Matlin's America: Is the US Constitution Fit for Purpose?

In a 40-year professional lifetime of reading countless statutes, regulations, and legal documents, there were only two occasions when I realised instantly that I had read something exceptional.

One of these occurred over The Partnership Act of 1890, a 12-page document I was required to understand to pass one of my many lawyers’ exams, a document written in language as succinct as humanly possible. The other document was the American Constitution, which I read when I was at school. I was instantly impressed by its clarity of language, a reaction I remember all these years later. I recall its approach to the structure of government, the certainty of separation of powers, and the potential tensions between the three branches of federal government, although I didn’t think in exactly those terms. For me, the document was a work of art.

I am envious of Americans with their Constitution. We Brits, too, have a written constitution but it is not codified into one document. We have common law, statute, and legal precedent. We also have a Bill of Rights, passed in 1688 following the bloodless Glorious Revolution, when “the Crown in Parliament” became the supreme power. Our Bill of Rights, however is not a document anywhere near as influential as the American version.


Until 2009, we Brits did not have branches of government whose powers were clearly separate and enforceable as such. Our executive branch, namely the Prime Minister and his or her Cabinet, were also legislators, so no separation of powers there. The Law Lords, our equivalent of the Supreme Court, were not excluded from the House of Lords, acting as a legislative body, until last year. The strong government whipping powers in the House of Commons makes certain that the demands of the executive will always be met by legislators.

In contrast, Americans do not have to put up with attempts by the executive to circumnavigate separation of powers or force through legislation. I know of only one exception to US separation powers, namely when the Vice-President, sitting as chairman of the US Senate, casts a deciding vote in the event of a tie.

However, as an interested observer, I cannot regard the Constitution as perfect. It has surprising omissions. For example, there is no declaration of “one person, one vote”, which is one of the bedrocks of democracy. Perhaps this is an indication that the framers were not too impressed by the educational standards of the poorer of their fellow citizens.

Also, the Constitution makes no provision whatsoever for the regulation of city or town government. True, the largest American city in the 1780s was Boston, with a population of some 8,000 persons, thus there was no apparent urgency to legislate for smaller communities. However, the framers were aware that by 1789, Europe boasted large city populations, like Paris (750,000) and London (700,000), and it was easily foreseeable that the American urban population would rapidly increase. Indeed, Jefferson warned it would happen.

Apparently, the founders had more than enough to cope with between 1789 and 1792, deciding upon the rules for a federal government and getting the Constitution ratified by the states. City government would be a matter for local citizens and the states.

I like the immediacy of conflict, built into the Constitution, between the executive and legislature. A President’s legislative programme has to be championed into Congress. Positions on the legislation are taken rapidly, and a President can quickly gauge the difficulties he may have to face to get passage of his programme. Each body alson has advantages and disadvantages, not specified in the Constitution. For example, the Senate’s power of filibuster, which is a Congressional rule and not a constitutional power, can be removed or altered, as it was during Truman’s presidency, if Congress so decides. Within the executive, a President has what Teddy Roosevelt called “the bully pulpit”, namely the power to persuade through all kinds of media outlets who need to report daily on Presidential activities.

To counter the speed of conflict between the executive and legislative branches, the Supreme Court’s role is often decidedly slow. It took two years before Roosevelt’s New Deal programme was torn apart by the Court.

Still, the Supreme Court is an extraordinary device and is rightly held in high esteem. Undoubtedly, it is a political body but most of the time, it seeks to transcend partisan politics. On occasion it fails, for example when the 2000 Presidential election was handed to George W. Bush by the Court. However, even in this case, the Court was careful to state that its judgement was “not to be taken as a precedent”.

Where I struggle with the American Constitution is on interpretations made by the Court. Let us consider the First Amendment and the ruling of the Supreme Court that “speech” and “money” cannot be separated in the political sphere. It seems that the law permits a citizen to say anything he likes and to spend his money wherever and on whatsoever he chooses.

Recently, the Supremes extended the First Amendment ruling to corporate bodies. The court failed to impose a conservative or strict construction test upon what is constitutional. Furthermore, this ruling is difficult to reconcile with the ideals of Founding Fathers who sought to escape the privilege and abuse of wealth of their British masters. In 1792, would the framers have approved of a rival Presidential candidate, who could spend his way to power, to George Washington?

Not long ago, John McCain, together with Russ Feingold, sponsored a fair and reasonable statute on campaign finance. That statute is now in tatters, mainly as a result of Supreme Court rulings. Is this what Congress intended to happen? There seems to be something corrosive and corruptive in a political system that allows money, not ideas, to be the dominant factor in an election.

I am also deeply troubled by the interpretations of the Second Amendment over the "right to bear arms". I know I am treading on hallowed ground and expect many brickbats. Did the framers really intend citizens to have the right to own semi-automatic weapons? By extension, what is there to prevent a citizen from parking a Centurion Tank in his front yard?

My argument is based on legal reason. The Second Amendment provides as follows: “A well regulated militia being necessary to the security of the State, the right of the People to keep and bear arms shall not be infringed.”

The opening clause of the Amendment is what we lawyers call a condition precedent, in other words something which must occur or be in existence before the rest of a provision can apply. The words are plain. “Militia” in late eighteenth century-speak meant a legally constituted armed force. If a person was a member of such a force, he might keep and use a weapon as part of his duties. How can this Amendment be interpreted to allow Americans in many states to go to a gun show and buy and lawfully keep a weapon?

Now, I am happy to go toe to toe with any National Rifle Association member and argue principles such as “guns don’t kill, people do”. But this is not my point. I am looking at the amendment purely on legal interpretation. I do not believe that the framers had any intention whatsoever of permitting the entire American adult population to have the right to own guns. Had there been such an intention, the opening words of the Amendment would have been omitted because they would have been superfluous.

For certain, there is nothing in the Federalist Papers, the extensive discussion between James Madison, Alexander Hamilton, John Jay on the formation of the American Republic, which shows an intention to arm citizens as a matter of course or right. “Why would it?” I hear people ask. “Those discussions did not cover individual rights.” True but they covered every aspect of federal government for those times.

There are numerous examples of other decisions which cause concern, for example the Plessy v Ferguson decision enshrining "separate but equal", which contradicted not only the 14th Amendment but also the Civil Rights Act of 1875. There are the recent rulings on the Eighth Amendment over "cruel and unusual punishment". However, I know there have been innumerable brilliant decisions by the Court, dating back to Madison v Marbury in 1803.

Let me make it as clear as I can. I have no issues with a nation whose laws stem from a document that is almost 225 years old and has, by and large, stood the test of time. It is common ground that if the executive and legislative branches of the federal government cannot get the job done, it is almost always because of ideology, partisan politics, and personal problems between individuals, not the framework provided by the Constitution.

In 1937, Congress held the composition of The Supreme Court sacrosanct, when President Franklin D. Roosevelt attempted his Court Packing Plan. However, is the Court still held in high esteem today for the right reasons? I am bound to question a judiciary which seems to flout the wishes of the majority of both those elected and those who elected them, for the same ideological and partisan political reasons as members of Congress. If my argument has merit, perhaps it is the workings and processes of the Court that need to be re-examined, not the document which is supposed to be both its justification and its cause of concern.