We Need to Rewrite the Constitution – Democratic Article
Being an originalist judge in the United States of America is impossible. The Constitution is simply too old for an originalist interpretation because it is outdated and unable to address contemporary issues.
At the time of the Constitution’s writing, Black people were property and only considered three-fifths of a person and women were at the behest of men. The United States was only 13 states, the westernmost state being Georgia. The most modern form of transportation was riding a horse.
While it is impressive how resilient the Constitution is to the test of time, it must change. The now modernized United States cannot be relying on a document that is nearly 250 years old. Canada reformed its constitution in 1982. We should follow suit and give ourselves a modern document that better protects our rights and freedoms. Despite Thomas Jefferson’s despicable treatment of human beings, even he believed that it should be rewritten every 19 years. Jefferson said, “the world belongs to the living”. So let us, the living, rewrite our Constitution.
Rewriting the Constitution doesn’t mean that we will completely scrap everything in the original document. The Constitution has some very good things in it; the right to free speech, freedom of religion, freedom of press and assembly (1st), the restriction of the quartering of soldiers in private homes without the owner’s consent(3rd), and the prohibition of unreasonable searches and seizures (4th). The Constitution also allows for the creation of a federal post office. All of these are fundamentally good things.
However, there are parts of the Constitution that are not so good. It is too vague and too old. One example of this is the 10th amendment. The 10th Amendment essentially secures the states’ rights. Well, right-wing icon Antonin Scalia, supposedly a staunch textualist and originalist judge, would simply vote the conservative position when it came to states’ rights. In the case Arizona vs. The United States, Scalia voted in favor of Arizona’s harsh immigration enforcement. In a case that would criminalize homegrown cannabis even if state law allows it for medical use, Scalia voted in favor of the federal marijuana ban. “Originalist” judges are not dedicated to the Constitution, they are simply privy to their right-wing partisan bias. This is just merely one example of where an “originalist” is a smokescreen extreme conservatism.
We must have a constitution that eliminates these biases. We must have a constitution with clear wording and language that leaves no room for interpretation. We must ensure the Constitution also provides protections from discrimination.
The current Constitution leaves too many gaps. We must have a new one that secures healthcare, voting rights, democracy, personal freedom, and freedom from intrusive government and corporations. The new Constitution must also make it easy to hold politicians accountable. There is no real effective mechanism to remove a president from office. We have seen time and again that impeachment doesn’t even qualify as slap on the wrist.
The Constitution needs to be free from the scar of slavery that haunts our nation to its very core. We also need a constitution that provides an effective and competent government, not one in constant gridlock, through archaic systems such as the Electoral College and two Senators per state. We need a constitution that ensures people a good quality of life, with their rights and freedoms protected, as well as a good system of government. Only then will we be able to have true originalist judges.
Written by Democratic Writer, Ali Lahrech
Point of Information
A lot of complaints without offering any realistic solutions – A Republican Response
My colleague Ali raises some valid critiques and concerns of the originalist approach to Constitutional interpretation. Indeed, times have changed and the Constitution has certainly lagged behind in many regards. However, simply rewriting the Constitution could set a dangerous precedent which would allow the party in power to simply rewrite it every few years as they please. There’s a reason amendments exist, and that is to work to modernize and adapt the Constitution as times change.
Furthermore, while my colleague critiques the Constitution, he offers no solution beyond just rewriting it. He calls for a new constitution which protects “personal freedom”, yet we currently have something which does just that. It’s actually a rather important document called “The Bill of Rights”. The first 10 amendments of the current Constitution ensure several rights and freedoms to the individual. This includes freedom of speech, freedom of assembly, the right to bear arms, protections against unreasonable seizures, and many others. While Antonin Scalia may have not fully embraced his originalist interpretation of the law in all instances, he brought this form of thinking into the mainstream and in most cases was a staunch originalist.
It’s fair to call Scalia an ultra-conservative, but that’s not necessarily a negative thing in his case. He believes in a limited government approach to governing. In most cases, he ruled in such a manner that would ensure people’s rights were protected.
I can hand to heart say most people on the right in the United States would be wholly against burning the US Flag and would call for such an act to be considered illegal. Antonin Scalia, the supposed right-wing partisan nut, ruled in favor of protecting the right to burn a US Flag in Texas vs. Johnson. He even went as far as to say that “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” yet later stated, “But I am not king”. He chose to respect the Constitution as it was meant to be, rather than attempt to influence it with his own views.
Rewriting the Constitution won’t solve anything. I believe education is the real solution. We have brilliant minds in the field of Constitutional Law and have countless interpretations and viewpoints on the Constitution available to us. This is an opportunity to expand the teaching of the Constitution in schools properly. I agree that many parts of the Constitution are rather unclear to the layman. However, rather than rewrite it, simply presenting the language in a more easily digestible manner will help many better understand the document.
Of course, this is easier said than done. But I believe that educating the American people on what the Constitution truly stands for and means for their ability to live their lives will help fix many of the issues we currently face.
Written by Republican Writer, Sebastian Calcopietro
An uncodified constitution is the only way for America to remain updated with societal changes – A Foreign Perspective
Ali raises one of those huge political debates that is the most split along partisan lines. I agree that the Constitution is outdated and that it can allow originalist justices to justify their political motivations. However, this article fails to address Constitutional Amendments. The system of Amendments would work but the bigger issue is voter’s views. Ali mentions letting “the living rewrite the Constitution”, but the way in which the living rewrite it depends on who you ask.
Whilst I agree with Ali, not all citizens in the US share this. If they did, there would be Amendments passed. In order to amend the Constitution, there must be a two-thirds majority and therefore the support of both Democrats and Republicans. But it is stacked in favour of those who still hold dated and unprogressive views that can be seen in the document itself. As a result, it’s an unfair game and inherently argues that the founding fathers knew better than anyone that could follow. This is simply not the case.
A Constitution is there to protect and represent citizens but currently, it hardly does either. American politics is so polarised and over such fundamental issues that the Constitution cannot represent the majority of citizens. It fails to protect citizens from discrimination and has arguably encouraged it through its original wording. An uncodified constitution is the only way to ensure it can do both whilst leaving plenty of political debate. Like the UK, parts can be written protecting rights, but it doesn’t all have to be codified. This would allow it to remain modern and it could even bring American society back together.
I understand that this could be logistically impossible, but it is the only way that a Constitution can stay modern and progressive.
Written by Foreign Perspective Writer, Fletcher Kipps