To have anticipated the country's condition in the 1880's from the situation in the 1780's would have required something more than foresight. The Framers would have had to be seers.[1]-- Rexford Tugwell, The Compromising of the Constitution
The existence of the Empirical Constitution is irrefutable evidence that the Constitution as framed in 1787 is no longer relevant for modern times:
The Constitution . . . has, to put it plainly, become in many respects obsolete. The succeeding generations still living within its directives are confronted with conditions radically different from those known to the original framers. The arguments it emerged from are no longer relevant and its governance of the nation has become more mystical than real. . . .
Does anyone believe that if the Constitution in its entirety should be submitted to referendum now, and relieved somehow of its traditional sanctity, it would be ratified? If it would not, and if constitutional government is desirable, then it follows that an acceptable one ought to be devised. This simple logic seems irrefutable; actually it is universally evaded. It is even widely regarded as reprehensible to make such a suggestion. [2]
But reason must prevail. Brennan (1982), quoting Chief Justice Warren Burger, observed that
"[W]e should examine the changes which have occurred over two centuries and ask ourselves whether they are faithful to the spirit and the letter of the Constitution, or whether with some, we have gone off on the wrong tracks.'Justice Burger points out that . . . [c]ongressional staffs have expanded to the size of George Washington's army. . . . Constituent services, committee work, and management of administrative staff have all grown in importance, dwarfing the parliamentary function of congressmen and senators. At the same time, because of the growth of our population from three million to nearly a quarter billion, each congressman and senator must represent vastly more citizens than originally intended. The corollary of that proposition, of course, is that each citizen is vastly more remote from the national legislature than Madison and Hamilton assumed would be the case. The volume of congressional business is so great that members are physically unable to read all the bills they are expected to vote upon. [3]
Brennan pointed out further inadequacies, such as the obsolescence of the $20 guidepost in the civil jury trial provision:
Jury trials are assured in suits at common law, but there are no suits at common law within the Federal Judicial System anymore. Jury trials are assured where the value in controversy exceeds $20.00. The jurisdictional minimum in diversity cases in Federal courts is now $10,000. Modern state constitutions have substantially altered the common law concept of civil jury trials. In England, jury trial in civil cases has all but disappeared. With civil litigation mounting, dockets burgeoning, delay piling upon exasperating delay, modern court systems seek new methods of dispute resolution which can more adequately serve the needs of 20th and 21st century society. . . . [4]
One of the more dangerous obsolescences is the inability of the Constitution to prevent the existence of the military-industrial complex President Eisenhower had warned against in his Farewell Address. The Framers feared standing armies, and for good reason:
Whatever the two year limit on army appropriations may be understood to mean in Washington, D.C. in 1982, it does not seem to have any restraining force with respect either to appropriations or the raising and supporting of armies. Certainly the Pentagon would be stunned to hear that congressional expenditures for land forces were circumscribed by a term limitation which did not apply to naval forces.
With the technological advancements which have changed the entire concept of national defense, the necessity of long range planning, and the commitment of resources over substantial periods of time are commonly accepted. But the argument from modern necessity does not change the plain language of the Constitution. The most ingenious semantic machinations cannot change the meaning of that restrictive phrase. . . .
What a far cry from the focus and concern of the framers are the words of 10 U.S.C.A 2301 et seq. describing the process of military procurement. "The head of an agency may enter into contracts for periods of not more than five years. . . .' Detailed citation should not be necessary to support the proposition that American military expenditures are substantial; that vast standing armies are maintained; that appropriations are made for the purpose of raising and supporting armies for longer periods than two years. . . .
The point need not be belabored further. The founders had a real distrust of standing armies. As Madison said: "as armies in time of peace are allowed on all hands to be an evil, it is well to discountenance them by the Constitution.' Since the second world war, the United States has continuously maintained a military establishment consisting of more than three million persons, of which, in 1978, 757,000 were members of the United States army on active duty. The air force accounted for an additional 567,000. It is clear that forces of this magnitude cannot be maintained, equipped, and supplied with short term appropriations.
Obviously, the language which Madison and his colleagues inserted in the Constitution is no longer operating. It is simply being ignored by the government in Washington. Doubtless, no one now would argue with much enthusiasm for the enforcement of the two year limitation. But a limitation ignored is no limitation at all. We permit our only constitutional protection against standing armies to be ignored. At the same time, we fret about an international arms race that imposes enormous economic burdens on the American people. The founding fathers thought the matter a proper subject for constitutional legislation. If we do not think ourselves competent to such a task at this time in history, we ought to say so in clear terms. If we think the two year appropriation limit too stringent, we ought to remove it, before some elected officials come along and endanger our security by the innocent act of obeying the Constitution. [5]
Brennan then cited some of the many areas requiring revision, and called for action.
Jury trials; standing armies; disqualifications for office; these are but a few areas sorely in need of constitutional attention. Much of our basic charter has grown pathetically out of date because we have focused upon a few popular phrases which have been seen as flexible. . . .
The Constitution contains many narrow, rigid, outdated terms. It omits many things which could easily be included, if the document is to serve our generation and those to come as aptly as it was conceived to serve those who went before us. There is no call to be shy or timid. Surely after 200 years, we are not premature to consider amendments. If anything, we may be too late. [6]
Brennan's final question is a very important one -- are we too late?
END PART 18: TO BE CONTINUED
FOOTNOTES[1] The Compromising of the Constitution, p. 153.
[2] The Compromising of the Constitution, pp. 6-7.
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