IMMEDIATE RELEASE 8 July 2022
Today’s Events in Historical Perspective
America’s Longest-Running Column Founded 1932
Can America save itself from itself?
By Douglas Cohn and Eleanor Clift
WASHINGTON — The United States Constitution needs a rewrite and not the way it’s being done by the Supreme Court. America could use a Constitutional Convention to update the nearly 250-year-old document and make it relevant to modern life, an assumption the Founding Fathers acknowledged. But it will happen because we are too divided a country to come together and take on such a monumental task.
We could go through the amendment process to make changes, but that’s near impossible given the requirement that three-fourths of the states must ratify any change along with two-thirds of Congress.
The third route to any meaningful change is through the Supreme Court and what is often disparaged as “packing the Court.” FDR tried it when conservative justices ruled against aspects of his New Deal. The ploy backfired, leaving a taint on the process that still lingers even though there is ample reason to expand the number of Supreme Court justices from 9 to 13, which would equal the number of judicial circuits
Other Western democracies have age limits and term limits on judges, and we may come to that in the future, but not now, given the gridlock in Congress, raising the question of whether America can save itself from itself.
Two amendments are especially in question – the First and Second, which respectively guarantee the right of free speech and the right of a well-regulated militia to bear arms.
Let’s take the Second first. The latest string of mass shootings has put the proliferation of high-powered weapons into the headlines. Congress just passed and President Biden signed into law a modest package of gun safety regulations, the first restraint on guns imposed by the federal government in 30 years.
Here we should look to another nation’s successful experiment. In Japan, gun ownership and use are highly regulated and gun-related deaths are nearly nonexistent, which is why the assassination of former Prime Minister Shinzo Abe is looked upon as incomprehensible by a stunned Japanese public. Japan has proven that stiff gun regulations work.
Meanwhile, our Supreme Court expanded the right to “constitutional carry” without a permit, and no one dares to restrict teenagers from acquiring high-powered weapons.
The justices say they are honoring the Second Amendment, but what they are doing is interpreting it to confer far broader rights to acquire and carry guns than the Founders ever remotely intended. The Founders referred to a “well-regulated militia,” a phrase the late conservative Justice Antonin Scalia ignored when he wrote the opinion declaring gun ownership an individual right.
The First Amendment, revered as an expression of American democracy, becomes problematic in a world of social media. Shooters like the young man who shot up a July Fourth parade from a rooftop find a community of would-be assassins online where they trade stories of mass killings in what one analyst called a “cult of death.”
Monitoring the young men who populate the dark web bumps into the First Amendment since not everyone who fantasizes about killing human beings will commit the act, so these online groups are entitled to privacy and free expression until they are not, and finding that line is a challenge.
Finally, there is the Independent State Legislature theory (ISL), a bogus concept of narrow semantics that claims Articles I and II of the Constitution only refer to “legislatures” where elections are addressed. Here again, the Supreme Court is stepping in where patriotic angels would dare not tread. They have agreed to hear a North Carolina case that challenges the relationship between state legislatures and state courts, arguing that legislatures represent the voters and should have the last say on the conduct of elections and not the courts. Of course, they neglect to admit that they are gaining control of state legislatures, not through the people's will but by lumping the majority of likely Democratic voters into just a few gerrymandered districts. True, Democrats have also been guilty of this, but not to the same degree and not with a compliant Supreme Court in its pocket.
The ISL theory sounds academic; it is anything but. It is a sinister undemocratic, unpatriotic, anti-American power grab that would allow Republicans the ability to manipulate electors in swing states and change the outcome, if necessary, of the 2024 presidential election.
Republicans are doing all these things in plain sight. Guns will continue to create unimaginable agony. They will continue to take advantage of the First Amendment to spew propaganda through the likes of Fox News. And suppose through gerrymandering they gain control of enough state legislatures and the Supreme Court buys into ISL theory. In that case, the judicially thwarted fake electors of 2020 may become the actual electors of 2024 and deliver a backdoor coup of the White House that undermines the Constitution and brings the American experiment to an end.
See Eleanor Clift’s latest book Selecting a President, and Douglas Cohn’s latest books The President’s First Year: The Only School for Presidents Is the Presidency and World War 4: Nine Scenarios (endorsed by seven flag officers).
© 2022 U.S. News Syndicate, Inc.
Distributed by U.S. News Syndicate, Inc.
END WASHINGTON MERRY-GO-ROUND
IMMEDIATE RELEASE 8 July 2022