No Better Time. Let’s Rewrite The Constitution.

No Better Time. Let’s Rewrite The Constitution.

By Pete Haug

I mean it. In the wake of conflicting judicial decisions over two and a third centuries, it’s time to revisit the founding document of the most successful extant democratic republic in history – and make both even better. We need to step back, re-evaluate who we are as a people, and enshrine that vision in a dynamic, living, equitable Constitution that accommodates realities of a changing world.

Compared with most other countries, we have an excellent legal system, but it’s far from perfect. The closely related, but not interchangeable, legal concepts of justice and equity lie at the heart of the problem. 

The word “abortion” doesn’t appear in the Constitution nor in any amendments. When that founding document was written, I doubt “abortion” was ever mentioned in polite society. Today it’s everywhere. After nearly two centuries of abortion as a crime, Roe v. Wade recognized reality: Women’s reasons for aborting fetuses often, but not always, are based on legitimate concerns that no court should interfere with. Such decisions are personal and private.  

Roe v. Wade recognized that. Has the Constitution changed, such that a half-century-old Supreme Court decision is no longer valid? The Court’s makeup has changed; our fundamental law has not. Yet legal precedents and interpretations on which Roe v. Wade was based are no longer valid.

When does “personhood” begin?

The biology is clear: “The arguments that challenge fertilization as the event at which human personhood begins do not sufficiently compel opinion due to several semantic discrepancies. … In light of the biological evidence and philosophical arguments discussed herein, it is most reasonable to support the notion that personhood status is present at the point of human fertilization.” 

Most religions consider another entity, one impossible to verify: the soul. Physical bodies disintegrate after death, but souls live on, responsible for their actions during earthly life. After death, these essences of human existence face God’s justice – and mercy – concepts often represented as Hell and Heaven.

If pregnancy is terminated – whether spontaneously (miscarriage), via trauma (medical or other emergencies), or deliberately (intentional abortion) – the soul doesn’t die. That soul is protected, like a child who dies, through God’s grace. It never has the opportunity to live and make choices that determine how God judges it. Believing this makes it easier to accept another’s abortion, a decision rarely affecting us. God is the ultimate judge, not a neighbor or court. 

Circumstances impinge on every woman’s pregnancy. How can legislators, bureaucrats, and courts, mostly male, arrogate authority to judge a woman’s quintessential biological role to carry her child, or not? How can they override medical judgment of physicians? 

Right now, such authority stems from our flawed Constitution. Its 18^th Amendment, lobbied by vocal temperance enthusiasts, spawned “entire illegal economies – bootlegging, speakeasies, and distilling operations” until repealed 14 years later. Its organized criminal malignancies still linger. 

Morality can’t be legislated. Prior to Roe v. Wade, reports of illegal abortions and associated atrocities appeared sporadically in media. Desperate women will continue having abortions. Are we returning to the era of back-alley bloodshed?

A living Constitution

Conservatism wants to “conserve” traditions; liberalism wants to “liberalize” outmoded traditions. Disagreements between viewpoints arise from two issues: Which traditions need updating and in what way? Constitutional amendments provide some flexibility, but time renders them obsolete and further change becomes necessary. Think 18^th Amendment.

“A living Constitution is one that evolves, changes over time, and adapts to new circumstances, without being formally amended,” wrote one scholar. “An unchanging Constitution would fit our society very badly.”

 Another scholar suggests “an official constitutional canon,” a body of texts that conventional legal theory places at the very center of legal culture’s “self-understanding.”

I disagree. Such a “canon” has led us to the contradictory confusions we face today. Rather, let’s begin with a revamped, modernized foundational justice system that, at its heart, is first equitable. Such a system would consider context when an offence is committed. Rape victims, for example, have no control over whether they become pregnant. Under a strict no-abortion law, justice demands a woman carry and bear her rapist’s child. Equity, a “higher justice,” would allow the victim to choose.

Rewriting the Constitution requires individuals of the highest caliber, impartial and honest. It requires freedom from prejudice. It requires commitment to a judicial system founded in equity to ensure all people governed by that Constitution will be judged and treated fairly. 

Such framing requires placing principle above partisanship and ego. It demands free, open, and even courteous consultation among the deliberators. Common good for all United States inhabitants must be the goal. Rights of citizens will differ from those of newcomers, but immigrants must be treated equitably. 

Let’s begin soon: “Ladies and gentlemen, official framers of our new, living Constitution, please begin your consultations.”