Does America Need an Emergency Constitution?

Few would debate that the US Constitution is a perfect document; if it were then there would no such thing as amendments to it.  The United States began as a grand experiment in self-governance.  The people would be in charge of electing their leaders and removing those leaders should they attempt to subsume powers not legally delegated to them.  In peacetime, this experiment in government has been difficult enough as it has required fending off corruption, inherent flaws in the system, and grasps for power.  The true test of the strength of America’s government has always been how it has stood during times of crisis, especially when that crisis has involved war. 

The only real experience any of the framers of the Constitution had was with a monarchic form of government.  While they were acquainted through history books with the idea of democratic self-rule as practiced in ancient Greece and Rome, that history may well have considered mythology.  Nobody at the time of the drafting of the US Constitution really knew for sure if it could possibly work; in fact, it seemed highly dubious.  The nation was young, relatively unarmed, and certainly ripe for invasion by a well-organized military from Europe that didn’t also have to be concerned with protecting its native soil.  Fortunately, that particular scenario never arose during the first trembling years of the experiment. 

History indicated that at some point in time a threat most certainly was likely to arise from somewhere and America would be called upon to defend itself.  History also suggested that unless there was in place a strong central ruler whose word during wartime was near-absolute that internal chaos would become the greatest weapon available to any invading foe.  America, it must be remembered, was not just an experiment in self-rule, it was also an experiment in rule by assembly.  Although the King of England had to deal with Parliament, there was never any questioning that he was the sovereign head of state.  The position of President was created to produce a chief executive and a commander-in-chief, but it was never intended to be endowed with the powers of a sovereign ruler.  The framers of the Constitution purposely resolved not to give the President the powers of a king, not even during times of invasion. 

The Constitution of the United States, the foundation of law upon which America rests, was written specifically to eliminate a route by which any single person or entity could gain so much power as to become anything even remotely like a monarch.   This document delineates the separation of powers between the legislation of laws, the execution of laws and the interpretation of laws.  The idea was to create a system in which the problems that were inherent in the longstanding monarchic system could be avoided.  Simply having a sovereign be subject to a legislative body was not enough; the legislative body and the sovereign had to be equal in power.  In addition, the authors recognized that a third body needed to exist which would maintain oversight over the other two.  In the event of a stalemate between the legislative intent and the execution a court system not beholden to either would be necessary to interpret. 

As a theoretical construct the US Constitution is much closer to being perfect that as it has been practiced and the reason for this comes down to the human factor.  These three branches of government exist on two separate planes: the abstract and the real.  As abstractions it would hard to come up with something better.  As practiced in the real world, however, they are dependent upon the vagaries of the human ambition and human error.  Throughout American history all three branches of government have at times attempted to overextend the powers given them by the Constitution.  Sometimes these extensions are merely the result of misinterpreting what is often viewed as an incredibly vague set of laws.  Other times, of course, those extending their powers have done so with full knowledge and intent. 

The problem of misinterpretation goes back to the very founding—perhaps even the very drafting of the Constitution.  The vagueness of the document carries with it a twofold effect.  In the first place, any foundational document of law must by nature be vague or else it would be unwieldy.  No constitutional foundation of law could or should address every law with microscopic specificity. The purpose of a constitution is to constitute the idea of the law; the purpose of the law.  The idea and purpose set forth in the US Constitution is that this country will be founded on democratic principles.  That is, there shall be no attempt to restrict the rights of the citizens. 

