign government or person representing or advocating the interests thereof.
Neither the President, nor any member of Congress, nor any candidate for either office shall, directly or indirectly, accept remuneration, or a gift of more than token value, from any governmental office or administrative agency or person representing or advocating the interests thereof.
No project or item financed with public funds may be named after any sitting President or sitting member of Congress, and no project or item financed with public funds may be named after any former President or member of Congress who played a role in obtaining the financing for it.
No person shall, directly or indirectly, profit or otherwise derive personal benefit from the use of non-public information obtained by virtue of his or her position in, or with, Congress or the office of President.
Neither the President, nor any member of Congress shall, upon retirement from the office of President or Congress, receive a pension that exceeds the cumulative compensation that he or she received while serving in such capacity.
Neither the President, nor any member of Congress, shall receive remuneration of any kind upon their conviction of a high crime and misdemeanor committed while serving in such capacity.
The President, as the chief executive, shall faithfully execute all of the laws passed by Congress. It shall be an impeachable offense for the President to willfully refuse or fail to enforce a law, or any portion of a law, of Congress, or attempt to circumvent, negate or eviscerate such law by executive action or inaction.
Proposed Amendment E: SENSIBLE RULES ON SPENDING MONEY
No annual budget to finance the operations of the federal government shall exceed projected tax revenues, except in times of bona fide national emergency. Projections of tax revenues shall be based upon empirical data, compiled and derived impartially and in good faith.
In the event Congress and the President shall fail to reach agreement on an annual operating budget for the federal government, upon the expiration of the previously approved budget, neither the President, nor any member of Congress, shall derive compensation for his or her service until a new budget is passed. No successive budget shall allow for the retroactive payment of compensation to either the President or to any member of Congress, nor shall it allow for an increase in compensation to either the President or to any member of Congress from that which was authorized in the most recently approved budget.
No continuing resolution to fund the operations of federal government in lieu of an annual budget shall be valid if it calls for the expenditure of funds in excess of the funds authorized by the most recently approved budget.
Proposed Amendment F: MAKING ADMINISTRATIVE AGENCIES ACCOUNTABLE TO THE PEOPLE
Section 1. Every federal administrative agency shall cease to exist ten years from the date of the enactment of this Amendment unless Congress shall, by a two-thirds majority of each house, vote to keep it in existence in the manner prescribed in Section 2 below. No new administrative agency may be established except upon the affirmative vote of a two-thirds majority of each house of Congress, in the manner prescribed in Section 2 below.
Section 2. Any vote to establish, or continue the existence of, an administrative agency shall be accompanied by new enabling legislation which shall: (a) define the purpose of such administrative agency; (b) clearly describe and circumscribe the powers of such administrative agency; (c) establish clear standards and procedures to assure that such administrative agency, in the exercise of those powers, does not impose burdens upon society which exceed the reasonably expected benefits to society; (d) establish clear and reasonable procedures to prevent the abuse of power or the waste of resources by such administrative agency; (e) assure the protection of rights of persons under this Constitution; and (f) provide a clear mechanism to assure continued accountability to, and oversight and control by, the Congress.
Section 3. The Supreme Court and the inferior federal courts established in this Constitution shall have the exclusive authority and jurisdiction to hear disputes involving the enactment of rules, or the actions taken to enforce rules, by any federal administrative agency. No federal administrative agency shall perform judicial functions with respect to its own rules and actions.
Neither the President, nor any member of Congress, nor any person serving in the administrative offices of either the President or Congress, nor any candidate for such offices shall, directly or indirectly, accept remuneration, or a gift of more than token value, from any governmental office or administrative agency or person representing or advocating the interests thereof.
Any administrative agency established, or which has had its existence continued, in accordance with the procedures of Sections 1 and 2 hereof, shall itself cease to exist ten years from the date of its establishment or renewal, unless Congress shall continue its existence in accordance with the procedures of Sections 1 and 2 hereof.
Any effort by Congress to circumvent this Amendment by enlarging the powers of an existing administrative agency shall be null and void.
Proposed Amendment G: AN END TO GERRYMANDERING
Section 1. Promptly upon the completion of each national census, the Supreme Court shall convene and approve, or when required by population changes redraw, the boundaries of congressional districts within the states. The Supreme Court may also redraw any congressional district which has previously been gerrymandered by a political party.
Section 2. In re-drawing such congressional districts, the Supreme Court shall attempt to enfranchise the maximum number of citizens living within such districts, without consideration to race, ethnicity, or party affiliation, with the objective of fostering competitive elections within such districts. The Supreme Court shall disregard non-citizens in its drawing of congressional districts.
Section 3. In re-drawing such congressional districts, the Supreme Court shall attempt to minimize the length of boundaries separating congressional districts, and, wherever practicable, not draw a congressional district boundary which divides a county, parish, municipality or other pre-existing political entity. In drawing boundaries, the Supreme Court shall also consider the convenience of the voters who live within them.
Proposed Amendment H: AN END TO CAPITAL PUNISHMENT
Capital punishment for crimes committed within the United States or any territory subject to its jurisdiction is hereby abolished.