We The People

The wisdom of the Founding Fathers is undeniable. But there were wise men before them and there have been wise men (and women) subsequently.

Their achievement in writing the Constitution is general proof of their wisdom, but more specifically they recognized their own limitations, and they provided for the updating of their labors. The incorporation of a mechanism to do so is a demonstration of their love for the new country, and their dedication and determination that it be vibrant and responsive to its citizens for the foreseeable future. And if we don't utilize the tool they gave us to do so we deny their wisdom and foresight. They made it difficult – possibly out of fear that the mechanism would be overused. Nonetheless, Article V gives specific steps which could be utilized in the amendment process and, although the process is difficult, it could – and I think should – be made easier and more frequent, although this, itself, would have to be done by amendment. And that, perhaps, is where we should start.

As I noted at the outset, there have been wise people since the Constitution was written, and they are certainly more familiar with modern social mores and technology than our beloved Founding Fathers. Currently interpretation of the existing document might yield answers to the conundrums we face, but interpretations often contradict each other, and contradictory rulings are both confusing and productive of errors. Moreover while many learned scholars tell us that we should follow the original intent of those who wrote the document, they often disagree as to what that intent was.

Complicating the process is the fact that things move faster now than they did then – especially technology – and, in addition to greater speed regarding the actions performed under the laws, more frequent tweaking of the document itself is needed. Thus Inauguration Day, originally the fourth of March to allow for travel from the President-Elect's residence to the place of inauguration after the election, was changed by the Twentieth Amendment in 1933 to January twentieth. With better roads and faster vehicles, less time was needed.ⁱ

March fourth is only a single example, but the reality is that the world has changed markedly since 1789. However the Constitution – the law by which we live – hasn’t kept up. Should computers and the internet have a place in the election process? Is the current election cycle counterproductive? Do our system of checks and balances, and the relative strength of the branches, need reformulation? Should the bureaucracy be eliminated or better regulated? Do any of the “interpretations” of the law that have been adopted over the centuries need to be memorialized or disavowed? Should the courts be able to decide what Congress and American citizens meant when they voted? There are more questions, but you get the point.

Whether public opinion should play a significant role in the process is something that would certainly spur disagreement, but my view is that those who set the rulesⁱⁱ are elitist, and have too wide a set of (often personal) priorities to be allow any real choice for voters. Voting yes or no, as we do for an individual, doesn't permit the expression of views on particular issues. Not all of those issues rise to the level of constitutional questions, but a system allowing for the popular expression of opinion on fundamental matters may, in the future, provide for legislative choices as well. I think, moreover, that people in the twenty-first century are as wise as those in the eighteenth, and have the advantage of knowing the results of the original words. So I wish to present a proposal aimed at modernizing what has been a superb basis for American civilization, but which may benefit from the recognition of current views and tools.

In order for the plan to work, it would be necessary to start with the current amendment process for which I suggest the following:

In addition to the mechanisms listed in Article V, a method shall be established to allow for the initiation of amendments by all citizens, with acceptance by favorable popular votes in three-fourths of the states. The details of the voting process, and the definition of passage of any proposal, shall be set by the legislatures of the individual states prior to any balloting.

Congressional and Executive approval of such amendments is not needed for such amendments to be effective.

Polling regarding such popular initiatives shall occur in the first year divisible by four following each census.

If such an amendment were to be passed, it might be necessary to limit the number of proposed changes in each voting cycle – especially the first – since every interest group would rush to suggest changes, and the larger the number of proposals, the more likely people will be to ignore the whole process. Steps would have to be considered regarding the input of groups, rather than citizens, although, perhaps, the definition of an individual as opposed to a groupⁱⁱⁱ might, itself, require legislation.

Prior to the states taking over the voting process, a national debate should be entered to determine what topics would be subject to vote. Where possible the use of modern technology would be employed with access for all to computer systems in the libraries and other public buildings. Over a period of time, citizens might list their areas of interest and the basic problem with each in a way that a computer program could compile them, listing the top concerns of the people.

