The Political Spectrum

This opinion piece in today’s Christian Science Monitor asks one of the best questions I’ve seen in quite sometime with respect to Iraq. As Paul previously mentioned the Iraqi constitution has been delayed for at least a week or so, which while disappointing in one sense, is neither a major setback, nor a surprise given the difficulty and national/international importance of their task. In fact, after a bit of deliberation, I think it is probably for the best that they delayed as opposed to rushing forward, even if the changes that result are only minor. Moreover, more delays may be likely and they should be encouraged as long as the process continues show progress.

But those aren’t the questions of the CSM piece. Rather the author turns the question inward by asking if we the United States of America, gold standard for constitutional republicanism could accomplish the same task today if we were forced to. The author concludes that such a task would be impossible in today’s political climate, in short he finds that:

First, we'd argue over whether current amendments should stick around; over
whether there should be new language articulating a right of privacy. Someone
would float a provision protecting the flag from the scourge of desecration.
Another would propose limiting the right to bear arms, so Uzis don't flood the
cafés. Someone would maintain it's critical for us to define when life begins,
so we can protect the unborn from abortion. And so on. You can make your own
list from today's headlines.

While I don’t disagree with the list of problems that new constitution drafters would have to deal with, I think it suffers from the same fundamental flaw that plagues most current discussions of our Constitution. Namely, it puts all of the emphasis on the wrong part of the Constitution, the Bill of Rights, rather than where I personally think it should be which is on Articles I -VI.

This is not to say that the issues relating to the Bill of Rights are not important, or that they would be easy to address if we were drafting a new Constitution today, but only that I think the general public tends to put far, far to much emphasis on the “individual rights” portion of our Constitution as opposed to its far more important function, which is establishing the rules, procedures, and principles that allow our institutions of government to function.

Allow me to take a slight detour here for a minute to make this point clear. Take the recent nomination of Judge Roberts for the Supreme Court. Much of the early debate, as we all know, was focused on abortion, and the current debates seem to be about abortion, civil/women’s rights, the role of religion in government, and the release of documents from his time with the Solicitor General’s office. I don’t think that the majority of Americans understand that in the scheme of what the Supreme Court does these issues are trivial at best. I’m not saying that they aren’t critical to American jurisprudence and that they are not important, I’m saying they aren’t as important as everyone thinks. Look at abortion, since Roe v. Wade was decided in 1973 there have been 31 Supreme Court terms. Taking the average number of decided cases per term as 80 (which is actually a very conservative number as in the 70’s and early 80’s the number was actually much closer to 90-100 decisions per term, it is only recently, i.e., within the last 10 or so years that the number of decisions per term has dropped significantly) that makes approximately 2,480 opinions. Of those there have been how many other abortion cases? I can name the following 8: Webster v. Reproductive Health Services, Planned Parenthood v. Danforth, City of Akron v. Akron Center for Reproductive Health, Inc., Thornburgh v. American College of Obstetricians and Gynecologists, Bellotti v. Baird, Planned Parenthood Association of Kansas City, Missouri Inc. v. Ashcroft, Planned Parenthood of Southeastern Pennsylvania v. Casey, Stenberg v. Carhart, and I am sure that there are several others that I am missing, but even if I’m missing as many as 16 cases, they still would only make up about 1% of the Court’s docket over the last 31 years (probably less than 1% given my rather conservative estimate of the annual number of decided cases). So what has the other 99% of cases been about? I submit that the overwhelming majority of the remaining 99% have been cases concerning things like statutory construction, state law disputes, criminal law/death penalty cases, and other federal power/administrative law decisions.

Back to my main point; take a look at Articles I-VI and how many controversial decisions would have to be made if we were drafting a Constitution today. Let’s start with the merits of proportional representation? I think this would cause disputes among representatives from many different regions. The west and southwest, most definitely in favor, the northeast and plain states on the other hand are likely to be less supportive of the notion. Try Bicameralism? There are decent arguments that this is more of hindrance to efficient government than a benefit, for example the Minnesota debate over this issue about 4 or so years ago now, when Jesse “The Body” Ventura was governor. (Nebraska by the way is the only state with a unicameral legislature.) Whether to have a part-time v. full-time legislature? Certainly this is a debatable proposition. What about this one, that I’m sure will get Paul and GC’s attention, the delegation doctrine, which is largely responsible for the federal administrative state? I think there may be support for reigning in Congress’s ability to create independent agencies and growing the size of the federal government. I think you see where I’m going and I haven’t even made it out of Article I yet. I also want to point out Article VI, which contains the Supremacy Clause and is the major source of the preemption doctrine, which, as many of you know, gives the federal government the power to override state decisions in favor of a national, federal solution. This is another part of the Constitution that I am sure would be rethought today if we were given the option.

All this is by way of saying that we shouldn’t be too quick to judge the Iraqis based on their ability to draft Constitutions. Our own, with all of its compromises, laudable provisions, and faults, took, I believe, about 4 months of closed-door meetings to write and 3+ years before it was finally ratified by 9 of the 13 colonies. Remember, the Bill of Rights wasn’t added until 1791, thus, it wasn’t even a part of the original document. We should remember that the main purpose of the Constitution is to provide a framework for governing, it doesn’t provide, or even purport to provide, all the answers to our political problems, and nor should it. Our Constitution is a blueprint, not a final draft, which leaves plenty for our elected representatives to decide. It’s not the only type of Constitution out there (see many of the State constitutions currently in place which are far more detailed than the federal version) but it has served us well for the past 2+ centuries, we can only hope that Iraq does a fraction as well, for if it does that will be a resounding success. I sincerely doubt that, even with our best and brightest and with the best of intentions, we could improve upon ours without considerable struggle, strife, and obstacles.