Our Inflexible, Outdated Constitution

College of DuPage explores voter suppression and voting laws in honor of Constitution Day

           A national constitution ought to reflect a society’s fundamental values by defining a set of legal principles that can be periodically adjusted in order to reflect a society’s changing mores, culture and technology. By that standard, our Constitution is woefully out of date.

From the electoral college to gun rights to the hilariously archaic right to refuse to quarter troops in your home and the $20 threshold for a civil jury trial, the U.S. Constitution contains many head-scratching relics of an America we wouldn’t recognize. Living in the age of the musket, James Madison might not be so quick to argue for legalizing the AR-15, assuming that a well-regulated state militia was still a thing.

A work of genius the U.S. Constitution is not. It is almost impossible to amend—it is in fact the hardest to amend in the world. The immutability of the document is highlighted by the inability of the world’s most powerful democracy to enshrine a right as basic as gender equality, a principle that the vast majority of other countries, even dictatorships and authoritarian regimes, have managed to include (at least in theory) in their founding charters.

We haven’t successfully amended the Constitution in half a century—and barely then. Which is really weird. “Most liberal democracies—including the nice, stable ones in Western Europe—amend their constitutions with great frequency,” University of Chicago law professor Eric Posner pointed out in 2014: “Germany amends its Basic Law almost once per year, and France a bit more than once every two years. Indeed, most states in the U.S. amend their constitutions every couple of years.”

            Because Americans are saturated from birth to death by “living document” propaganda about the eternal majestic genius of the Founding Fathers, the constitution is treated like a sacred stone tablet personally engraved by God rather than what it is, a 234-year-old train wreck. From progressive Democrats to right-wing Republicans there is no thought, much less political will, to suggest that this relic might be altered to better serve 21st century Americans.

            We may not see its flaws, but everyone else does. As recently as 1987, most countries’ basic legal charters were directly or indirectly inspired by the American constitution. Not any more. “Among the world’s democracies,” a 2012 NYU law review study found, “constitutional similarity to the United States has clearly gone into free fall.” When a new country like East Timor or South Sudan emerges on the world stage now, their legal experts look for guidance to the more modern constitutions like those of Canada, India, South Africa and New Zealand. The right to travel, the presumption of innocence and entitlement to food, education and healthcare—standard rights around the globe—are absent from the U.S. Constitution. The climate crisis should prompt consideration of a constitutional right of nature, as several countries have.

            If we we’re a vibrant democracy, we should act like one. We ought to ask ourselves: if we were writing a Constitution today from scratch, what would it look like?

Would a contemporary U.S. constitution include an electoral college system? Perhaps— we might join Burundi, Estonia, India, Madagascar, Myanmar, Pakistan, Trinidad and Tobago and Vanuatu, which have electoral college systems.

But probably not. It’s far likelier that popular opinion would prevail and that we’d choose our leaders the same way most of the world does. A 55%-to-43% majority of Americans told a January 2021 Pew poll that they would prefer the president to be elected by popular vote.

Lefties’ complaints about the not-guilty verdict in the recently-concluded Kyle Rittenhouse trial prompted me to start thinking about the question of what a 2021 Constitutional Convention would come up with. Legal experts weren’t surprised that Rittenhouse got away with killing two men and wounding a third. By every credible account, the jury followed Wisconsin law.

“America today: you can break the law, carry around weapons built for a military, shoot and kill people, and get away with it,” said California Governor Gavin Newsom. Well, yes. Not because the jury messed up. Because they followed the law.

Which means the law is the problem.

If you don’t think the law should allow a 17-year-old kid to take an AR-15 military-style assault rifle to a riot, play junior vigilante supercop and wind up shooting three people, I agree. The root of that craziness, however, is not to yell vague complaints about “the state of America”—it’s to repeal or amend the antiquated Second Amendment.

The constitutional right to keep and bear arms is a uniquely American oddity. Only two other nations besides the U.S. have one—Mexico and Guatemala. And those two countries’ gun laws are nowhere as liberal as ours. Mexico bans the sale or possession of automatic or semi-automatic firearms entirely; there’s only one gun shop in the whole country, on a heavily-guarded army base in Mexico City. Guatemalans can buy semi-automatic weapons, handguns, rifles and shotguns but only with a permit that is hard to get. And ammunition is rationed.

A brand-new United States freshly liberated from the yoke of British colonialism probably wouldn’t draft a Second Amendment as we know it. We’re no longer a rural society, 95% of Americans don’t hunt and guns have gotten bigger and scarier.

One of three Americans own a gun, so guns would probably remain legal. But there would be regulations limiting firepower and some sort of licensing regime. Following endless mass shootings, Americans currently favor stronger gun-control laws by a 64%-to-28% margin, according to an April 2021 Politico poll. “Almost half — 46%— said that limiting gun ownership was more important than protecting the Second Amendment, while 44% said that gun ownership rights were a higher priority,” reported The Hill. If gun rights made it into our new constitution, odds are that such a provision would be far weaker than what we have now.

