Whatever Happened To … ?

There was a presidential election last November. No one got a majority of the votes. It happens when there are more than two reasonably popular (or unpopular) candidates. What results in such an election is that one of those running has a plurality – more votes than anyone else, but not a majority. And that person is usually chosen President.

But not always. And that isn't what transpired in this election. The system we use puts the final decision in the hands of an “electoral college,” a construct that lets a majority of voters in each state register votes for the president, which are cast almost always unanimously by the electors who proffer the state's votes. That prevents a few states with large population from deciding a result that may be detrimental to the majority of the states though they lack a majority of voters. It's a constitutional provision.

And whenever it occurs there's a demand that the Constitution be changed and that popular vote be the deciding factor. That's what just happened this time. (Although attention to the problem disappeared when other things appeared in the news. Whatever happened to all the rage that initially surrounded the issue?)

Changing the subject a bit, the second amendment to the Constitution provides for arming of “the people.” There are many, myself included, who believe the amendment is too broad – perhaps even unwise in our times – but it's part of our Constitution, our laws, and we're obliged to accept it.

Yet whenever there's a violent incident involving a firearm there is immediate outrage and protest regarding the amendment. However the situation is usually forgotten quickly by most of our citizens as other news supersedes it. And those who continue opposing firearms wonder whatever happened to the anger. Our attention span is limited.

That's the way it is with most issues today. The world's changes and the news in general come in such great volumes and variety that we get excited only for the moment and then forget our indignation and move on to the next issue. Most problems are not solved. Of course if new legislation aids a particular lobby, or improves the image of some politician it has a good chance of implementation – if the opposition isn't sufficiently significant.

But there's another way that change takes place. Even if we don't change the laws we can alter our understanding of what they mean. The courts do it all the time. Thus, for example, although the courts acknowledge and affirm the Second Amendment – they're sworn to uphold the Constitution – they're quick to permit limitations of the “right” as legislated by individual localities. Hence there are requirements for registration of the weapons, requirements for training of those permitted to own them, safety rules, and a plethora of other regulations that control use. Proponents of such restrictions demand further limitations – at least that's what they encourage – but their real goal is elimination of the amendment. And perhaps their goal is worthwhile.

The use of interpretation is time honored. It occurs in regard to religious dicta and literary works, in addition to legal ordinances, and the idea has much merit. Not only does it allow for the filling in of lacunae which were intended by their authors as foci of thought, but it allows advocates of change corresponding to modern conditions.

But there are many who believe that the courts “interpret” laws to coincide with their own biases or those of the “squeaky wheels.” Not always, but enough of the time. Hence there are new definitions of privacy (a concept not mentioned in the Constitution) to include an array of sexual practices, decisions about health, and others issues involving various “isms.” There are other “interpretations” as well. Though I favor some of them, I'm not certain that the writers of the Constitution and its amendments would approve. “Whatever.” they would wonder, “happened to the rule of law? We gave them a mechanism to change the Constitution, but they have chosen to protest and 'interpret' their way around those provisions they don't like.”

I agree. Much of what currently favors alternatives to the document as written are based on whim, bias, and fashion. That doesn't mean they are wrong, though some of the views are clearly out of touch with the views of a majority of Americans. But many assert that we're as smart as the Founding Fathers and we're attuned to recent societal changes. What we want makes sense.

That view the Constitution's authors would surely support. And they would reiterate a challenge to rewrite or add to the Constitution on which our democracy is based. The process is difficult, but there is a process. Not just loud voices.

Whatever happened to process and order?

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.”

The American Constitution

One of the most remarkable political documents ever formulated was the American Constitution. Because it was written in a new country – one that had just broken with its past – there were few constraints on the methods it chose to deal with the problems it faced and the ones it foresaw. And it has remained in place to this day, though not without many changes – both those which came about by the means it prescribed, and those which had their origins otherwise.