The debate over interpretation of the Constitutional powers became a subject of debate almost from the minute George Washington was sworn in as President.  This debate is personified in the oppositional viewpoints of two of the legendary figures of that era, Alexander Hamilton and Thomas Jefferson.  Alexander Hamilton, who doubted that the Constitution could ever be effectively realized in practice, felt that the problem was directly attributable to the document’s vague qualities. Hamilton rightly saw that anyone could read into the vague wording whatever they wanted and justify any action undertaken.  Jefferson disagreed only with Hamilton’s final assertion.  While recognizing that it was a vague document, Jefferson took the view that this enhanced its power. The nebulous qualities of the Constitution meant precisely that it had to be adhered to with the utmost strictness of interpretation.  Exactly because anyone could read into what they wanted was why it was important to interpret it only in how it was specific.   Jefferson realized that this would strip the people of their rights and in that way destroy the ideals of America. He believed the constitution should be read strictly.  The problem, then, isn’t really one of vagueness, but rather of interpretation.  And as long as the interpretation is found upholding democratic ideals, interpretation becomes almost meaningless.  

This foundation is the single most important element of that document known as the Constitution.  Specific laws have been written into and out of the Constitution.  Other laws have been written in by virtue of omission; slavery was Constitutionally deemed legal by virtue of it not being declared illegal.  The amendments to the Constitution are designed to strengthen the idea of freedom and liberty and democracy.  Yet, this is not always the case.  The amendment commonly known as Prohibition, for instance, went directly against the idea and purpose of the Constitution.  The idea of the Constitution is to protect the democracy and extend freedom; what the Prohibition amendment attempted to do was the exact opposite.  It was an attempt to restrict freedom and, in some ways, it was even an attempt to restrict democracy by writing a statute into the Constitution.  The Constitution is not designed to be a list of laws; statutes are not its purpose.  The wrong-headedness of this idea is revealed in the Amendment to repeal that statute masquerading as a Constitutional law of the land. 

Unfortunately, that lesson has not been learned.  In recent years an outspoken minority has worked hard to interject another statute into the foundation of American law.  These people wish to write a patently discriminatory statute into a document that exist only to achieve the opposite of these aims. An amendment barring gay marriage does not belong in the Constitution; it doesn’t even belong in a county book of statutes.  Why is there still the distinct possibility that it could very well wind up in the Constitution?  Because the Constitution can be amended at the whim of lawmakers.  Admittedly, the process requires that that whim be shared by a large majority of people, but 1930s Germany is proof enough that a large majority of people can be bent to the whims of a small minority even without a gun being pointed in their face. 

Of course, one need not step into a time machine and visit 1930s Germany to see how easily the whims of a few can result in the passage of legislation detrimental to the very basis of the democratic principles contained within the Constitution.  In America itself legislation was passed that prohibited dissenting voices from speaking out.  This legislation led to people being arrested and detained without being charged and all in the name of protecting the country from foreign invaders and those within who would be supportive of these foreign aims.  The name of this legislation?  No, not the Patriot Act, though one may certainly be forgiven for jumping to that conclusion.  The Alien and Sedition Act was the first attempt to draft security measures based on fear, but clearly not the last.  This act made it illegal to speak out against the government, which is considerably strange considering the government existed only on account of speaking out against a previous government. Even more disturbing, of course, is that this legislation seemed to directly contradict the very first amendment to the constitutional document of law.  The Alien and Sedition Act was legislated—supposedly, at any rate—as a response to a threat of war with France.  Fear of how the US could respond to an attack from an overpowering opponent led to the drafting of legislation that may have been intended—may have—to keep the government from weakening under pressure from abroad. 

Fear is probably without question the most primal of all human emotions.  People may kill for love, but they will kill whom they love if in fear of their own life.  People facing a threat to their security don’t respond intellectually; they respond with a knee-jerk reaction meant provide a means of self-preservation.  As a result, fear is never a good time to pass a law.  Following the September 11, 2001 terrorist attacks the nation united as it has not since in the conviction that steps needed to be take to protect American soil from invasion.  This unity was balancing on a shaky foundation built by fear and if ever there was a time in American history not to pass any new legislation it was the months following the attacks. 

