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.

Video & Transcript: Hillary Clinton on Meet the Press (2 May)

US Secretary of State Hillary Clinton popped up on NBC Television's Meet the Press on Sunday. The chat started initially with domestic issues --- the oil spill off the Louisiana coast and immigration --- but then took in Afghanistan, Iran, and Sudan.

Notable points are Clinton trying to evade both the question of an inclusion of the Taliban in the Afghanistan political process and the recent revelation of an expansion of the Taliban's influence across the south of the country and her snippy dismissal of President Ahmadinejad's appearance at the Nuclear Non-Proliferation conference at the United Nations: "I don't know what he's showing up for."

Clinton's appearance begins around the 11:00 mark in the video:

NEW Afghanistan Analysis: The Growth of the “Taliban Zone” (Porter)
Afghanistan Analysis: A Very Bad Six Months (White)
The Latest from Iran (3 May): Mahmoud’s Road Show

Visit msnbc.com for breaking news, world news, and news about the economy

MR. GREGORY: What's certainly in the headlines this weekend is this oil spill off the coast of Louisiana and Mississippi, and it becomes a bigger issue and even a national security issue in--as it applies to climate change, which is an issue that you've dealt with. How will the administration approach this, particularly given the president's interests in offshore drilling? Does that have to stop now?


SEC'Y CLINTON: Well, David, I think that the president has ordered the departments that deal with this, Homeland Security, Interior, Environmental Protection, Defense to all immediately, not only do everything possible to mitigate the effects of this spill, but to try to come up with recommendations going forward. First order of business, however, is to try to get this spill under control--which has been, as you know, very difficult--and to prevent further damage to the coastline along Louisiana to the fishing waters, to the wildlife. I think it does raise questions, which the president has said have to be answered. He put forth a very comprehensive approach that included the potential of drilling off of our own shore. That is a national security concern because we have to do better to lessen our dependence on foreign oil. But it has to be done safely. It can't be done at the risk of having to spend billions of dollars cleaning up these spills. So, as with so much in these difficult areas, it's going to require a balancing act.

MR. GREGORY: Another area that has become a domestic political debate over immigration has also taken on some international ramifications. Mexico, because of the law, the stringent law against--anti-immigration law passed in Arizona has issued a pretty unusual alert...

SEC'Y CLINTON: Mm-hmm.

MR. GREGORY: ...to its own citizens traveling to Arizona. I'll put it up on the screen. This is the alert, a travel alert over Arizona immigration law. This is how the USA Today reported it on Wednesday. "The country warned that the state's adoption of a strict immigration enforcement law has created `a negative political environment for migrant communities and for all Mexican visitors.'

"`It must be assumed that every Mexican citizen may be harassed and questioned without further cause at any time,' according to the foreign ministry." The president, President Calderon, with whom you'll meet soon has talked about criminalizing--"this law criminalizes a largely social and economic phenomenon of migration." This is a pretty big shot across the bow to America here.

SEC'Y CLINTON: Well, it is, and, and I think if you look at it, again, you have a lot of unanswered questions. This law, which is clearly a result of the frustration that people in Arizona and their elected officials feel about the difficulty of enforcing the law along our border and preventing the continued immigration, people who are not documented. But on the other hand, it is written so broadly that if you were visiting in Arizona and you had an accent and you were a citizen from, you know, my state, of New York, you could be subjected to the kind of inquiry that is call--that this law permits.

MR. GREGORY: You think it invites profiling, racial profiling?

SEC'Y CLINTON: I don't think there's any doubt about that because, clearly, as I understand the way the law is being explained, if you're a legal resident, you still have to carry papers. Well, how are--how is a law enforcement official supposed to know? So, again, we have to try to balance the very legitimate concerns that Americans--not just people in Arizona, but across the country--have about safe and secure borders, about trying to have comprehensive immigration reform, with a law that I think does what a state doesn't have the authority to do, try to impose their own immigration law that is really the province of the federal government.

MR. GREGORY: That's important. Do you think this law will not stand up legally?