Our nation was founded as a result of perceived tyranny; at least that was the sense of many of the white men who lived in the colonies. There was no interest in the perceptions of women and even less in the views of non-Caucasians. The governing document was formulated in secret by a small number of representatives of the individual colonies who, after a good deal of argument, agreed on a compromise document that was acceptable to a majority, even if it wasn't viewed as ideal by any of them. It was then presented to the voters of the colonies – a minority of their residents – on a take-it-or-leave-it basis. The decision was to take it, although the Constitution's promoters were forced to agree to the formulation of a Bill of Rights that would be added as the first order of business of the new government.

Even if the new system was less than many wanted, however, it was greatly superior to anything that had existed before. Its writers scorned the idea of monarchy and rejected in general the concept of classes or of any hereditary status.ⁱ There were provisions that would minimize the authority of religion in public life, while simultaneously preventing the government from involving itself in the religions of our country's citizens. Much was made of the responsibility of the new country to protect those citizens. In short, the new document was, from a political standpoint, far to the left of what it replaced.ⁱⁱ The origination of a modern liberal democracyⁱⁱⁱ as an antidote to tyranny required a new “rulebook” to provide its structure.

Much has happened since the late eighteenth century – in philosophy, economics, politics, history, and sociology, among other fields – and America has remained at the forefront of republics based on representative democracy. Our Constitution has endured as the solid backbone of our political body. But that body and its backbone have aged and have changed with the passing years.

The changes have come about primarily by two mechanisms. There has been amendment, as was authorized in Article V – a method which has given us, among other things, the Bill of Rights, popular election of senators, and guidelines for equality of the races and the sexes. But more recently there has also been extensive alteration in the Constitution based on a changed understanding by the Courts of the document's meaning. Often their interpretations reflected social changes corresponding to our citizens' wishes – but not always. Still the Courts see hints in the Constitution of rights not specifically listed or, in the view of many of our citizens, even suggested. And it has found prohibitions not apparent to many.

But the world has changed, and a document aimed at needs and beliefs which held sway nearly two and a half centuries ago has required updating. What was unique then can no longer make such a claim. What was a “left-leaning” charter then is now the centerpiece and jewel of the debate for those on the “right.” Whether that is a good or a bad thing it has come about in a haphazard manner often without the agreement of the people ruled by it. As such, it often establishes law without the consent of the governed. And we sought and obtained our independence because we viewed that as intolerable.

There are strong feelings about the solution to the problem – indeed, about the very nature of the problem. For many of our citizens the proper response to the current situation is to keep the Constitution we have, although they believe it should be enforced according to the original intent of the Founding Fathers.^iv The amendments, which have become inherent elements, were incorporated according to the rules provided to do so, and, therefore, are valid and obligatory for us. But perhaps positions taken based on the interpretations^v of Supreme Court Justices and others, and never ratified by “We the People of the United States,” lack the authority to bind us.

Others consider the acceptance of the interpretations and the views of legal scholars to be a proper way to adapt the document to a changing world and a changing culture. And they consider the present system of the balance of powers to be outdated. For them a stronger executive^vi is needed in order to run the country efficiently in the current difficult and threatening times, and to provide leadership and change when Congress does not act in a manner he^vii deems rapid enough, or in the national interest. Many would also make explicit^viii many of the rights which have been assumed and implemented over the centuries – often without obvious basis in the Constitution.

Still others regard the entire document to be flawed and in need of replacement. They might strengthen the states or weaken them. They might eliminate the right to bear arms or they might outlaw it entirely. Perhaps they would actively define “personhood” or “marriage” or even “rights.” For many of them, any action short of starting from scratch would be inadequate. It cannot be ignored that the founders provided for change because they knew that the document as written would require modification from time to time. Some believed that the explicit consent of the governed would be necessary, and that our fathers' laws were not binding on us.^ix

There is fear that any attempt to change the Constitution would get out of hand. It is a valid and a very ominous concern. But similar fears existed when it was first written and we are the better because our predecessors took the risk. Change is never easy for a single individual, and it will be an extraordinary achievement if our close to 320 million population can reach some kind of agreement. But perhaps now is the time to discuss the advisability of such an action and, if that is the path we choose to take, the way we do so.