Alas, that was not the case.  Americans across the board watched the devastation wrought by planes hijacked by terrorist who proudly proclaim their intentions to destroy the country and responded with the kneejerk reaction that politicians looking to expand their power so rarely get and so desperately hope for.  The relaxation of intellectual engagement combined with the political realization that speaking out against the President at that time was bound to be construed as unpatriotic to create one of the most dangerous moments in time in American history.  Ironically, the danger was not from Islamic terrorists half a world away, but rather from America’s own democratically elected—and undemocratically unelected—leaders.  Fear caused Americans to respond with a nearly unanimous yes when asked if they wanted laws put in place to protect them from a tragedy like this ever occurring again. 

The result of the worst piece of legislation designed out of fear since the Alien and Sedition Act.  The ill-named Patriot Act permits the federal government to expand the limits of both telephone and internet surveillance, to loosen the laws against wiretapping citizens, to allow a person’s library borrowings and video rentals to be requested without their permission, to make it easier for the feds to obtain previously confidential financial and medical records.  One of the most egregious elements surrounding this passage is that it was done with almost no public hearings and with an absolute minimum of open debate among the public at large.  In fact, the Patriot Act was passed with only one dissenting vote in the Senate, that of Sen. Russell Feingold.   All Feingold asked for was that the Patriot Act be debated openly so that his own fears of the law being used against suspects with no ties to terrorist fears wouldn’t have their civil liberties restricted in the name of enforcing security.  For his part in standing up to the democratic principles contained with the real Patriot Act—otherwise known as the Constitution—Feingold received death threats. 

The Patriot Act was designed to protect Americans from terrorist threats from abroad but was quickly amended and strengthened by a definition for a new crime now known as “domestic terrorism.”   Alexander Hamilton would consider the wording of the US Constitution to be ridiculously specific in comparison to the wording of the definition of “domestic terrorism”  which is “any action that endangers human life or is a violation of any federal or state law”. Sen. Russell Feingold’s fears appear to have been grounded in cemented reality.  This intentionally vague wording has the potential for describing…well…pretty much any crime that is, was and ever will be committed as terrorism.    

There seems to be a genetic propensity among humans to want to hand over absolute power to a single individual during times of stress.  America has experienced far greater levels of stress than was experienced on September 11, 2001.  Pres. Abraham Lincoln has faced accusations of overstepping his Constitutional powers during the Civil War.  Pres. Franklin Delano Roosevelt likewise faces criticism for extending his Constitutional powers.  The evidence appears quite solid that both those Presidents did take it upon themselves to imbue their office with powers not outlined in the Constitution, but never for a moment was there any real fear that either would extend those powers to such a state that the democracy would crumble.  Bruce Ackerman writes that “defenders of freedom must consider a more hard-headed doctrine—one that allows short-term emergency measures but draws the line against permanent restrictions” as a response to security emergencies.  The United States democracy and the civil liberties inherent in its foundational document survived a four year long civil war and an almost four year-long attack by fascist armies intent on global domination without resorting to emergency measure that would co-opt those ideals, yet Ackerman and others apparently believe that less than two dozen hijackers warrant undoing the Constitutional protection of both liberties and securities. 

There is no need for an emergency Constitution.  That document has protected American civil liberties for over two-hundred years, and has protected America from being co-opted by ambitious men who in many other countries would have had no trouble setting themselves up as potentates.  The real strength of the United Constitutions is that while it has been amended and its amendments have been amended it has never had to be rewritten.  The powers of the three branches of the government are among the least vague elements of the Constitution.  It doesn’t take tanks rolling through the streets and a military protecting the person who is in charge to turn a democracy into something far worse; all it takes is the willingness to lose faith in the foundation of its laws. Once a country’s citizens begin to suspect that their laws aren’t strong enough to protect them, history shows they are all too willing to rewrite those laws.  And each rewrite becomes a little bit easier to approve.  Until, finally, there is no law left to rewrite and what is left isn’t the law itself, but the gatekeepers of those laws.  If Americans decide that their Constitution needs to be adapted to meet the specific needs of an emergency, the only question left will be what constitutes an emergency, and it doesn’t take a genius to figure out who is going to make that determination.