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Taking Another Look At The Constitutional Blueprint
May/June 1987 | Volume 38, Issue 4
The argument is that if law firms advertise, clients will get better, cheaper services. The argument is vapid. There is, to begin with, the general truth (which many who favor the change would themselves assert in other fields) that advertising is often misleading and sometimes downright dishonest. More specifically, though advertising can be informative as to some services and products, it is utterly unsuitable here. The nature of nonrudimentary legal work is such that its quality cannot be appraised except on the basis of intense association. It is a wise client, and a rare one, who knows whether a lawyer is giving him his money’s worth.
As to the political process, ten years ago the Supreme Court held that parts of an Act of Congress that put limits on using money in federal elections violated the First Amendment. The Court thus took the vulgar expression of a deplorable fact—“money talks”—and elevated it to a constitutional principle. This required a contortionist’s skill on the stage of intellect: spending money becomes a form of speech. Moreover, we can hardly suppose that spending money to influence the outcome of elections is what the framers, striving toward a democratic polity, were intent on guaranteeing. From a patriotic point of view, this decision was the worst judicial display since the Court’s rulings that maximum-hour-minimumwage standards violated a newfound constitutional right to profits.
The First Amendment, treated for about a century and a half as a fragile wicker basket that could take no heavy burden, has in the last decade been treated as a garbage van. This is educational and saddening. Educational, because it illustrates the pendulum swings of history, and the dangers of doctrine, and the tendency of doctrinaires to fight past wars. Saddening, because it prepares the way for reaction and puts real freedom in peril.
The law is never altogether self-enforcing. It requires a degree of respect from those it seeks to govern. Videlicet Prohibition. Now that the Court has told us that topless dancing and the purchase of public office are shielded forms of speech, we had better be concerned that the pendulum may start to swing the other way and the fundamental freedoms the First Amendment was meant to secure may be, in time, severely damaged.
-Charles Rembar Attorney. Author of The Law of the Land and The End of Obscenity.
The part of our Constitution that most deserves immortality is undeniably Article V. Admittedly one of the least-known and most cumbersome clauses in the document, it involves the process by which Americans can alter or amend their Constitution itself.
The original document, as we know, was written by an elected convention. That the amending of it was relatively easy was proved by the passage of the first ten amendments, the so-called Bill of Rights. Through the years, others have been added: the Fourteenth; the Eighteenth, later repealed; and the Twenty-second, limiting the terms of Presidents. There has been only one Constitution, however, in two hundred years. Now we are only a state or two from a new convention, possibly a real and present danger to the Republic as we know it.
In the distant past, a convention was a solemn forum, the ultimate source of the sovereignty of the American people. Even when the Southern states seceded, they did so not through legislatures but by elected conventions. But through the twentieth century, local and national conventions have been more circuses than deliberative bodies. Massachusetts, for instance, has a so-called constitutional convention every year or so, bearing no more resemblance to the original concept than Jimmy Carter’s “Town Meetings” resembled the New England forums where the aim is only to reach decisions on the problems of town government.
The dangers derive from ignorance, not lack of patriotism. Certainly we have patriots today. Through this century and the last, we have had statesmen who have outshone Presidents under whom they have served: men like Borah of Idaho, Norris of Nebraska, LaFollette of Wisconsin, and the Lodges of Massachusetts; senators like Taft of Ohio, Fulbright of Arkansas, and Russell of Georgia; justices like Marshall, Holmes, Brandeis, Frankfurter, and Warren. But we have no figures such as these who would be sent to a new convention.
The call now is for “a scientific constitution for a scientific age.” Why? Granted, there are constitutional lawyers today, but they are practicing before the Supreme Court. There are great historians and scholars, but they are teaching in the universities. Prominent historians have even charged that our last three Presidents have so little understood the inherent powers of their office under the Constitution that they have spent their first two years “reinventing the wheel.” Richard Nixon is acknowledged to have understood the powers of his office perfectly, but would he be sent to a Constitutional Convention?
Admittedly, two hundred years is a long time between conventions, but the Constitution—as Calhoun recognized—is essentially a document to protect minorities. “Majorities can take care of themselves.” Majority rule is not always the right rule. Democratic government can be run by referenda or public opinion polls. These do not necessarily make for good government.