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The Case For a New Constitution

Updated: Nov 18, 2021

If I ask you to name the biggest problem in America, the biggest problem that we, as a society face, what would you say it is? Okay, got it, now list the top ten problems with America, the things you’d like Congress and the President to fix or the Supreme Court to overturn. I want you to actually go do that, make that list. I don’t care if it’s on paper, your computer, your phone, the back of your hand, whatever, just list off ten things, the ten biggest problems in our country. I’ll wait; I’m gonna grab a coffee, so you’ve got a good five minutes.

Okay, so you’ve got it? All right, so I want you to look at that list. Before we get into anything else with the list, I want to make just a brief little point. So, you all have a list, everyone reading this, or I don’t know, probably a bunch of you just made a list in your head or thought of, like, six things and said whatever. My point is this: everyone agrees there are problems in this country. We all have things we want to be better, things we want to improve, things we want our government to improve or change or update or clarify. We all have things that piss us off, that get us ranting and raving, that just really wedge in our brains and drive us nuts, things we’d love to be different.

All right, so now I want you to look at your list in a different way. How do you fix the problems? What do you do? Do you run for office? Do you lobby your elected representatives? Do you become an activist for a cause, donate to a charity that supports the changes you want to see, volunteer your time, canvas for a political candidate, peacefully protest, host sit-ins, refuse to pay taxes, emigrate to another country, rebel against your rulers in armed revolt, throw a bunch of your colonial rulers’ tea in a harbor?

Maybe you hire a lawyer, and they comb the country for the perfect test case for the law you want to overturn, challenge, or change, find the perfect “victim” or plaintiff, with the ideal circumstances to challenge the law and appeal your way to the Supreme Court, where you, or your lawyer, using their abundant legal acumen, argue that the Constitution should actually be interpreted differently than the prevailing wisdom. For example, that the Second Amendment’s language is actually referring to everyone’s right to be armed, not just to that of a well regulated Militia. This isn’t just a hypothetical; in District of Columbia v. Heller, the Court fundamentally altered the application and interpretation of the Second Amendment, extending the right to bear arms to apply to individuals. This case was heard by the United States Supreme Court on June 26, 2008.

Which of these strategies do you think has the best chance of success, the best odds of affecting real change? Personally, I honestly don’t know. People have been doing all of the above for years and years, since before the United States became a country, even briefly under the Articles of Confederation. So why haven’t we fixed all the problems? Are we ever going to fix all the problems? Again, I truly don’t know. History is seen by many as an ever progressing, inevitable march towards the future. What future? The one we’re in now, I guess, but Earth’s history could’ve played out in a billion other ways. You change one or two things, maybe add a little mass to the Mars-sized object, whose collision with a very young Earth was almost certainly what created the Moon, and who knows what would be different today? We might not even be here, let alone have the internet, computers, 5G, cell phones, tablets, or whatever you’re using to read this now.

Nowhere is it ordained that events had to occur in the particular manner they did, but many people see a pattern of continuous progress, movement forward, and they feel as though we were destined to end up here. In a lot of ways, looking at things with a wide lens, life for humans has sort of continually gotten better. We cover the globe because we got really good at shelters. We developed farming, so we have plenty of excess food, producing more food than at any point in human history, We’ve been to space, sent probes beyond our Solar System even. We split the atom and discovered some of its secrets in super colliders like the LHC. Modern medicine is capable of things that were science fiction or far distant pipe-dreams in the very recent past. We can communicate across the globe almost instantly. People, by some measures, enjoy a quality of life that would’ve been incomprehensible cushy and luxurious to our forebears.

