I have endeavored to write up everything I personally think the Founders got wrong when they wrote up the Constitution and sent it to the states on September 17, 1787 (I am sorry James Madison; no, it was not perfect, but thank you for all the work you did at the Constitutional Convention anyways).

This will be a multiple part series; I started this by reading line by line through my pocket Constitution provided by the Federalist Society, combined it with my own knowledge of certain court cases, and ran with it from there. It will get confusing at times, jumping from the Commerce Clause to the Second Amendment to the Privileges and Immunities Clause, but such is the history of the Constitution. Every Supreme Court case I cite can be found for free online if you want to read more about a certain case. If you really want, suggest a case to me and I can analyze it in a separate post for you. So, enjoy the ride of everything I find wrong from the Second United States Constitution.

In re: Second Constitution of the United States

The Second Constitution of the United States (do not forget the Articles of Confederation, ratified in 1777), the one the world knows today, is widely considered one of the greatest constitutions ever written. For almost two and a half centuries, other nations have drawn the U.S. Constitution to craft their own constitutions, using separation of powers, a limited executive, a bicameral legislature (though not an American invention), a final arbiter of the law in the form of a supreme court, and limited powers of the government as a whole. American and French Revolution hero Marquis de Lafayette believed that the United States “had the most perfect Constitution in the world” but did not believe that the “French could handle diluted central powers”.

The U.S. Constitution is a ‘negative’ constitution, telling the government of the nation what it may not do through the limited powers in the constitution itself and the inherent rights found within the Bill of Rights.

The government cannot limit freedom of speech.

It cannot restrict the right to bear arms.

It may not deprive of liberty without due process of law, only tax and spend for the general welfare.

The negative U.S. constitution does not give rights, they come from God. The constitution limits the ability of the government to impede on those rights.

This negative aspect is compared to a ‘positive’ constitution which tells a government what it must do for its citizens. This includes medical care, housing, adequate food, joining a union, and pensions for the retired among a list of anything the mind can imagine. For example, South Africa has an extensive list of positive rights in their constitution. The South African constitution also has negative aspects such as the “right to be free from unlawful seizures”, but it is most notable for its positive attributes. President Barack Hussein Obama grumbled multiple times that there “are no positive rights in the U.S. Constitution” and that the constitution “only told him what he could not do”. Late Supreme Court Justice Ruth Bader Ginsburg once said that while the U.S. Constitution is a “hopeful document”, she wished ours was “more similar” to the South African constitution and “helped guide the government” on how society should be.

The founders undoubtedly had the right idea by not including such impropriety. Regardless, they would not have believed that the government had a duty to give citizens anything other than protection from foreign enemies and a pathway for receiving remedies for the transgressions of fellow citizens. The United States federal government has obviously grown well past this demarcation point. It has had its own federal bank, it has waged foreign war without the consent of Congress, forced the removal of Japanese Americans from the West Coast into internment camps in the interior, and openly spies on its own citizens to the applause of those same citizens.

The Federalists got their way in 1787 when the Constitution was ratified by New Hampshire, the ninth and last state needed to make this Constitution the new law of the United States. Federalists had argued that the enumerated rights within the constitution were limited enough to prevent an all-powerful federal government from dominating the states. The Anti-Federalists disagreed, arguing there was too much vague language in the constitution to limit a federal government, and that at minimum a list of rights inalienable rights was needed. As a result, the First Congress passed twelve amendments and the states ratified ten of them, what we refer to as today as the Bill of Rights, only four years after ratifying the original document in 1791 (the failed amendments would have prevented a cap from being placed on the size of the House of Representatives and the other limited Congress’s ability to increase their pay, the current 27th Amendment). The Eleventh Amendment would come only four years later in 1795 (sovereign immunity for states) and the Twelfth Amendment nine years later in 1804 (how Electoral College was to select vice president and the requirement that the president and vice president be from different states). Twelve amendments in only seventeen years is not an auspicious start.

So, now, without further ado, everything I believe the founders got wrong in the Constitution.

The Supreme Court

Created by the Constitution under Article III, almost every problem that can be identified within the Constitution begins with a ruling by the Supreme Court. Much of this critique of the original Constitution will be centered around Supreme Court decisions because the federal government has resigned itself, for the moment, to placating to the rulings of the nine justices.

The Supreme Court started causing problems from the very beginning. The Eleventh Amendment was a result of the Court ruling in Chisolm v. Georgia, 2 U.S. 419 (1793) that states did not have sovereign immunity and were therefore subject to diversity jurisdiction in federal court for suits brought by citizens of another state as set out in Article III, section 2. This was seen as such a misunderstanding of the common law doctrine giving states immunity that Congress passed the Eleventh Amendment within a year, and it was ratified by the required nine states by early 1795.

As I have previously discussed here on The Gadsden Press in my first piece In re: Judicial Supremacy, there is substantial debate whether the Supreme Court even has the power to review laws and actions of government and determine if they fit within the confines of the Constitution. The Supreme Court was given the “judicial powers” of all “cases and controversies” arising under the Constitution. It did not include the right to interpret laws under the lens of the Constitution. Instead, the court saw the vacuum created there and took it for itself.

As a refresher, in Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice Marshall wrote in his unanimous opinion that it was only logical that the Supreme Court was the ultimate arbiter in determining what was and what was not Constitutional, in a case where the court was ruling on the actions of James Madison as Secretary of State, who had almost single-handedly written the Constitution not even twenty years earlier. This singular decision created, without any clear authority in Article III, the concept of judicial supremacy and judicial review, which prompted President Andrew Jackson to quip in 1832 following the Cherokee Indian removal case Worcester v. Georgia, “John Marshall has made his decision; now let him enforce it.” It also caused President Abraham Lincoln to fear that the Supreme Court having absolute and final power to interpret the Constitution will “resign the government into the hands of that eminent tribunal” during his commentary on the Court following the landmark decision in Dred Scott v. Sanford. The Dred Scott decision required the passage of the Fourteenth Amendment, giving the Supreme Court two blemishes on its record for decisions that required that not just new laws be written, but entire Constitutional Amendments, and in the case of Dred Scott, accelerating the move into Civil War.

Thus concludes my opening piece. Agree or disagree? Let me know. Constitutional Law in the United States can be extremely complex. It is unsurprising to find people with polar opposite political views believing that judicial review does not exist in the Constitution. My Con Law professor agrees with me, and he clerked for late Chief Justice Rehnquist.