SEC'Y CLINTON: Well, I don't want to offer a legal opinion. I, I think I'll leave that to the Justice Department, but I know the attorney general of Arizona has raised questions about the legality. And you're right, we have a visit from President Calderon coming up, a state visit. He's a very important partner to us on trying to stop illegal activity along our border--the importation of drugs, of arms, of human beings, all of the crime that that's associated with--and we believe that he has really done the best he can under very difficult circumstances to get this under control. We don't want to make his life any harder either. We want to try to support him in what has been a courageous campaign against the drug traffickers.

MR. GREGORY: Let me move on to some other issues that are obviously on your plate, which is a, a big plate of issues.

SEC'Y CLINTON: Yes.

MR. GREGORY: Let's talk about Afghanistan. A big offensive is being planned for Kandahar, a very important visit by President Karzai's coming up after a period of turbulence between the U.S. and Karzai, which I know the administration has tried to tamp down. And yet, it's the nature of the insurgency that our fighting men and women are dealing with, and the Pentagon issued a report that was reported on by the Los Angeles Times on Thursday. Let me put it up on the screen. It says, "The report presented a sobering new assessment Wednesday of the Taliban-led insurgency in the country, saying that its abilities are expanding and its operations are increasing in sophistication, despite major offensives by U.S. forces in the militants' heartland," like Marja.

"The new report offers a grim take on the likely difficulty of establishing lasting security, especially in southern Afghanistan, where the insurgency enjoys broad support. The conclusions raise the prospect that the insurgency in the south may never be completely vanquished, but instead must be contained to prevent it from threatening the government of the President Harmid Karzai."

A narrow question here. Are you resigned to the fact that the Taliban, the insurgency, will have to be a part of this government in the future?

SEC'Y CLINTON: No. And let me start by putting the, the recent report from the Pentagon into context. It was a look back. It goes from last October through March. When we were devising the strategy that the president announced at West Point in early December, it was during the August, September, October, November period. And there was no doubt that the Taliban had the initiative, that there was a very serious threat to not only our forces, obviously, on the ground, but to the stability and security of Afghanistan.

MR. GREGORY: But you hear all this talk, and Karzai wants some kind of reconciliation with the Taliban as well.

SEC'Y CLINTON: Well, but, David, I think that we have to sort of sort out what we mean by that. We talk about reconciliation and reintegration. They may sound the same, but they're somewhat different concepts. Reintegration refers to the foot soldiers on the field who are coming in increasing numbers and saying, "Look, you know, we're fighting because we get paid. We're fighting because we were volunteered to fight because the Taliban came to our village and intimidated our, our, our elders. So there, there seems to be an ongoing movement of people sort of out of the battlefield. And General McChrystal and his commanders on the ground are seeing that and kind of organizing and running that.

The larger question about reconciliation--I don't know any conflict in recent times that didn't have some political resolution associated with it. People either got tired of fighting and decided they would engage in a peace process, they were defeated enough so that they were willing to lay down their arms. What President Karzai is saying, and we agree with this direction, is that you've got to look to see who is reconcilable. Not everybody will be. We don't expect Mullah Omar to show up and say, "Oh yeah, I'm giving up on my association with al-Qaeda, etc." But we do think that there are leaders within the Taliban--in fact, there are some already who have come over to the other side. Now, if they do so, they have to renounce al-Qaeda, they have to renounce violence, they have to give up their arms, and they have to be willing to abide by the Afghan constitution.

R. GREGORY: Another adversary, of course, gets us to Iran and the fact that President Ahmadinejad from Iran will be coming to New York to the U.N. for a nonproliferation meeting.

SEC'Y CLINTON: Right.

MR. GREGORY: You're moving down a path of sanctions, we understand what that is. Do you feel like he's going to try to show up here the early part of next week and steal the show?

