Bloodless Revolution and a New Constitution
June 30, 2002
by Bruce Walker
Conservatives and other patriots have a deep and valid reverence for the principles articulated in the Declaration of Independence. Our Founding Fathers tried to ground these principles in the practical mechanics the various states constitutions, in our American Constitution, and in those first ten modifications to our Constitution which we call the Bill of Rights. Independence Day is the proper time to reflect upon how well practical documents like the Constitution have done in preserving the loftier aims of the Declaration of Independence.
The Constitution was never intended to be perfect. There is nothing magical, for example, about a bicameral legislature. Having two chambers of the national legislature was intended less as a check upon unbridled congressional power than a sop to small states whose power is much greater if each state has precisely two senators. The consequence of having two coequal legislative chambers has been to enable cunning pols to mask true deeds behind the smoke and mirrors of conference committees and bills dying in one chamber.
Many of our most cherished "constitutional rights" like freedom of expression, due process of law, and trial by jury are not even mentioned in the Constitution, but rather in the Bill of Rights. These "constitutional rights" did not apply to state governments until by the gradual process of "incorporation" the Supreme Court rammed those down the throats of state governments over a period of decades, ending last with the bizarre "exclusionary rules" and "rights to privacy" which are found nowhere in the Constitution itself.
Some rights presumed in the Constitution, like secret ballot are not in the Constitution anywhere (the Founding Fathers assumed that people would cast their votes quite publicly) or are blatantly absent from the Constitution (the Senate is based upon inequality of votes).
The Constitution was the best attempt men had made by 1789 to consciously create a workable and a good government. Since then other nations have proven that many of the assumptions of the Founding Fathers were wrong (Switzerland was considered an example of how vulnerable confederations were to foreign conquest, but no nation on earth has proven more resilient against foreign conquest than Switzerland). Conservatives often grasp how far we have moved from the "original intent" of the Constitution but sometimes we fail to see that the original intent itself was sometimes wrong.
It is quite right to return government back to the original intention of the Declaration of Independence, which included universal principles of liberty and clearly defined moral purposes for government. These days, returning to the Declaration of Independence means little short of revolutionary change. Revolutions, however, are almost always bad things, while revolutionary changes through peaceful means are not.
One basic problem with any dream of a constitutional government reform is that federal courts, particularly the Supreme Court, have long since taken away from the people and elected representatives the right to amend and to interpret that Constitution, a document which was intended to be a "work in progress." When federal judges and their liberal defenders note that the world has changed much since 1789 and that we face new problems which the Founding Fathers could not have envisioned, this is true.
The Constitution describes the process for formally amending the Constitution, but that arduous process is now a limp tool of the people. Some Clinton supporters, for example, recently noted that the Twenty-fifth Amendment, barring presidents from serving more than two terms, may be "unconstitutional." The stupidity of that sort of thinking must be taken in light of seriousness with which some federal judge may consider it.
Even if an amendment was passed - an almost impossible task - it could be undone by five Supreme Court justices. The very sloppy reading of the Constitution by politicians and ideologues on and off of the federal bench means that us ordinary folk must have a clear, simple vehicle for restoring those principles of the Declaration of Independence which the Constitution was intended to protect.
How then do we Americans have a revolutionary constitutional change without violence? Thankfully, we have two models, one British and one American.
The English evolution into representative government was a series of tremors without a particular earthquake. When government and politics become so vain, silly and useless that radical reform is needed, then the constituent elements of injured parties compelled a "Magna Carta" or "Petition of Rights" or "Bill of Rights" - all of which are English legal documents which redressed wrongs without using traditional methods - to be executed. These included a series of modest ultimata presented to the crown (e.g. federal courts and bureaucracies) which would preserve and protect rights without breaking the structure of government completely.
Queen Elizabeth is still monarch of England, a nation which still has a House of Lords, but real power has long since been drained from the Monarchy and the Peers and been invested in the House of Commons. We call our House of Lords and our Monarch the Supreme Court. State governments, by resolution of state legislatures and by declarations of governors, can simply insist that there are real limits to these huge, bloated federal antiquities.
Early in the American Republic it was state governments that ended the odious Alien & Sedition Acts; vigorous assertion of states rights (not succession and not rebellion) can accomplish the same goals, in the spirit of Runnymeade, where representatives from England confronted King John with a Great Charter.
Perhaps better, though, is our own American model. The men sent by their state governments to Philadelphia were not given the mission of creating a new Constitution, but rather of fixing the defects in the existing Articles of Confederation. When they emerged from their deliberations, it was with a document entirely different and outside the scope of their mission. Almost no one today considers that these men acted badly, but they did see a greater vision than those who charged them from the various states.
Why not have President Bush convene a group of notables to come up with a similar refinement (or perhaps complete rewrite) of the Constitution? President Bush today has the popularity and the people have the frustration to make this work. Ignore the hoary and silly process of a constitutional convention, and simply pull together a group of highly respected men and women who can present a better form of government.
These could then be submitted to state legislatures for approval, or perhaps it would be even better to simply present them to the people of the nation for approval. What would happen if President Bush convened a group of thoughtful and practical men, who developed a dozen or so very popular and very practical reforms, and then he went on television for a vote of the people?
What if these were put on a federal ballot within a week or so, and seventy-three percent of the American people approved these? There is no specific authorization for such an election, but there is no prohibition either. Who would stand up and say that the people cannot vote to express their opinion at the ballot box?
And what if President Bush then announced that since the Constitution was largely adopted this way, and that since sovereignty resides in the people, he considered these reforms now the law of the land, superseding whatever federal judges, federal statutes, or even the Constitution may have said otherwise?
Completely rewriting the Constitution might frighten some frady cats, so how about just these ten plebiscites for the people to approve or to reject?
If these ten measures passed by a landslide, then who would say that each was not now the law of the land, superior to all prior rules of government, including the Constitution? So much of the liberal establishment is old, gray, cobwebs of stale orthodoxy. Why not create a peaceful, benevolent, but real revolution in government? And what better time than now?
Bruce Walker has been a dyed in the wool conservative since, as a sixth grader, he campaigned door to door for Barry Goldwater. Bruce has had almost two hundred published articles have appeared in the Oklahoma Bar Journal, Law & Order, Legal Secretary Today, The Single Parent, Enter Stage Right, Citizen's View, The American Partisan, Port of Call, and several other professional and political periodicals.
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