Putting the Forefathers on a pedestal is commonplace in America. It is almost obligatory for politicians, public figures, and the media to sing their praises as the most genius bunch that ever walked the earth. The educational system has also systematically indoctrinated successive generations with glorious stories about them in flowery language.
Much of such glorification is well-deserved and one must indeed contextualize what they wrote—the American Constitution—as the vision for an ideal system of government that is fair, just, democratic and has a lot of checks and balances to prevent any perceived abuse or injustice. Indeed, there are no parallels to this type of thinking since the-Greek Democracy experiment a couple of thousand years ago. It was idealistic and nothing short of genius. They created a system of governance that is far superior to the Monarchy, Anarchy, and Oligarchy that brutally ruled the world before that.
Indeed, we have the Forefathers to thank for giving us the vision and the blueprint to create the type of democratic world. Because of them, we have a peaceful transfer of power through elections (and without the usual bloodshed associated with such transitions) and where there is the rule of law, not the rule of the jungle.
The American Constitution has served as the inspiration for aspiring democracies all over the world. Even Dr. Ambedkar, an architect of the Constitution for India (the largest democracy in the world), spent two years at Harvard to study and draw inspiration from the American Constitution before he framed the Constitution for India. People all over the world have admired the American Constitution and the freedoms enshrined therein.
Fast forward 300 years to the Age of Trumpism that culminated in the American conservative movement for the past few decades. The hairline fractures and imperfections in the American Constitution that stayed so well-hidden from public scrutiny are now out in the open for everyone to see. That gives pause to the crescendo of the Forefathers’ praises. So, what exactly are we talking about that is flawed, irrelevant or incongruent?
One must do some retrospective review of the Constitution, no matter how sacred, to make sure it actually remains a 'living document' and does not degenerate into a fossilized and obsolete state like most religious edicts and texts. Let us examine the very foundation of the American Constitution- 'The 3 co-equal branches of government—Executive, Legislative and Judicial'. That translates into the Presidency, The House and Senate, and the Federal Court system, culminating in the Supreme Court as the final interpreter of the intent of the Forefathers or the Framers of the Constitution. As is well known, the Founders debated and thought of various 'what if' scenarios to create a 'system of checks and balances' where one branch of the Government may not usurp the powers of the other two, and to create a balance of power.
Co-Equal Branches of the Government?
Crafty politicians today have found a little flaw in the Constitution to turn this 300-year-old system upside down. The flaw is that the President appoints the Justices on the Supreme Court, the final arbiter of the laws and is then approved by the Senate. How is that 'equal' when the other two branches appoint the third? Judiciary is then clearly subservient to their masters and political mentors who appointed or selected them. In fact, cunning potential Justices even 'design' their resumes by leaning conservative or liberal to get the ultimate job—a lifetime appointment on the Supreme Court.
All of this flies in the face of the original intent of an independent and co-equal branch of the Government. Trump openly refers to his appointed Supreme Court judges as 'my judges', knowing fully well that they are there solely because of his power and to do his bidding. The President can thus 'choose' judges that are ideologically congruent and who he feels will be totally compliant with his agenda. The principle of 'independent and co-equal' judiciary is thus flawed in its design and defeats the intent of the Forefathers.
The Legislative Branch
The same goes for the Legislative Branch. All politicians are beholden to their political and economic masters, and a strong leader can easily influence the governing party to elect subservient and compliant cronies for those positions and derail or depose anyone who doesn’t fall in line. The current 'Dear Leader' culture under Trump is a great example of this phenomenon. Even his former critics like Rubio, Graham, and Cruz are competing with each other to 'kiss the ring', knowing that Trump can get rid of them at the simple wave of his hands. That certainly proves that nothing is equal and in fact, the Presidency and the Executive Branch have far more power than the other two combined. Even during the recent impeachment hearings, Trump and his administration simply ignored or defied the Legislative Branch subpoenas and nothing could be done about it. The Legislative Branch was totally helpless in their so-called equal function of 'oversight' of the Executive Branch.
The Presidency or Monarchy in Disguise?
It is clear then, that the Presidency has far more powers and the provisions and the systems for the 'co-equal' branches of government is flawed. That should tarnish the halo around the Forefathers and open people’s eyes to the fact that they were not faultless and certainly created a flawed system. Trump can conduct personal business for profit and be the President at the same time. He can appoint family members to crucial positions just as a king would and there is no requirement of competency when appointing key senior administrative and legislative officials. The Attorney General is not an independent official, but merely an order-taker to serve the President’s interests.
As it stands, the Presidency has just about the same powers as that of a Monarch, which Trump has proved that time and again!
Voting Rights and the Second Amendment
Well, what about these Amendments that had to be put in later to correct the inherent injustices such as the lack of voting rights for the women and minorities? We can at least chalk it up to the then-existing social and cultural factors such as the relegated status of women and the prevalent system of slavery. Then again, weren’t these supposed to be the visionary and idealistic people inspired by noble principles like social equity and justice, etc.?
How about the much-discussed Second Amendment—the Right to Bear Arms? The context and technology 300 years ago were so different that the Framers of Constitution couldn’t envision the power of technology, ideology, and human frailties like hate, racism, fanaticism, etc. They could not foresee that allowing individuals to bear arms without proper restrictions could be hazardous to society. Today, technology has empowered individuals to possess more firepower than the State and it’s the State or masses that needed protection from a crazy or evil individual with mass firepower or destructive technology.
Strict Constructionist Agenda
Strict Constructionists who insist on taking the written constitution 'as is', without any contextual interpretation or application, actually take pride in doing so and are in fact, making sure that the Constitution becomes outdated, irrelevant and totally an instrument in the hands of ultra-conservative and ultra-religious right-wing leaders. They shrewdly and systematically appoint judges that strictly adhere to such a literal application of the Constitution. The Federalist Society has made a science out of seeking out such potential judges and planting them on Appellate and Federal Benches for an eventual appointment to the Supreme Court. The fact that the Constitution is subject to such clever manipulation itself points to the lack of foresight of the Framers.
One can go on and on, pointing dozens of such shortcomings or provisions enshrined by the Framers of the Constitution that are now very difficult to change. In a divided society that has hardened battle lines along cultural, ideological, and racial lines, constitutional amendments are a thing of the past and we are relegated to living with outdated and irrelevant concepts like the Second Amendment.
Failure to see this coming and not providing constitutional safeguards for that is their biggest shortcoming, despite good intentions. The Framers would admit as much if they were to see it today.
I wish the Forefathers had the foresight!
- Sunil Deshmukh
(Author is a U.S.A. based philanthropist and Corporate leader of Wall Street. He is the Originator of prestigious 'Maharashtra Foundation Awards for Literature and Social work.' His E-mail id is firstname.lastname@example.org)