The Coming Constitutional Debate: "Proponents of a '21St Century Constitution' or 'Living Constitution' Aim to Transform Our Nation's Supreme Law beyond Recognition-And with a Minimum of Public Attention and Debate."

By Markman, Stephen | USA TODAY, July 2010 | Go to article overview

The Coming Constitutional Debate: "Proponents of a '21St Century Constitution' or 'Living Constitution' Aim to Transform Our Nation's Supreme Law beyond Recognition-And with a Minimum of Public Attention and Debate."


Markman, Stephen, USA TODAY


AS ASSISTANT ATTORNEY General under Pres. Ronald Reagan, I prepared a report for Attorney General Edwin Meese entitled The Constitution in the Year 2000: Choices Ahead." It sought to identify a range of areas in which significant constitutional controversy could be expected over the next 20 years. As critical as I believe those controversies were, they pale in significance before the controversies that will arise over the next several decades. The resolution of these emerging controversies will determine whether the Constitution of 2030 bears any resemblance to the Constitution of 1787--the Framers' Constitution that has guided this nation for most of its first two centuries and rendered it the freest and most prosperous and creative nation in the history of the world.

Proponents of a "21st century constitution" or "living constitution" aim to transform our nation's supreme law beyond recognition--and with a minimum of public attention and debate. Indeed, if there is an overarching theme to what they wish to achieve, it is the diminishment of the democratic and representative processes of American government. It is the replacement of a system of republican government, in which the Constitution largely is focused upon the architecture of government in order to minimize the likelihood of abuse of power, with a system of judicial government, in which substantive policy outcomes increasingly are determined by Federal judges. Rather than merely defining broad roles of the game for tile Legislative and Executive branches of government, the new constitution would compel specific outcomes.

Yes, the forms of the Founders' Constitution would remain--a bicameral legislature, periodic elections. stale governments--but the important decisions increasingly would be undertaken by courts, especially Federal courts. It will be the California referendum process writ national, a process by which the decisions of millions of voters on matters such as racial quotas, social services funding, and immigration policy have been overturned routinely by single judges acting in the name of the Constitution--not the Framers' Constitution, but a "constitution for our times," a "living constitution," resembling, sadly, the constitutions of failed and despotic nations across the globe.

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This radical transformation of American political life will occur, if it succeeds, not through high-profile court decisions resolving grand disputes of war and peace, abortion, capital punishment, or the place of religion in public life, but more likely as the product of decisions resolving forgettable and mundane disputes--the kind buried deep in the pages of our daily newspapers, if at all. Let me provide a brief summary of six of the more popular theories of the advocates of the 21st century constitution. In particular, it is my hope here to inform ordinary citizens so that they will be better aware of the stakes. For while judges and attorneys may be its custodians, the Constitution is a document that is the heritage and responsibility of every American citizen.

Privileges or Immunities Clause, Since shortly alter the Civil War, the privileges or immunities clause of the 14th Amendment has been understood as protecting a relatively limited army of rights that are a function of American Federal citizenship, such as the right to be heard in courts of justice and the right to diplomatic protection. In defining the protections of the privileges or immunities clause in this manner, the Supreme Court, in the Slaughterhouse Cases (1873), rejected the argument that the clause also protects rights that are a function of state citizenship, asserting that this would lead to Federal courts serving as a "perpetual censor' of state and local governments. This decision has served as a bulwark of American federalism.

Although a considerable amount of Federal judicial authority has since been achieved over the states through interpretations of the due process clause of the 14th Amendment, many proponents of a 21st century constitution seek additional Federal oversight of state and local laws. …

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