Proposed amendments^iv could then be offered for review and discussion^v over electronic media^vi with some kind of process formulated to select the top three^vii proposals regarding each question for vote. The selection of the proposals that will be on the ballot could take place over a period of time, but a fixed final date should be set for a decision about which options would be placed on the ballot for the election chosen by the previous amendment.^viii

Problems remain. The always do in a democracy. It will be necessary to protect the minority from the majority, and those who believe in democracy from those who would use it against itself. And we would all have to protect ourselves against the interest groups that might want to use the Constitution to promote their own programs. But we are a thoughtful and resourceful people, and ways to do so can be created. Times have changed and so must we.

Next episode: “Nota Bene” – Your turn.

I       The winning candidate could get to Washington today in a much shorter time, but time to rest after the election and time to organize a government and work out program proposals make shortening of the process in my opinion (wait, everything in these essays is my opinion) undesirable.

ii       Then and now. (Substitute “were” for “are” – and other past tenses – when thinking about the founders.)

iii      And, of course, the definition of when does a person attain that status, as opposed to a fetus.

iv      Length not to exceed 100 words or some other arbitrary number that would permit individuals to read and understand them.

v        In addition to the merits of the proposal itself, there may be views expressed about the costs and about unintended consequences.

vi       Or whatever else might be available in the future.

vii       That's an arbitrary number and another may be chosen.

viii     On June 22, 1788, the ninth state (New Hampshire) approved the Constitution, which was all that was needed to ratify it. It makes sense to memorialize that event as Constitution Day, and decide on further amendments then.

They The People

“If Aristotle, Livy, and Harrington knew what a republic was, the British constitution is much more like a republic than an empire. They define a republic to be a government of laws, and not of men. If this definition be just, the British constitution is nothing more nor less than a republic, in which the king is first magistrate.”ⁱ

That was then. 1775. Fourteen years later the United States also became a nation of laws, not men, when a constitution was written. True, there had been laws but they were not considered to be adequate. So a convention was called in order to correct the problems of the Articles of Confederation but those assembled produced a new, and far more effective instrument. It is the Constitution of the United States, under which we have lived for two and a quarter centuries.

It wasn't perfect. It was a compromise document. No one was completely happy, but all accepted it as the best they could get at the time. At the time. That's what a compromise is. There were conflicting opinions and competing “parties”ⁱⁱ and, in order to compose a document that would get the backing of enough of the participants, it was necessary to include the views of all of them – at least to some degree.

And, in order to get a sufficient number of the new States to sign on, it was necessary to agree to further additions.ⁱⁱⁱ But the constitution they had written took into consideration the likelihood that changes would be necessary in the future, and instructions were included for amendment. It's not easy – there have been only sixteen amendments in the 223 years since adoption of the Bill of Rights – but it can be done.

The question, however, is whether it should be done. Some feel that any attempt to change the document will result in a great deal of dissension in our country. The Founding Fathers were wise and they wrote a timeless document. The real problem is that we tinker with it rather than enforcing it. It ain't broke. Don't fix it. Follow it.

Others believe that it is broke. The original constitution may have been appropriate in its time, but that time has passed. The Founding Fathers (propertied white males), brilliant as they were, anticipated neither a country of this size and complexity nor the technology that now exists. Whether or not they agree with current interpretations, any changes should be written in rather than inferred. And questions remain: what does the Second Amendment mean?; should the President, whose authority was very limited in the original,^iv have the powers assumed by holders of the office?; what is the place of the bureaucracy in our current government^v and what should it be?; do the currently prescribed terms of office and the current election schedule make sense?^vi; should the Supreme Court be the final arbiter of what Congress meant, as it has asserted?^vii,viii And there are numerous other unanticipated issues which might be addressed head on. From their perspective, now is the time for a new compromise – new amendments or a new constitutional convention.