Next episode: “For The Sake Of Our Children” – Live now so they can thrive later.

I        At least officially.

ii       Admittedly the concept of “left” “right” political division originated during the French Revolution, after the United States had separated from England, but the terms describe the political shift that occurred when the American Revolution came about.

iii      More accurately, a republic.

iv       Whether we actually know their intent is debatable, but there are many who are convinced that the views they hold are the ones to which the founders subscribed.

v        And biases.

vi       A king, perhaps.

vii      Or she.

viii     Some would prefer to reject or limit.

ix       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.'”


NB:  My contrary opinion will appear on August 26th.  I can't make up my mind.

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?

There She Is, Myth America

American history is draped in mythology. The drapings are, of course, a mixture of red, white and blue, but the mythology, itself, is pure white.ⁱ Whether Parson Weems or a modern text, the history is intermixed with unprovable – often invented – stories that add to the image of a great nation – a nation with a glorious mission – one with a Manifest Destiny. And, daily, the myths increase.

That shouldn't come as a great surprise. All societies remember their pasts with a luster that often exceeds reality, but one that answers the great inevitable questions in a way that both engages and honors us and our forebears.

Few history books will mention, for example, that George Washington was a poor generalⁱⁱ or that Alexander Hamilton was probably a British agent.ⁱⁱⁱ Most will gloss over the fact that although Thomas Jefferson was a strong advocate against slavery, he was, himself, a slave owner. My intent is to deal with what actually happened – at least to the extent that we can so long after the events – not to belittle our Founding Fathers. Their greatness is undeniable. The documents upon which they founded this nation,^iv and the nation which has developed following the outline they put in place, are of unmistakable brilliance. Both are masterful products of their time, and those who fashioned them must not be judged by us. They acted, too, in accordance with the principles of their times, and they not only did the best they could, but they did a superb job.

But that's the point. They, and the founding documents, were products of their time. And we live in different times. Sooner or later those documents will have to be reviewed and revised to reflect the times in which we live.

“Jefferson also believed – uniquely – that this world belongs, solely, to the present generation. Hence, every twenty years or so, new laws should be promulgated at a constitutional convention. A grown man he noted in his best biblical parable style, should not be forced to wear a boy's jacket.”^v

Jefferson's view was acknowledged in what eventually was termed Federalist Paper number 49, although James Madison, who wrote that “letter,”^vi opposed constitutional conventions. And Jefferson was not alone in believing that the Constitution – the script for the great American drama – which we have come to revere, would have to be brought up to date periodically. There were many who recognized that a perfect document was not achievable at that, or any time, and that amendments would be required periodically.

The United States is one of the greatest countries on earth.^vii It is strong, rich, and the kind of place to which people from around the globe want to go. Some risk their lives to do so. And it exists because those who founded it endowed it with a governing document that was unique – one that has served as a model for other nations since then. But the mythology surrounding the founding itself and the documents employed to do so, as well as the virtue and wisdom of the founders, clouds the fact that however great they may have been, however far they may have been ahead of their time, they were fallible human beings of the eighteenth century. They were products of that age, but their time was not the twenty-first century in which we live.^viii Jefferson was right. “A grown man … should not be forced to wear a boy's jacket.”

