Wednesday, March 1, 2017
The Myth of the Cure-All Constitution
The U.S. Constitution, as I am sure most are aware, says nothing about secession. Later proponents of secession would say that since the states joined the union voluntarily, it was inherent that they could leave voluntarily. President Lincoln and a million Yankee bayonets disagreed. However, most are probably not aware that the Confederate constitution, likewise, said nothing about secession. Again, quite purposely in their time, they believed that to state that secession was legal was unnecessary because the very nature of the Confederacy and how it was formed meant that the legality of secession was a given. Not only does a constitution only have worth if it means what it says and what it says is adhered to, sometimes it is just as important in what it does not say in terms of showing us the limitations of constitutional government. Some of the same men who were responsible for the U.S. Constitution and the First Amendment freedom of speech were also responsible for the 1798 Sedition Act which made it a crime to criticize the government.
Consider the arguments over whether it is constitutional for President Trump to suspend, temporarily, travel and immigration from seven particular Muslim-majority countries. The constitution actually says nothing about who should or should not be admitted to the territory of the United States, however, the same people who enacted it also passed the first immigration law in American history, the Naturalization Act of 1790, restricted naturalization to, “free White persons of good character”. It is, I think, therefore safe to say that none of the “Founding Fathers” of America ever imagined that one day their successors would be arguing for Arab or African Muslims to have an inherent right to immigrate to the United States and become citizens. Along with the aforementioned Sedition Act, in 1798 Congress also passed the Alien Friends Act and the Alien Enemy Act which allowed for the imprisonment and deportation of non-citizens which the government deemed hostile to the United States. At the time, this was aimed at French revolutionaries but it demonstrates quite clearly that the men who wrote the U.S. Constitution did not think everyone or anyone in the world was entitled to come to America and never be deported.
The Kingdom of Sweden is much older than the United States but, it may surprise some, is constitutionally speaking extremely younger. The U.S. Constitution came into effect in 1789 whereas the Swedish constitution consists of four “Fundamental Laws”, the oldest of which dates only to 1810 (the Act of Succession concerning the monarchy) and the other three being enacted in only the last century, 1949, 1974 and 1991! Not a few have voiced the opinion that, because changes in Britain have been so rapid over the years, that the United States today is actually governed more like the British in the time of King George III than the modern United Kingdom is. In the time of King George III, but only just, the law still meant what it said, whereas today everyone in British law or politics knows that what the law says and how things actually work are two very different things. So, yes, technically the Queen must give Royal Assent to a bill in order for it to become law and should the Queen refuse this would veto such a bill. However, everyone knows that Royal Assent is today taken for granted, it is just assumed the Queen assents to everything passed by Parliament and no monarch has vetoed a bill since Queen Anne did so in 1708 concerning a bill to rearm the Scottish militia.
I don’t care how great your constitution is, I don’t care how enlightened and liberal you may be, the history of human experience shows that even the most liberal states will, at the time of the greatest stress when their values would be most needed, sacrifice their lofty ideals and resort to brute force and the style of absolutism. Once the progressive Democrat President Wilson took the United States into World War I a number of characters, generally socialists or the occasional anarchist such as a lesbian doctor who was for birth control and abortion before both were legal, were arrested for opposing the war against the Imperial Germany. Another progressive Democrat, Franklin Roosevelt, had U.S. citizens of German, Italian or Japanese ancestry arrested with no “due process” during World War II whether they had spoken out against the war or not. More recently the also very progressive liberal Democrat President Obama was pleased to give U.S. citizenship and the rights and privileges included therein to Muslim immigrants but was also just as pleased to drop a Hellfire missile on them regardless of those rights and privileges. One can agree or disagree with any of these actions, think they were justified or unjustified but one would be hard pressed to say any were strictly constitutional.