Monday, May 10, 2010

The original Constitution was flawed, and not just because of the slavery provisions.

Republican National Committee Chairman Michael Steele and some of his fellow travelers are trying to suggest that Supreme Court nominee Elana Kagan is not qualified to serve on the high court because in a 1993 law review article she wrote that the Constitution as originally enacted was defective.

Steele's criticism has been widely ridiculed because anyone with the least understanding of the issue knows that Kagan was pointing out that the original Constitution not only endorsed slavery but also provided for slaves to be counted as three-fifths of a white person for purposes of Congressional apportionment. Additionally, Kagan's article was written in honor of the then recently deceased Justice Thurgood Marshall who had made the same point in a speech in 1987 at a commemoration of the 200th anniversary of the Constitution. For this reason alone, Kagan's criticism of the original Constitution is unassailable.

But that criticism of the Constitution is manifestly valid for another reason — the original Constitution did not include the Bill of Rights, those first ten amendments that guarantee our liberties.

It is hard to imagine anyone thinking that a Constitution without the following provisions was not defective:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

And yet that appears to be the position of that noted Constitutional scholar Michael Steele. Or maybe his education stopped before his first American history class. For whatever reason he doesn't know that the Constitution as originally adopted by the Constitutional Convention on September 17, 1787 and as ratified on June 21, 1788 was considered flawed by many of the framers because it did not include a bill of rights. That flaw almost kept the Constitution from being ratified.

During the drafting of the constitution there had been considerable debate as to whether or not to include specific provisions guaranteeing the rights of citizens. A proposal was made to include such provisions but it was defeated by the Constitutional convention. The issue was not whether individual rights should be guaranteed, but whether including such provisions in the Constitution was appropriate. Many framers thought that the existing bills of rights in each state had would be sufficient to protect the citizenry. There was also concern that if the Constitution enumerated certain specific protected rights that would suggest that other rights not mentioned would not be protected. The debate surrounding this issue was one of the dividing lines between the Federalists who favored adoption of the Constitution and the anti-Federalists who opposed its adoption.

After the first five states ratified the constitution, the absence of a Bill of Rights became a real stumbling block in Massachusetts. Some members of the Massachusetts Legislature opposed ratification on this ground alone and others said that the state's ratification should be contingent upon adoption of a Bill of Rights. A compromise was reached whereby Massachusetts ratified the Constitution but with strong recommendations for the adoption of a Bill of Rights. That same posture was taken by four more states. As a result, when the first Congress met on March 4, 1789 James Madison proceeded to draft a list of 10 amendments patterned on the Virginia's Declaration of Rights. These amendments which came to be known as the Bill of Rights were ratified by three fourths of the states on December 15, 1791.

To recap for the benefit of Mr. Steele, the first ten amendments to the Constitution were not enacted until three years after the Constitution was ratified and four years after it was adopted by the Constitutional Convention.

There is a special irony in Mr. Steele and his Republican cohorts ignoring this obvious deficiency in the original Constitution - the original Constitution did not contain their two favorite provisions.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Imagine that. According to Mr Steele a Constitution without the right to bear arms would be a perfect document. And that document would not be in the least defective if it was silent on the rights reserved to the states and the people. Oh yes. The document would also be perfect if people could own slaves and if slaves counted as three-fifths of a white man for purposes of Congressional representation.

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