The two major political parties have created their own “realities,” or, more accurately, their own mythologies. They have expressed exaggerated views of their own virtues and, very much in evidence at election times, frightening characterizations of the evils of their opponents. And the parties tend to become even more confrontational following election. The three branches of government, like the political parties, compete rather than cooperate. Each works hard to increase its own influence, leaving the mythical “We the People” out of the loop. Although our Constitution provides for a form of democracy, the reality is that the “representative” democracy our founders gave us is not representative of anyone but the politicians themselves. Having promised us solutions to all the problems we face, our representatives, once in office, focus on the next election rather than on our needs. The Executive branch of our government claims to lead, but its members are more likely to say what poll-takers tell them will sell, and after election they go on to assert their power and act as they see fit. And those of our Judiciary, who may never face an election, are free to follow their own views, irrespective of the wishes of the people they are supposed to serve.

The ability to review the mythology, however, and, if necessary, to change it, is built into our system.

Article IV

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.

The Constitution, which we sometimes view as sacred, provides for measured changes. No more should be necessary since its authors saw it as the answer to our country's problems and a solid basis for an infinite future of liberty.

But it was written illegally. The convention from which it emerged had been asked to amend the inadequate Articles of Confederation – not to write a new document. And we are as free as they to rewrite the Constitution rather than amend it if there are enough changes that need to be made, and if individual amendments will either not accomplish our wishes or will, because of their large numbers, either take too long or prove too burdensome to accomplish. It may take historical revisionists to correct our mythology, but a united citizenry – one fed up with current bickering and manipulation of the system to suit the needs of those who are supposed to work for us – has the ability, at least in theory, to invent our own future and the mythology that surrounds it. Whether we have the will to do so, though, is a different question. Probably not, because it's easier to live by the rules of an imagined past.

Next episode: “Gossip” – Some words to the wise guys.

i     The word refers to the purity of the story only, not to the harsh realities of our history. No defense of “racial purity” is intended. Indeed, it shouldn't be overlooked that racial politics spawned a separate mythology designed to justify the indefensible practice of slavery.

ii    Fortunately he was a patriot. He was honest and politically savvy even if he was a poor soldier.

iii    Recognizing the greatness of the work he did in establishing this country, we can only assume that he believed a close association with Great Britain would be beneficial to our survival. Whatever other motives he may have had, and notwithstanding disagreements we have had – and even a war – we have found our alliance with England to be mutually beneficial. In Hamilton's time, moreover, the (American) colonies had many supporters in the British government. England, to a degree, was just as happy to be rid of the colonies which had become a major financial burden, detracting from her hostilities with France.

iv    Primarily the Declaration of Independence and the Constitution. The efforts of James Madison in writing the latter document are also noteworthy.

v     From Inventing a Nation by Gore Vidal, 2003, Yale University Press, New Haven & London. Page 14.

vi    The Federalist Papers originally appeared as newspaper letters signed by “Publius,” but written by Madison, Hamilton, and John Jay.

vii    Some will take issue with this assessment, and that is understandable. They cannot, however, argue with the specific qualifications I mention in the next few sentences.

viii   In this electronic age – one never foreseen by eighteenth century politicians – both the tools and the rules have changed. See Constitution 3.0, by Rosen and Wittes (eds), Brookings Institution Press, 2011.

Judge For Yourself

(Part two of the discussion on Constitutional changes relating to the Judiciary.)

Republican presidential candidate Mitt Romney says rival Newt Gingrich's idea to send Capitol Police or U.S. marshals to bring judges before lawmakers to explain their decisions is neither practical nor constitutional.

Romney says the answer to out-of-control judges is not to tear up the Constitution and say that Congress is the ultimate power in the country. Instead, he says the Constitution should be followed when it comes to removing judges or reversing judicial decisions.ⁱ

Judicial activism is raising a lot of political hackles. Whether a particular action is justified,ⁱⁱ there is no question that the power of the courts to “interpret” the law also allows them to create it. That is why the ability to appoint Supreme Court Justices (and other Federal Judges) is one of the most important of the President – an idea that is loudly proclaimed in the presidential campaign. It is why judicial policy is such an important part of the debate when politicians frame their platforms. And, to a degree, it's fruitless to argue that the Justices' actions violate the Constitution, since they're the ones who will make such a determination.