SEC'Y CLINTON: I don't know what he's showing up for because the purpose of the non-proliferation treaty review conference is to reiterate the commitment of the international community to the three goals--disarmament, non-proliferation, the peaceful uses of nuclear energy. So the vast majority of countries are coming to see what progress we can make. And this is a very high priority for President Obama. It's why he pressed so hard for the START treaty, which he signed with President Medvedev in Prague. It's why he convened the nuclear security summit to highlight the threat posed by nuclear terrorism. It's why we have begun to work out deals with India and others for the peaceful use of nuclear energy, which countries are entitled to under the non-proliferation regime. If Iran is coming to say, "We're willing to abide by the non-proliferation treaty," that would be very welcome news. I have a feeling that's not what they're coming to do. I think they're coming to try to divert attention and confuse the issue. And there is no confusion. They have violated the terms of the NPT, they have been held under all kinds of restrictions and obligations that they have not complied with by the IAEA, the International Atomic Energy Agency, by the U.N. Security Council. So we're not going to permit Iran to try to change the, the story from their failure to comply and in any way upset the efforts we are in the midst of, which is to get the international community to adopt a strong Security Council resolution that further isolates them and imposes consequences for their behavior.

MR. GREGORY: Madam Secretary, I'd like to spend a couple minutes on some other global hot spots that you're dealing with. The first one is actually with America's strong ally in the U.K., in Great Britain. Very interesting election going on. You've got three candidates, a resurgent third party in the Social Democrats, televised debates. You know something about those.

SEC'Y CLINTON: I do.

MR. GREGORY: And as you watch what's going on there, do you think there's a movement that could spread? Do you see a third party becoming viable in the United States?

SEC'Y CLINTON: Well, let's see whether it's viable in the U.K. I, I don't know the answer to that. We had, in my lifetime, and certainly long before, viable third party candidates. We've, you know, had Ross Perot, John Anderson, you know, just within my voting history. I think there's always room in a democracy for people to bring their views to the forefront. But I think one of the real strengths of our system has been our two-party approach, where each party may frustrate some of its own members because they, they do have a broad cross-section of voters and opinions. But, look, I'm going to be as interested in anybody in seeing what happens in the election in Great Britain.

MR. GREGORY: Final one has to do with the election in Sudan, where you have Bashir as the victor. And yet, this is--Sudan is a sponsor of state terror, according to the State Department. And this is someone who's boasting about the results and keeping the United States at bay. Nicholas Kristof wrote this in The New York Times: "Until he reached the White House," President "Obama repeatedly insisted" the U.S. "apply more pressure on Sudan so as to avoid a humanitarian catastrophe in Darfur and elsewhere. Yet, as president, Mr. Obama and his aides have caved, leaving Sudan gloating at American weakness. ...

"President" Bashir, "al-Bashir of Sudan - the man wanted" ... "for crimes against humanity in Darfur - has been celebrating. His regime calls itself the National Congress Party, or N.C.P., and he was quoted in Sudan as telling a rally in the Blue Nile region:" Every America--"`Even America is becoming an N.C.P. member. No one is against our will.'

"Memo to Mr. Obama: When a man who has been charged with crimes against humanity tells the world that America is in his pocket, it's time to review your policy." What do you say?

SEC'Y CLINTON: Well, I would say that, number one, I, I can't take anything seriously that Bashir says. He is an indicted war criminal. The United States is very committed to seeing him brought to justice. But let's look at what's happening in Sudan, because I have the greatest respect, of course, for Nic Kristof and others who share my deep dismay at events in Sudan. But here's what we're trying to do. When we came into office, Bashir threw out the, the groups, the non-governmental organizations who were providing most of the aid in the camps in Darfur, which could have been a disastrous humanitarian crisis. We were able to get a lot of the help back in, and we're beginning to see some slight progress in Darfur. I don't want to overstate it because it is still a deplorable situation. But we're working to try to get the people back to their homes, out of the camps. At the same time, you had this election going on. It was, by any measure, a flawed election. There were many, many things wrong with it, but there hadn't been an election in many years. And so part of our goal was to try to empower opposition parties, empower people to go out and vote. Thousands and thousands did. The result, I think, was pretty much foreordained that Bashir would come out the winner, and that's unfortunate. We are turning all of our attention to trying to help the south and to mitigate against the attitudes of the north. I, I can't sit here and say that we are satisfied because I'm certainly not satisfied with where we are and what we're doing, but it is an immensely complicated arena.