But the Second Amendment, and all the rest, remains impervious to change. Which itself won’t change until we start asking ourselves: why?

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of a new graphic novel about a journalist gone bad, “The Stringer.” Order one today. You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)

SYNDICATED COLUMN: Don’t Fall for the First Amendment = Free Speech Trick

Image result for soviet censorship

Like climate change, this is one of those problems I keep expecting people to wise up about but — because they never do — it keeps getting worse.

Thus this tutorial.

The problem is that too many Americans conflate the First Amendment with free speech.

You see it when people discuss the current social-media crackdown against controversial right-wing radio talk show host Alex Jones and his website InfoWars. Jones was banned by Facebook, YouTube (which is owned by Google), Apple and Spotify, and more recently suspended by Twitter for one week. Writing in The New Yorker Steve Coll mocked Jones for calling himself the victim of “a war on free speech.”

“Such censorship is not unconstitutional,” Coll reminds readers. “The First Amendment protects us against governmental intrusions; it does not (yet) protect speech on privately owned platforms.”

The U.S. government is rarely in a position to censor Americans’ freedom of expression. Because the vast majority of censorship is carried about by non-government entities (like the social media companies blocking Jones) the First Amendment only bans a tiny portion of censorship.

Some government agencies do censor the press. A federal judge ordered The New York Times to halt publication of the Pentagon Papers in 1971. The LAPD, whose pension fund owned part of the parent company of The Los Angeles Times and was angry about my work criticizing its brutality and incompetence, ordered the Times to fire me as its cartoonist. They complied. Annoyed by an editorial in the local paper criticizing them for conducting random searches of high school students at basketball games using dogs, the police in Baker City, Oregon created a fake dossier of crimes committed by the editorial writer, which they used to get him fired from his job.

These cases are covered by the First Amendment. But they are outliers.

We can’t protect existing rights if we don’t understand the current parameters of the law. New rights arise from unfulfilled political needs and desires; we can’t fight for expanded protections without defining what is lacking yet desired. Schoolchildren and student journalists, both public and private, are constantly running up against censorship by teachers and administrators. Employers constrain political speech, obscenity and other forms of expression on the job. These are free speech but not First Amendment issues.

In recent decades opponents of free speech, mostly but not exclusively on the right, have relentlessly conflated First Amendment debates with those over free speech. The effect has been to reduce society’s expectations of how much freedom we ought to have to express ourselves.

Take the Jones case.

Writing for the website Polygon, Julia Alexander provides us with a boilerplate (liberal) response to Jones and his allies’ complaints that the big social media companies are suppressing his free speech. First she described some of the episodes that prompted banning Jones, such as pushing PizzaGate and Sandy Hook shooting denialism. Then she pounces: “It’s not a freedom of speech issue, nor one of censorship,” Alexander writes. “The First Amendment…gives American citizens the freedom of speech…The United States government isn’t bringing the hammer down on Jones. This isn’t a political issue, as badly as Jones might want to pretend otherwise.”

See what Alexander did? In just a few sentences she squeezes and smooshes the extremely broad practice of “censorship” into the relatively tiny box of “the U.S. government…bringing the hammer down.” I don’t mean to pick on her — I’ve seen this same exact ball of sophistry used over and over by countless other pundits.

Of course Twitter, Facebook et al. are censoring Jones. Of course the First Amendment doesn’t cover him here. Obviously it’s a freedom of speech issue. The question — the question pro-censorship folks like Alexander doesn’t want us to ask — is, is it right?

For what is right is not always what is legal (see: slavery). Alex Jones and his allies may or not be legit. Their political arguments often are not. But the question they’re asking here is legit and important: should companies like YouTube have the power to suppress speech — any kind of speech?

Alexander ends with a message you ought to find chilling: “Don’t publish vile content, and your video will probably be a-ok.”

“Probably”?

Who gets to define “vile”? Alexander? Mark Zuckerberg, apparently.

Obviously it is a political issue. But that’s not the main point here.

Free speech used to belong to the man with the means to buy ink by the barrel. Now you can buy a newspaper for pennies on the dollar, but who will read it? Much if not most of the political debate in our civic life takes place on platforms owned, controlled and censored by the companies blocking Jones’ content. They write and enforce their own rules. As private companies they are unaccountable to we, the people. We don’t know how they make censorship decisions or who makes them.

Perhaps this is a splendid state of affairs. Maybe Americans don’t mind surrendering control of political debate to faceless tech giants.

Whatever we decide, however, we deserve a transparent discussion. We ought not to let ourselves be fooled into falsely equating free speech to the First Amendment. Free speech means exactly that: everyone and anyone can say anything at all, anywhere they please, to anyone.

Every First Amendment case is a free speech issue. But only a tiny fraction of free speech issues is a First Amendment case.

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of “Francis: The People’s Pope.” You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)

Distributed by Creators Syndicate

(C) 2018 Ted Rall, All Rights Reserved.

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