A typical example involves privacy. Although it is never mentioned in the Constitution, and despite the Tenth Amendment which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” in Griswold v Connecticutⁱⁱⁱ the Court found that privacy was guaranteed by the Constitution. The First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, said the Court, provided such a guarantee, even if they didn't mention privacy. According to the majority, it existed in the “penumbras” and “emanations” of other protections offered by the Constitution. Thus Connecticut's law against contraception was unconstitutional. This decision was not “reserved to the States” despite the Constitution. And in 1973, in Roe v Wade^iv and Doe v Bolton,^v the same doctrine of privacy was the basis for sanction of abortion – also not mentioned in the Constitution. Because of the opinions of individual Justices about the importance of privacy and the propriety of contraception and abortion, since these matters were not treated in the Constitution, hooks had to be found to justify these personal opinions and judicial decisions. The Court was, in reality, legislating.

It is not at all clear that the Founding Fathers intended that Justices with lifetime appointments should have this power, but that is the way it has turned out, and no one questions it any more. Perhaps, however, that situation should be reviewed. Although “We the People” may have been the originators of the Constitution,^vi “They the Courts” have arrogated to themselves the definition of what “We” meant, and what is right for us. If there is to be any meaningful system of checks and balances, we need to rethink the system under which we live and, possibly, revise it.

Someone has to have the responsibility of determining what our laws mean. That's not arguable.^vii And the judiciary created by the Constitution seems to be the appropriate party. But with the goal of a court system which will consider public opinion – even if it does not accede to it – some alternative measures are worth exploring. After some basic questions are posed.

Should judges be elected? Should they be designated by experts? How can we make them more responsive to public wishes? Should we? How, if we do so, do we protect minorities? Is there any way to review laws passed by Congress, and court decisions? To what degree should public opinion play a part in such reviews?

Before answering these questions, though, it is important to note that “activism” is not solely a feature of the judiciary. The legislative branch – Congress – spends most of its time in activism – framing laws that will govern our actions. We may not agree with these laws but we're bound by them as long as they are on the books. And the executive – the President – will frequently issue “Presidential Orders,” often covering areas of law or procedure that he believes have not been dealt with properly by Congress.^viii In these instances – regarding the legislative and the executive branches – however, at least in theory, the average citizen's opinion will be heard by legislators and the executive (or their staffs) and it could conceivably have some impact. And the various players will be up for election within two to six years. That doesn't mean that they will necessarily follow the wishes of the voters – in fact representative democracy gives them the power to superimpose their own judgments over those of the voters – but it makes responsiveness more likely and provides remedies for dealing with those who wander too far from the wishes of their constituents.

At present, however, those options don't apply to the courts. The executive has the power to make appointments, and the Senate has the responsibility of advising on such appointments and consenting to them, but once the appointment has been confirmed it comes with lifetime tenure. True, a Judge can be impeached, but that is for a violation of the law, not for deciding what the law is. And voters play no part at any point in the process. The Federalists, who largely set the rules now in the Constitution, didn't trust the “people” to make those decisions, only the elite, so the rules reserved the appointment of judges to members of the Federal government – men they believed better able to make such important choices. And they wished the noble individuals so chosen to be insulated from public opinion. They would have the final word and they would never have to justify it. No one could call their decisions into question, and no one could do anything about it.

The time has come to reconsider this system. “We the People” are entitled to have our voices heard in judicial decisions as well as those of the executive and legislative branches. And the only way to do so is by altering the Constitution itself. Because, short of a constitutional convention and a rewriting of the document, major changes must come one at a time, the suggestions I offer are few – if far-reaching.

