The Constitution And The Second Law

“[The President] shall take Care that the Laws be faithfully executed ...”ⁱ

“Lawmakers are weighing their options following the announcement by the Obama administration that it will not enforce a provision in a recently signed trade bill that combats boycott efforts of Israel when it comes to settlements beyond the green line.”ⁱⁱ

The Constitution established clear rules for the three branches of government – legislative, executive, and judicial – in that order, which the Founding Fathers considered reflective of their importance. And their powers were separate, as they protected their own turf and supervised and regulated each other. Indeed, the separation of powers was the crowning achievement of their effort, and even had an echo in the Legislative branch, whose bicameral construction allowed for two distinct groups of representatives that balanced each other. The specification of the limits of Federal authority protected the dominion and responsibility of the individual States. It was a delicate balancing game, but it worked.

Now, however, it's broke. The Constitution. Our Constitution is broke. The Executive has grabbed powers not assigned to him, and, contrary to his oath of office, refused to enforce legislation he does not like; the Legislative branch is more involved in lecturing than legislating, and, since popular election of Senators became the practice, the two branches of Congress have come to look like each other and there is no protection of States' rights; in addition, the Legislative branch has handed much of its power to unelected civil servants who make rules that they themselves enforce, without appeal, except to them; and the Judiciary has assumed legislative duties by deciding what it wants to discuss, which laws are permitted and which are not, as well as “interpreting” Congress's laws to mean what the Court wants it to mean, irrespective of what Congress said.

What happened? The inevitable. Although it wasn't known at the time. The Laws of Thermodynamics weren't fully codified until the following century,ⁱⁱⁱ and the founders weren't aware that the second law doomed their efforts. According to that law, thermodynamic systems progress to an increase in entropy – disorder. And that concept pertains to all systems. As time goes by, orderliness is lost. In terms of the Constitution, the orderly system formulated by the founders is foundering. And our leaders, in their quest for power, are hastening the rearrangement of law and the disorder which was already predictable. The clear cut distinctions between governmental branches have become blurred. The carefully wrought system has been compromised.^iv Human nature and the Second Law of Thermodynamics have caused changes which the Founding Fathers couldn't have foreseen.

There is an old saying, “If it ain't broke, don't fix it.” Presumably, though, if it is, do. And that was pretty much my conclusion in an essay published on July 26. As I wrote in the final end note,

“Of Thomas Jefferson, Cass R. Sunstein wrote in BloombergView,

'In a 1789 letter to Madison, he argued that 'no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.' Every constitution, he held, 'naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.'

'In 1816, specifically rejecting Madison’s hope for veneration, Jefferson lamented, 'Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched.' He feared a situation in which people would 'ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.'

'Trying to humanize the founding generation, he said, “It was very like the present, but without the experience of the present.' When 'new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.'

'“'The dead,' he contended, 'have no rights.'”'”^v

Our third President, the author of the Declaration of Independence, thought that regular change was necessary and it's hard to disagree with what he said. But brilliant as Jefferson was, I'm no longer sure that his conclusion does not, itself, bear rethinking; that the “perpetual” truth that the constitution has expired and change is mandatory. Or possible. Or wise. And we may well wonder if it would succeed.

Certainly not as a wholesale action – a Constitutional Convention. The reasons why the one in 1787 worked no longer apply: having recently declared independence, and having decided to replace the Articles of Confederation, they were starting from the beginning. They had read Montesquieu, Locke, Rousseau, and many other political philosophers, but they were writing on a blank slate. And while there were many different opinions about what the final product should look like, the were committed to its production, even if they had to make compromises. There were no political parties at the time – only philosophy and the will to come up with a document with which they could all live. And they came up with one that was elegant, concise, and well designed for our new republic. It dealt with their current needs while anticipating future problems and providing guidance for their management, and tools for doing so.

Sadly, human nature works against us and our present lawmakers, bound by party affiliations and the inability to discriminate between their own personal needs and those of the nation, would not be able to duplicate this feat, yet they would be the delegates to any convention. And that means chaos and roadblocks with, in the end, no agreement. Our only option is the one proposed originally – amendment. I won't suggest what specific changes are necessary^vi but, in the interest of order, I'm convinced that a slow and well-considered rebuilding by the amendment process is far better than descent into a convention charged with complete revision of the laws by which we've lived. An orderly reconstruction, however long it takes, is more likely to yield a meaningful result than the chaos and entropy our politicians would cause.

The laws of thermodynamics cannot be changed, but we can learn from our history and from them that what happened when our nation was formed – when our Constitution was written – represented a brilliant response to a unique situation, and that while we can anticipate eventual deterioration, it would be a mistake to hasten the process as our leaders in all three branches of government are doing. We may be able to limit the damage that time and the laws of Nature^vii impose on us, but not the ones we, and our politicians, impose.

Next episode: “Time Out” –  Change of plan.

 

 

 

 

i        Constitution of the United States of America, 1787. Article 2, Section 3.

ii       Melissa Apter, (Philadelphia) Jewish Exponent, July 7, 2015

iii      The laws are complex, but their implications are straightforward and have been parodied on many occasions. According to Ginsberg's Theorem, the first law could be summarized as “You can't win.” And the second law tells us that you can't even break even. That's the one of interest to us. We're also informed by the third that we can't get out of the game.

iv       “Compromise” here indicates not the process of negotiations toward a mutually acceptable middle ground, but the destruction of the ground itself.

v        I'm all confused and I'm not sure I have all the quotation marks correct. Live with it.

vi       I have some ideas, but they are not the focus of this essay. Right now I'm more interested in the cause of our problem and in the process of repairing it.

vii      And “Nature's G-d.”