We also have kids going hungry every night in this country, with nearly one in six children living in poverty. We have massive, systemic issues with race and racism, groups of White Nationalists rioting and storming the Capitol, plotting to kidnap and kill elected officials. Almost half the population doesn’t believe in evolution, and almost 22 million people think the government faked the moon landing. We still have major issues with the acceptance of those who fall somewhere in the LGBTQ+ mix, and almost half the country thinks gay marriage shouldn’t be legal. We don’t guarantee sick leave for employees, nor do we guarantee the ability to access that marvelous modern healthcare I mentioned, with 28.9 million uninsured and many more underinsured. Public education is wildly inconsistent, with wealthy districts offering significantly better education, buildings, conditions, programs and more, giving wealthy, and mostly white, students a better chance for success, while many other schools, especially in poor and minority neighborhoods barely eke out an existence. Some schools can set students up for a cushy life, while others are happy just to have kids graduate. We imprison our citizens at rates unheard of around the world, with 0.716% of our total population incarcerated, more than 2.3 million people. The United States houses more than 20% of the entire global population of prisoners. Workers have fewer and fewer rights, and the ones they do have constantly under assault by employers, as clearly seen in corporate responses to the Covid pandemic, with corporations routinely putting workers in harm’s way with seemingly no regard for their safety. Unions, organizations meant to fight for workers’ rights, are husks of what they once were, with the possible exceptions of teacher, fire fighter, and police unions, but even teacher unions are under attack, with laws like Act X in Wisconsin, passed under Scott Walker by a Republican controlled State Legislature. Companies like Walmart will abandon entire stores if they think the employees are going to unionize, to have the gall to ask for better working conditions and treatment. Amazon will do the same, moving entire facilities to other states, when they face the terrifying threat of employees unionizing. Police unions are one of the only ones left with any real power, and they mostly seem to use theirs to protect corrupt and murderous cops. African Americans are twice as likely to be shot to death by police. Nearly one in one thousand black men will eventually die by the hand, or rather, the gun, of our police force.

We have the most extreme wealth inequality in the world, and the ultra-wealthy pay taxes on a piddling percentage of their actual income, while the poor have to struggle just to get their return. The wealth gap in this country is absolutely insane, with a miniscule number of people holding an absolutely mind-boggling amount of money. Elon Musk, the current richest man in the world, is worth $185 billion dollars. He’s currently 49. If we’re generous and say he lives to be 120, he could spend more than $2.5 billion dollars a year for the rest of his life, more than $7 million a day, or almost $300,000 an hour, or about $5,000 a minute. How many of you even have $5K on hand, or could afford $5K for an emergency situation? Why does one person need anywhere close to that much money? And Elon’s just the richest, with the wealthiest 1% of the population holding 40% of the total wealth. That’s around 3 million people collectively worth over 42 trillion dollars, a flat out staggering amount of money. In January 2018, 552,830 people were counted as homeless in the United States. The median home price is $320K. That means Elon Musk could buy a brand new, three hundred and twenty thousand dollar home for each and every homeless individual in the country and still have more than eight billion dollars left over. Does that seem right to you, that any one person has that kind of wealth?

I could keep going. I could keep listing statistics, throwing out numbers, talk about the issues and problems in this country or around the world, maybe even give my two cents on how we might go about solving them. But what’s the point? All that activism I talked about earlier, all the different ways that you or I might try to affect change; none of them really seem to be very effective. Even if we go to the extreme end, in the view of many, and talk about Constitutional Amendments, the outlook, if anything, looks worse. The last time the Constitution was successfully amended was in 1992, and all that amendment did was delay a change in Congressional pay. In the whole of the twentieth century, there were a grand total of twelve Constitutional amendments passed. In chronological order, they granted Congress the right to levy income tax, established election of Senators by popular vote, started Prohibition, granted women the right to vote, changed the dates of inauguration and established succession rules, ended Prohibition, limited Presidents to two terms, granted the District of Columbia Electoral College electors, prohibited poll taxes, established additional presidential succession rules, prohibited the denial of voting rights based on age (over eighteen), and, of course, the aforementioned delaying of a Congressional pay law taking effect. That’s it. And before that last one in ‘92, the next most recent amendment, the one prohibiting age discrimination in voting, was passed in 1971. Mostly, I’m just unimpressed. The only ones that accomplished anything meaningful were “giving” women the vote, establishing the election of Senators by popular vote, prohibiting poll taxes, and giving the District of Columbia a voice in national elections (for the President anyway; they still don’t have any kind of representation in Congress). I don’t think either of the Prohibition amendments really count, so that’s two more that cancel out.