As I mentioned, changing the Constitution is no easy matter, but it can be done. Should it, though? Whether or not public opinion favors alteration or upgrading of the present document, there are considerations other than text that must be considered. What would be the mechanism of change? How can we incorporate the concept of "consent of the governed" in that new document and in the procedure to formulate it? Is there the possibility that the process will be compromised by fraud? Will "rich lobbyists" dominate the discussion of the proposals? Should the political season be limited? Does public involvement raise the specter of majority rule at the expense of the minority?

These are just a few of the many questions that come to mind when considering the reopening of this great document,^ix but it seems clear, since they provided for it, that the Founding Fathers both approved of, and expected, changes to be necessary. Until such time that it is done, however, it is incumbent on all of us to follow the rules that now exist, whether we agree with all of them or not. I don't, but we're a nation of laws, not men, and the ones that exist now are the ones we all have to live by.

In the next essay I'll offer some ideas about changing the Constitution. Perhaps some of them are feasible.

Next episode: “We The People” – It's time for a change.

I        John Adams, Novanglus Essay Number 7, 1775.

ii        Actually there were no parties at the time, but there were two main bodies of thought comparable to the parties we have today.

iii       The Bill of Rights.

iv       Out of fear that he would assume the role of King. They had suffered greatly at the hands of George III. They suffered at the hands of Parliament as well, but they feared the King more. Thus they made Congress primary (Article I) and the Presidency relatively weak (in Article II).

v        It has been termed “the fourth branch of government” by some (analogous to the Legislative, Executive, and Judicial branches established by the Constitution – the maker of most of the rules by which we are governed), but that term has also been applied to lobbyists and other interest groups.

vi      See “Cancel the Midterms,” David Schanzer and Jay Sullivan (New York Times, November 3, 2014)

vii     The writers of the Constitution had relatively little to say about the Judiciary, and they dealt with it after the Legislative and Executive branches (in Article III). There was no clue in the Constitution that it would take on the power it now has.

viii   Indeed. Will Supreme Court view Constitutional change as constitutional? Especially if it weakens them.

ix      Can of worms?

Original Intent

I'm one of those people who are reluctant to put words in someone else's mouth. It's a real problem. Straw men are so much easier to knock down than real ones, and they don't fight back. But my inclination is to take people at their word.ⁱ It's not always easy – not because I disagree with them but because I don't always know what they said. So if I want to consider and deal rationally with those words, I'm at a disadvantage.

There was a time when I didn't care what their opinions were; I knew how things should be even if they didn't. Their words were interesting, but only from a historical point of view. I and my contemporaries were as smart as they, and we could reach logical conclusions without their help.

It didn't take long to realize that many others held the same point of view. The only problem was that different people had different “logical conclusions” concerning the same sets of facts. The situation was chaotic – even anarchic at times. Even when the statements made by our founders seemed clear and reasonable, there were many who ignored them because they knew better. When they thought changes were needed they were quick to suggest them.ⁱⁱ Even so, they seemed eager to concede that their ways might not be the best for everyone. At least not for those from other cultures. Right and wrong depended on the teachings of those cultures – they were not absolute. That was my view when I was young.

But as I grew older my thinking changed and it became clear to me that some things were absolute. And I knew what they were. Interestingly I found that many of the truths which I knew to be valid were stated in the Declaration of Independence, and in the context of that declaration and the conditions it described the Constitution seemed, for the most part, like an eminently sensible document. The “Founding Fathers” were on to something, and the idea of radically changing it, whether through legislation or the courts,ⁱⁱⁱ was both a denial of common sense and of our heritage. It's original meaning, and their original intent, should, for the most part, hold sway.

