Constitutional Reform: a pressing necessity
After the 14th, 15th, 16th, 17th, 18th and 19th amendments the constitutional basis for federalism in the US has no internal consistency or logic despite the attempted safeguards of the 9th and 10th amendments. The concept of enumerated powers cannot function as planned in that context. The Law of Unintended Consequences doesn’t just impact environmental matters and it has clearly been in play more and more since the Civil War and especially during the past century.
In the case of the conflict between state law and federal law, the Supremacy Clause of the Constitution grants priority to the federal law but only if it is within the constitutional competence of the federal government (e.g., within one of the 18 enumerated powers). In the specific case of federal criminalization of any topic the concept is not complicated: conduct can be criminalized at the state level, the federal level or both, based on the constitutional legislative competence of the governmental entity involved. However, in the area of controlled substances the predicate for federal regulation is unclear. The Commerce Clause is used as is the theory that the repealed 18th amendment (prohibition) opened the door for federal regulation of health and morality issues but in both cases, regardless of what the Supreme Court has said, that position is not logically sustainable. The truth is that as in too many other cases, although well intentioned and in reaction to abdication of responsibility by the political branches and the states, the US the Supreme Court has evolved out of its judicial role into a political role as a de facto politburo with little attention paid to over-all constitutional consistency.
Analogizing our constitution to a computing structure, our operating system has been patched in an inconsistent fashion and no longer works in a predictable or efficient manner. In other political systems, notably the Indian common law inherited like ours from the English and in the Federal Republic of Germany, it has been recognized that constitutions require an internal consistency and that amendments which violate that requirement are not acceptable. That is a cogent observation we should take to heart, not by declaring the amendments void, they are far too important for the People we have become, but by admitting what the Founding Fathers knew, that our form of government, especially the Constitution, was an experiment that needed monitoring, evaluation and adjustment.
Constitutional reform is critical and the Supreme Court is not the place to effect it. Only a Constitutional Convention can really repair the inconsistencies and internal conflicts that careless albeit well-meaning but perhaps necessary meddling have occasioned. After 230 years, one is way past due.
© Guillermo Calvo Mahé; Manizales, 2012; all rights reserved