First of all, some consideration should be given to the method of choosing Justices. The current system of choice by the President guarantees that the appointment will be based on doctrinal issues and, since the Justice is likely to outlive the political administration, the Court's complexion may ultimately be out of touch with public opinion. This is not to suggest that public opinion should be the measure of the law, only that it is subject to change, and legal expertise, not political expediency, should be the main criterion for selection. A non-partisan commission of some kind could recommend a short list of highly qualified candidates – and views on particular issues would not be considered, only the qualifications of knowledge, wisdom, and understanding along with a sense of the popular mood. One from the list of candidates would be chosen by a committee consisting of the leaders of both (or all) major political parties. If agreement were not possible within a short fixed period of time, the choice would go to a preselected group selected by the American Bar Association. Some doctrinal litmus tests are likely to be used. They're unavoidable. But the choice will be less a political one than is currently the case.

And once appointed, the Justices would have the benefit^ix of periodic review. How might this be done? In the age of the internet, access is, or should be, available to all. Whether this is at home or in a public facility,^x every citizen might be given the opportunity to vote on each Justice at (for example) ten year intervals following his or her appointment.^xi The voting website could include a listing of “significant”^xii positions on cases decided by the Court since the individual's previous “review,” with a short evaluation by the Bar Association or another independent group. A Justice could be voted out of “office” if two-thirds or three-quarters of voters felt his (her) views were unrepresentative. In a country having a majority of “minorities,” a nation of the “Melting Pot,”^xiii it is unlikely that anyone would be removed for protecting minority rights. Congress would still have the responsibility of impeachment for legal offenses.

A regular review of Supreme Court decisions should also be held on line. A “bottom line” summary of the decision might be accompanied by short analyses of its impact. Those analyses would be offered by those who argued the case or provided friend of the court briefs. Here voters would have the opportunity to render opinions on the wisdom of the decision. While they would not be able to overturn the Court, their views would provide information for legislators or others who might initiate the process of introducing legislation, or of a constitutional amendment that would deal with the effects of the decision. As was the case with the evaluation of the Justices, and for the same reasons, it is unlikely that minority rights will be compromised.

The non-political choice of Justices, and the giving to voters of the chance to express their opinions on Supreme Court Justices, would represent a start in the process of producing opinions that are more in keeping with the law, rather than the politics of the party in power when the individual Justices were appointed. By allowing voters to express their views regarding Court decisions, the Justices would be put on notice of when their personal opinions are not shared by the public at-large. And it would provide information for those who might want to propose legislation to remedy the issue of concern.

It's likely that many will fear that Justices would be under pressure to bend to public opinion. With evaluation only every ten years or so, that's not likely. But even if it is, is that so bad? We the People should have some say regarding the “final” decisions that rule our country.

Next episode: “Chekhov's Gun” – Consider the alternatives.

i       Associated Press report. December 19, 2011.

ii     Though by whose standards would be difficult to say .

iii     Griswold v Connecticut, 381 U.S. 479 (1965)

iv    Roe v Wade, 410, U.S. 113 (1973)

v     Doe v Bolton, 410, U.S. 179 (1973)

vi      It's not really the case, but I'll deal with that some other time.

vii    Even if you believe the law should be explicit and without the need to be interpreted, there will always be unanticipated situations, nuances, and variations that require the judgment of someone, or some people, who understand the law and the political landscape, better than the average citizen. That, of course, is not to say that the electorate shouldn't have input into interpretations of the law.

viii   On January 4, 2012, President Obama issued several “recess appointments” to positions that were open. The President has this right, the pocket veto, and several others which evade the control of Congress. In this particular instance the Senate – which is supposed to advise and consent concerning such appointments – was not in recess, so the act was probably illegal, but the President considered it justified because he didn't expect help from Congress.

ix    It is assumed that the Justices would benefit from this kind of evaluation. But you know what they say about assumptions.

x     Like a public library.

xi    For more on the use of computers for voting, and the encouragement to do so, see One Liners – Part Two, a prior essay on this site, that appeared December 25, 2011.

xii    Whatever that means.

xiii   And especially if, like Glazer and Moynihan, you believe that “the melting pot metaphor [doesn't] hold water” – that ethnic minorities retain their individual characters and separateness.