It didn't take long, however, to recognize that we often lack understanding of what that intent was.^iv Although some of the participants took notes and explained what they had in mind, the keeping of records was discouraged, so our knowledge is limited. It's clear, though, from the writings of the time,^v that the Constitution didn't mirror the intent of all the participants; it was a compromise document. And some of the words they used in the eighteenth century had different meanings then – not the ones they have now. Additionally, perhaps some of the words are misprints or other kinds of errors.^vi

What also governed their decisions were the conditions of the time: the conditions they had endured under the English King.^vii That was the context which dictated their intent.^viii

Thus extensive reading and preparation were necessary to understand what the intent was, but it was worth it. And a great appreciation of their foresight resulted. It became clear that their debates resulted in nuanced language and principles that could be applied to most predictable conditions not just those existing at the time but ones that would arise later to test our system. It was also apparent that in some cases judicious – sometimes judicial^ix but not always so – interpretation of our founding documents would be necessary.^x And when such clarifications now emerge – whether through the passage of new statutes or the (re)interpretation of old ones, they are the law of the land. Moreover, the founders realized that there would be a need for amendment^xi of the original document and they provided for it. It's difficult but possible.

Also confusing the issue is the question of whether a particular view expressed then related to a specific problem faced at that time or whether its author saw it as a general principle. How would he apply it, if at all, to a new but, at least from our perspective, analogous situation? Does our extrapolation of the principle faithfully reflect what he would have thought had he lived now?

But an important question remains: “So what?” That was then this is now. Should we in the twenty-first century be bound by eighteenth century thinking? Should we be bound by agreements to which we were not signatories?

Fortunately, however, those are easy questions. The answer is “Yes!” To both of them. If we consider those documents and concepts erroneous we should change them, difficult as that may be. But we should not ignore them. Our society is based on the rule of law, and the rulebook is an old one. We cannot flout our heritage because we didn't make it, any more than we would refuse an inheritance because we didn't earn it.

For me, then, it is clear that the law is the law, and like it or not^xii we are bound by it. Given the opportunity, I would favor reliance on the words of the founders to the extent possible, with interpretation limited to unmistakable analogies unless we, the Founding Fathers of our generation, decide otherwise by altering the document on which our society is based.

Next episode: “An Offer You Can't Refuse” – Try at your own risk.

PS.  Tuesday, November 4th is election day.  Don't forget to vote.

I        In this case my primary – but not exclusive – interest will be in the words of our Founding Fathers. I'll be referring to them when I don't specify otherwise.

ii       In some instances, however, they had a low tolerance for change. From their perspective – and I am in full agreement – it was only fair if they could pass on their property to their children when they died. It might be reasonable to give public funds to satisfy all sorts of interests – whether the poor, the arts, snail darters, or whatever – but not their money. (They didn't realize that the “public funds” were their money – money whose free distribution is something which, from my perspective, needs to be rethought.)

iii      Or by Presidential decree.

iv      The same is true of Shakespeare and other literary figures. Often we need explanatory notes if we are to understand what they meant. And there are times when the expositor reads (his own) ideas into their words, ideas that, in all likelihood, were never there, attributing them to the author's unconscious, and praising their prescience.

v        Expressing ideas as disparate as the ones we have now.

vi       That's the explanation often used in rabbinical writings. Since there is a general principle in Jewish law that the words of earlier authorities cannot be changed, more recent expounders have to “understand” their words in a way that might not be obvious. They “correct” “erroneous texts” and interpret what their predecessor “meant,” which may be very different from what he said, or they describe unlikely scenarios or conditions that circumscribe the effect of his ruling.

vii      More about the King and the Constitution in a future essay.

viii     Our current context is very different but that doesn't invalidate the Constitution.

ix       In Marbury v. Madison the courts arrogated to themselves the power of the last word in most cases and, for better or worse, that action was not contested.

x        The same is true in other areas. For example, reading religious texts without explanation and interpretation can be difficult. While interpreters often disagree, their discussions may unlock ideas whose presence will have been unexpected. They might also surprise earlier authorities – but that doesn't disqualify them. If those earlier authorities didn't anticipate changed conditions that were in their future, they wouldn't have guessed at the questions they might raise. We can only hope that their wisdom provided enough guidance for us to answer those questions while remaining true to their principles and intent.

xi       In fact, the Bill of Rights – the first ten amendments – was a precondition for ratification by many states.

xii      And there's much I don't like.