Now, the United States could back off and say, "We won't deal with these people, we're not going to have anything to do with them, Bashir is a war criminal." I don't think that will improve the situation. So along with our partners--the U.K., Norway, neighboring countries--we are trying to manage what is a very explosive problem.

MR. GREGORY: Just a couple minutes left. I want to ask you about another big thrust of your time as secretary of State, and that is forging--well, I should say, a realization that there are limits to what government can accomplish around the world.

SEC'Y CLINTON: Mm-hmm.

MR. GREGORY: You have spent a lot of time working with the private sector...

SEC'Y CLINTON: Mm-hmm.

MR. GREGORY: ...to achieve certain commercial goals, also to achieve goals like the empowerment of women. You've got an announcement this, this weekend having to do with the China Expo...

SEC'Y CLINTON: Right.

MR. GREGORY: ...and the U.S. role in the China Expo, as well as efforts to empower women around the world in developing countries through the help of the private sector. Why is this really the, the route of the future for the government?

SEC'Y CLINTON: Thank you for asking me that because that is exactly what I believe, that diplomacy today is not just government to government. Part of what I had to do when I became secretary of State was to rebuild America's image, standing, and leadership in the world; and certainly President Obama is, you know, our greatest advocate of that. But you can't just do that by the government saying things or even by our president making incredibly important speeches. You have to begin to engage the people in other countries; and, in order to do that effectively, I want more people to people contacts, I want more private sector partnerships with our public sector and with people around the world.

Let me give you two quick examples. You mentioned the Shanghai Expo. You know, there are probably 70 million plus people who go through that Expo. When I became secretary of State, there was no money raised because we don't put public money into a project like that. So with the help of a lot of very dedicated corporate sponsors, we now will be a player in that Expo. Now, what does that mean? Well, when those 70 million Chinese, mostly Chinese, but people from elsewhere in the world, go through, they're going to learn something about America. They're going to learn something about, you know, our values, about our products, about, you know, how we live. I think that helps to build the kind of understanding and connection that is at the root of good relations.

And on women's issues, we just had a great announcement through the combined efforts of a number of corporate sponsors, foundations like the Rockefeller Foundation. We're going to be working to help empower women doing what they do best and to try to up their education levels, their health levels. Why does this matter? Because it's the United States doing it. And it's not just the United States government, it's the people of the United States.

MR. GREGORY: Before you go, a question about whether you think it's realistic that you will stay on as secretary of State for the balance of the first term.

SEC'Y CLINTON: Well, I intend to, yeah.

MR. GREGORY: You do intend to?

SEC'Y CLINTON: I intend to, yeah. But, I mean, you know, people have been asking me this and in, in the interest of full disclosure, it is an exhausting job. But I enjoy it, I have a great time doing it. I feel like we're making a difference around the world, that--you know, I'm a big believer in setting goals, having a vision of where we're trying to get, but then trying to translate that into what we do today and what we do tomorrow. And we've made a lot of progress. We face incredibly difficult problems.

MR. GREGORY: But so, you, you think you'll stay for the whole first term?

SEC'Y CLINTON: Well, I think so. I think so. I mean, look, you know, ask me next month and the month after that. But that certainly is my intention.

MR. GREGORY: And yet you don't care to be on the Supreme Court?

SEC'Y CLINTON: Oh, never. I mean, I'm glad, I'm glad you asked me that.

MR. GREGORY: You're a lawyer with all that background.

SEC'Y CLINTON: I am--I do not and have never wanted to be a judge, ever. I mean, that has never been anything that I even let cross my mind because it's just not my personality.

MR. GREGORY: Do you think the president should pick another women--woman this time?

SEC'Y CLINTON: I think he should pick a very well-qualified, people-savvy, young person to be on the Court to really help to shape the jurisprudence going forward. I think that, you know, it's not a surprise that there's a real division on the Court, and a lot of decisions that have great ramifications for the people of our country, that I would like to see someone put on the Court who can really try to shift the direction of the current Court.

MR. GREGORY: Secretary Clinton, thank you, as always.

SEC'Y CLINTON: You're welcome.