Meanwhile, activists have been trying to get an Equal Rights Amendment, simply a guarantee that federal and state governments can’t discriminate based on sex, passed for the better part of fifty years, and it’s yet to be fully ratified. Something as basic and widely agreed upon as prohibiting sex-based discrimination in government can’t even get passed Other failed amendments include one regulating the size of congressional districts, pending since 1789, another that would empower the federal government to limit and prohibit child labor, pending since 1924, a variety of attempts at campaign finance reform and regulation, a prohibition on the President pardoning themselves, and a proposal to make Election Day a national holiday and prohibiting foreign interference in elections. There are numerous others, some even kind of funny, like the proposed Dueling Ban of 1838, after Rep. William Graves dueled another Congressman, Jonathan Ciley, to death. Or another that would’ve eliminated the presidency entirely in favor of two separate elected officials, so the North and South could both be represented; that one was proposed in 1860 (funny about that timing, huh?). Others range from boring to disturbing, but you can pull up that Wikipedia page on your own. When we can’t even agree that discrimination on the basis of sex is bad, and we should probably formalize that in our Constitution, with people fighting for its passage for nearly fifty years, maybe that should tell us something about the amendment process. To me, it says it’s broken.

What’s more disturbing than the piddling number of amendments passed in this country is how ridiculously vulnerable the Constitution is to differing interpretations. I mentioned the Second Amendment and how its interpretation has changed drastically in just the last twenty years, but that’s just one example. In another instance, the “Commerce Clause” of the Constitution, a seemingly simple statement, charging Congress with the duty - “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” has gone through an absolutely fascinating transformation, in terms of its application. It was eventually used as the justification for Congress’ power to force businesses to desegregate. Makes perfect sense, right? You intuitively see how they interpreted as granting Congress those powers, right? The Commerce Clause definitely grants Congress exactly that power, and I’m sure it’s what the Framers of the Constitution intended. The end result, formal desegregation, is great, but you start to see the problem with the Constitution being up for wide interpretation (Directly related, I highly recommend More Perfect, from the Radiolab team, specifically the episode on the Commerce Clause, “One Nation, Under Money”).

The Constitution enjoys a venerated, almost holy status. It’s treated like a holy text or relic, its words giving our country meaning and direction, instructing us how best to govern. But the god damn thing is more than two hundred years old, and it was written by a bunch of racist, misogynistic, old white men, who maybe, just maybe, didn’t actually have the best interests of every one of the country’s citizens’ best interests at heart. Maybe the guys who chose not to address slavery with our founding document weren’t equally as concerned about the rights of “every man” as they professed to be, let alone women. And besides, just look at how damn archaic the thing is; look at this language - “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” What the fuck is that, and why do we act like our Constitution, which only about 28% of our country has even read, is the end all be all of constitutions?

Even if you don’t subscribe to my radical notion that maybe it’s high fucking time we modernized our country’s Constitution, because holy shit is that thing full of a bunch of nonsense, I want you to at least consider something. Is this what you want? Is the current state of things good for you and your loved ones? Is everything right with the world? Is the system working as intended, with a miniscule number of people holding almost all the power, or is the system broken? Or is the system just whatever the ultra-rich want it to be?

Fundamentally, what I want you to take away is this - if you could start over and create a society, or a country, or a global geopolitical stage, from scratch - Is this world, the one we currently inhabit, is this world the one you envision? Would you establish a system resulting in more than five hundred thousand homeless, with one in six children living in poverty, with a healthcare system in disarray, completely inaccessible to many and bankrupting others, with the most extreme wealth inequality in the world? Is this the world you’d choose to live in, if you could have it any way you wanted? We’re supposed to have the power to affect change, but that power has been eroded and seized from the common people at every turn, with poll taxes, union busting, gerrymandering, vastly unequal education, and more. The country is currently reeling from an attempted armed insurrection, encouraged by the sitting President, and only ten members of his party voted to impeach - for directly encouraging treason. What the actual fuck is happening, and why are we allowing it?

The system is broken beyond repair, and, in my opinion, the only real answer is to burn the damn thing to the ground and start fresh. Where’s our universal, space-age healthcare? Where’s our futuristic utopian society? If we want the future to live up to our expectations, for our children to inherit a just and functional society, one that truly gives every one of its citizens a voice we have to do something different. What we’ve been doing has got us here, and, if you don’t feel like this country is working for you, the common person, maybe it’s time to try something new.

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