Re-writing the US Constitution

By Mel Copen

Sedona, AZ (July 13, 2011) – Back in the late 1700’s, when our nation was established, the Founding Fathers came up with a unique system of checks and balances. The government was structured in three parts – an executive branch, headed by the President; a legislative branch, with two Houses; and a judicial branch, headed by the Supreme Court. The concept was to divide the powers of government among the three.

Over the years, and particularly recently, polls show enormous citizen disenchantment with a clearly dysfunctional Congress. Similarly, the office of President has lost much of its respect. But one institution, for many years, still provided an anchor point for confidence – the Supreme Court. My sense is that this is now eroding so fast that it will soon hit the depths of the other two. The dramatic insertion into the politics during the Bush/Gore dispute in Florida was one such step downward. Recently, the ruling relating to California’s ban on sales of violent computer games to minors is another.

Article III of the Constitution defines the Judicial Branch. At no point does it mention anything about interpreting the Constitution. But in 1803, in the case of Marbury v. Madison, Chief Justice John Marshall took the position that the Supreme Court had the authority to determine the constitutionality of laws that came before the court. In a letter to the Court, Thomas Jefferson disagreed. He felt that giving that power to the Supreme Court would undermine the balance of powers which the framers of the Constitution intended. Marshall’s position won out and since then, the right of the Supreme Court to determine constitutional issues has been broadly accepted.

Article 5 of the Constitution provides specific procedures for changing the document, requiring that a Constitutional Convention must be called by either two thirds of both Houses of Congress or by the Legislatures of two thirds of the several States and that the approval of any proposed Amendments would require the ratification of the Legislatures or Conventions in three fourths of the States – a fairly high hurdle to surmount. Subsequent to the addition of the Bill of Rights, containing the first 10 Amendments, it has happened only 17 times.

Many things have changed since the Constitution was first written. Some of these are natural progressions – e.g. the growth from 13 States to 50. But some had to be wholly unanticipated by the founding fathers – e.g. the advent of computers and the impact of the Internet. Yet many individuals have attempted to interpret everything as seen through the minds of those patriots who framed the document in the late 1700’s. And the task of interpretation, a la John Marshall, has largely fallen to the Supreme Court. My sense is that this has gone well beyond interpretation and one can make a strong argument that the Supreme Court is now violating the Constitution by rewriting it without going through the detailed amendment process that the document prescribes.

The text of the first amendment to the Constitution, in part, currently reads: Congress shall make no law…abridging the freedom of speech…

In it’s decision last week (Brown vs. Entertainment Merchants Association), by an amazing vote of 7 to 2, the Court struck down a California law banning the sale of violent video games to minors. The court said video games were subject to full protection of the 1st amendment and that California does not have the “power to restrict the ideas to which children may be exposed.” In writing the majority opinion( for 5 of the 7 Justices), Justice Scalia compared violent video games (defined by the California law “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being”) as equivalent to the violence in Snow White, Cinderella and Hansel and Gretel. Somehow the difference between reading about violent activity (all of which, by the way, has a happy ending) and committing violent activity (and being rewarded for it) doesn’t seem to register with at least 5 of the keepers of our Constitutional integrity.

Where does common sense enter into the picture and where does the influence of a multi-billion dollar industry end? The chief executive of one of the largest video game companies hailed the decision as one where “everybody wins,” especially the game developers and store owners.

One could argue that this decision, although it has not changed the wording, has modified the first amendment to the constitution. The relevant portion is now interpreted as equivalent to: “Congress shall make no laws …abridging the freedom of speech or the ability of the video game industry to say and sell whatever it wishes to whomever it wishes notwithstanding the rights of parents and community leaders which shall be abrogated…”

You could argue that this places the responsibility in the hands of parents. But does it? Can parents truly exert control? Numerous “tests” have shown that, even with the law in place, minors were able to walk into stores and acquire the products. And controlling a young person’s time in front of a computer has proved to be a daunting task.

Has the Supreme Court just become another pawn in the game played by big-moneyed special interest groups? Is it not possible to draw a line relating to “free speech” based on standards of common sense? Or has violence become so endemic that we wish to give our youngsters every opportunity to develop their violent skills and their indifference to violent activity? Is this what the Founding Fathers discussed when they thought about the first Amendment’s application to violent video games two and a half centuries ago? The Supreme Court seems to think so!

© Mel Copen, July, 2011