THE BLOG
04/18/2011 06:09 pm ET Updated Jun 18, 2011

Update the Constitution

Does Arizona have the right to demand the president's birth certificate as a condition of putting him on the presidential ballot; or must Arizona accept Hawaii's word that the document we see online is the birth certificate? Could Congress, in 1954, insert the phrase "under God" into the Pledge of Allegiance? Are these actions constitutional?

These specific factual questions will not have their answers found in the Constitution or Bill of Rights, the name we give to the first ten amendments to the Constitution. If you look in these documents, you will see statements of principles covering these general topics; like "Full faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State" (Article IV, section 1 of the Constitution) and "Congress shall make no law respecting an establishment of religion" (1st Amendment). There are your answers to the two questions we started with above. Do these constitutional statements answer those questions indisputably for all people?

Now, a pop quiz: Can you define "cruel and unusual punishment" (8th Amendment) under all facts at all times, forever? The death penalty; is that cruel and unusual punishment? How about "tarring and feathering", which was common back in the old days? Or, can you define, in different factual situations, Congress' power to "regulate commerce among the several states" (Article I, section 8 of the Constitution)? Does that mean Congress can prohibit a woman from growing marijuana in her back yard, carrying it into her living room and smoking it? Is that "regulating commerce among the several states"?

While Tea Partiers have chanted the slogan "obey the Constitution" and tried to own it the way they try to own the Bible, there has been far too much self-congratulation and theater and far too little understanding of what the Constitution is really all about.

One key flaw in the debate over the Constitution is the attempt -- really, the demand -- by "original intent" adherents and their robotically programmed Tea Party puppets -- that the Constitution answer all questions, under all factual scenarios, for all times. Viewed as some sort of magic encyclopedia, these people claim all the answers are there -- we just have to look. For those who actually read the Constitution, it becomes clear the Constitution cannot be a magic document, nor was it ever intended to have all answers for all people for all time.

The Constitution requires interpretation -- that is why we have courts. Creating the Constitution itself required a series of compromises -- the entire concept of the Bill of Rights itself was the result of a compromise -- the Founders were politicians, just as we have politicians today. They represented different factions and interests (e.g., slave owners; bankers) and had to find common ground to accomplish their ultimate end -- the establishment of a federal government and a governing system between the states and national government known as federalism.

Indeed, much of the Constitution (leaving the Bill of Rights aside for a moment) was devoted to establishing a skeletal framework of the national government -- take a look at the Constitution -- it is the structural set of girders and beams set upon a foundation for a government. When it came to actually defining what the rules governing future behavior were to be, they papered over their differences, used vague words and terms, and left many battles for the future. What emerged, after creating the mechanics of a government, was a set of governing principles, with very few concrete factual specifics. There is your Bill of Rights.

Please go back and read the Constitution and Bill of Rights. They are not long; this is one big clue they were not intended to be an encyclopedic magical code of answers. Interpretations applied to the Constitution have varied wildly over the centuries we have been a nation. The Founders did not know from telegraphs; telephones; airplanes; automobiles and the Internet. They did not then have a nation where crossing state lines was so easy or injecting matters into interstate commerce was done with a mouse click. Interpretation and adaptation have kept the Constitution relevant for all these years -- it is a living, breathing document, with intentionally-designed space for adaptation. But the strains are evident. It is time to update the Constitution in some fundamental ways.

Does spending money on politics equal free speech, as the Supreme Court has decided in the Citizens United case? Can computer codes, without paper, count as "ballots"? Do Katherine Harris and five Supreme Court justices get to decide who occupies the White House? Should we now, after all our experience with Supreme Courts, leave judges on the bench for life, which has become 30 or more years?

While the Constitution continues to chug along as it has for all these years (subject to dispute and litigation, and hard fought arguments as to its application to specific factual scenarios, with courts making the ultimate answers) there are some problems so fundamental that a new set of amendments is needed. I do not argue for a new Constitutional Convention -- that would be a food fight of epic proportions -- but a refinement for a modern America.

First, we need to make clear that money does not equal speech and that corporations are not people entitled to use their money on political speech. Next, we need to get our elected officials off the cycle of fundraising and favor-giving that has destroyed our tax code, our budget and bred widespread cynicism among our populace. Finally, we need to put term limits on federal judges.

I propose that the Democratic Party, as a matter of its definitional character, embrace and adopt these three principles and promote three Constitutional Amendments to the people. One would place a ten-year term limit on all federal judges. One ten year term and out. Another would establish a system of public financing of all federal campaigns -- with a strict prohibition on taking anything of value from any person or entity -- and that all ballots be cast as paper and counted in the open. A third would establish that only natural persons have a right to speak on political issues and that artificial creations -- be they partnerships, limited liability companies, corporations or anything else that is not flesh and blood, does not.

Taken together, these fundamental reforms would help renew our democracy and ensure the foundations continue to work for the future. Every natural person could speak on politics -- but corporations would not be able to jump back and forth -- being corporations when it is advantageous (like not being arrested and jailed) but then being "people" when that is advantageous. Buying our own politicians -- with our tax dollars -- is far preferable to letting special interests buy our politicians. And, this is good politics too: By "branding" the Democratic Party as the party of clean elections and good government, we would have a platform to run on year in and year out -- until we have built enough public support to pass the amendments -- and then we would own the issue, just as we own Social Security and Medicare.

All it will take is some courage and leadership. Let's get busy.

www.normangoldman.com