The Federal Government, and hence the United States as a nation, is up to its neck in debt, its budget totally out of control, and the whole issue clothed in obscure double-talk. Administrations never talk of reducing the debt – that would require a budget surplus which is an unattainable dream. It requires that the nation's taxpayers pay out more than they receive in goods and services, and for a very long time. No. No one ever mentions the S word. Indeed no one ever mentions the debt, focusing instead on the deficit, the amount by which the debt increases each year. Nor do we aim for a zero deficit – that too is a dream. The politically correct solution is to talk about deficit reduction, which on examination turns out to mean a reduction in the rate of increase of the deficit. No wonder ordinary Americans are confused to the point of obscurity (which of course is precisely the object of the exercise).
What Americans are aware of however, is a general perception of waste and extravagance in their government, coupled with an increasing element of secrecy. The upshot, as far as the American public is concerned, is a deepening mistrust of government coupled with a rapidly declining faith in its honesty and integrity.
The fundamental concept of a constitution is that it sets the rules and regulations, procedures and standards, by which government operates. So logically, one should be able to look to the Constitution to renew the people's faith in their government by applying the remedies necessary to right perceived wrongs. What is needed, as most Americans would agree, is an authority of constitutional standing with the duty and the powers to investigate every aspect of government conduct, nothing barred, to check on finances and productivity. It should also have the authority to examine and, if not to report publicly, at least to satisfy itself and assure the American people on the constitutionality of any secret departments and operations. Such an authority does not presently exist, the need for it not having existed or been foreseen 250 years ago.
So can such an addition be made today? Not a chance. For the Founding Fathers made the mistake of providing for changes in the constitution to be made, not by an institution of constitutional standing and authority, but by a component of the legislature. A mistake? Yes, absolutely. The purpose of a constitution is to discipline government, and government is hardly going to exert itself to propose and pass any additions to that discipline. It's rather like asking a class of unruly schoolboys to write their own rulebook.
The U.S. Constitution was born without the seed of growth and regeneration – it lacks practical ability to re-shape itself to changing conditions and needs.
As every American knows, or at least tries to believe, the Constitution stands on guard for liberty. But it stands in the wrong place. Where does a factory site its Quality Control? Up to the 1980s the general practice in American industry was to focus on output in terms of quantity which kept prices low; customers receiving faulty goods could, if they got around to it, return them for exchange. During the 1980s however, competition from Japan forced American industry to look at the Japanese alternative – quality control sited at the end of the production line before goods went out to the customers.
By placing the Constitution at the apex of the judicial system, the Founding Fathers in effect went for the traditional American quality control method: let it go and wait for the customers to wade through a complex complaints procedure.
If the provisions of the Constitution are to be rigorously observed and adhered to, the Constitution should have been placed at the apex of the legislative system. In this way, every law would be passed to a Constitutional Executive for verification of its constitutionality before becoming enforceable law.
But this was not and is not the case. Like faulty products leaving the factory unchecked by quality control, unconstitutional laws are free to exit the legislative system, passing formally into law, thence roaming the nation from sea to shining sea. This they continue to do until some alert citizen awakes to their unconstitutionality, and armed with the necessary resolve and finance, questions a law's constitutional validity in court. But not the Supreme Court of course; one does not reach such lofty heights without progressing through the system, upwards from the lowest court in the land. And even when a case reaches America's ultimate citadel of constitutionality, it is given only the status of an appeal, a supplication to the Justices, who toy through the list of petitions before them, selecting only those pleasing to them for their own unspecified reasons.
The Constitution is supposed to be America's guard against unconstitutional laws. In this it is quite ineffective, not through lack of appropriate clauses and provisions, but because the process of verification is sited in the wrong place.
Worse still, certain provisions of the Bill of Rights exist in name only, without the means either of verification or enforcement.
For almost a millennium, ever since that grand-daddy of constitutions the Magna Carta, the “cruel and unusual punishments” clause has been a sine qua non of any self-respecting constitution thereafter. It has a wonderful medieval ring to it, a sense of ancient tradition, a pillar of liberty, a sure stronghold assuring the citizenry that even criminals have the right to civilized treatment. Yet for all its dramatic potential, it is nothing but empty words. No one questions it of course. Why should they in a politically civilized nation in this day and age? “Cruel and unusual punishments” brings to mind devices such as the garrotte, the wheel, the stretcher, the coffin of spikes and similar horrors of medieval torture far removed from today's civilized behavior. At least so everyone thought. Until pictures of prisoner treatment in Baghdad's Abu Ghraib prison shocked America and the world, followed soon after by allegations of similar conditions in Guantano detention center. It subsequently became clear, following investigative reports, that “abuse” was endemic throughout the U.S. penal system. For “abuse” read “cruel and unusual punishments” – mild perhaps by medieval standards, but not by those of today.
Fact is that Articles of the Bill of Rights are being openly flaunted, and nothing is done because the Bill of Rights lays down high-sounding requirements without any provision whatsoever for their verification or enforcement. Is there a Constitutional Executive with a special department of inspectors roaming the prison system, pouncing at random, with carte blanche to inspect whatever they want instantly and without delay or prevarication, and to bring to account any who dare transgress the Bill of Rights? No. Only a high-principled Article with a dramatic historical ring to it – bereft of any provision for verification or enforcement. In the case of Abu Ghraib, Guantano, and doubtless other secret Detention Centers, there is also the matter of Detention without Trial – yet another high-sounding but toothless element in the constitutional package.
Philadelphia during the latter half of the 1700s saw a concentration of well-informed, intellectually sharp and highly principled political minds the like of which has never since been equaled. Unfortunate only, that America's Founding Fathers did not have a midwife among them.
THE U.S. CONSTITUTION: WAS IT STILLBORN?
