Friday, January 4, 2013

Dump the Constitution? NYT Opines / Cloud Willam disapproves.

Sanka freeze-dried version of this OpEd cleaning up the leading language. Entire text below, with comments:

1. American political dysfunction is caused by the centuries old intention to use the constitution as a basis, a touchstone for legislation and other governmental action.

2. This intention has made it impossible to discuss issues on their moral, economic, or etc. merits.

3. The constitutions status as basis is sullied by the fact that its writers were all white, did not include landless, and did include at least some slaveholders who had no compunction about the practice.

4. Acting despite constitutional limitations has a long and storied past. Several instances are cited.

5. Because there are two basic schools of thought on constitutional interpretation, and Supreme Court justices use both, it follows that at least some decisions now respected must in fact be unconstitutional.

6. Giving up on the constitution will not land us in a Hobbesian state of nature.

7. A subset of constitutional requirements must be retained. But the basis of retention should not be that they are required by the Constitution.

a. Some instances he cites come from the BOR.

b. Others come from the articles setting up the three branches of government, and their respective responsibilities. He claims they are best left un-debated. He does not make an argument for this.

8. Another subset of constitutional requirements must not be retained, but must be debated and re-instituted on an ongoing basis. No argument for this either. No basis given for sifting 7 wheat from 8 chaff.

9. Chaos will not ensue if a written constitution is not in place as basis. Look at GB and NZ. They have long standing traditions and procedures in place that act as basis.

10. Therefore: We should stop using the Constitution as the basis of U.S. Law and governmental action.
That's the brief version, here's the complete with my comments:

AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

Funny, I thought that we were on the fiscal precipice because politicians over the years cannot reign in spending, something that would be prevented by following the constitutional procedure to pass a balanced budget amendment.

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

What is he suggesting here, that the separation of powers between the two chambers in terms of origination of revenue or spending bills be jettisoned? If so, do the two chambers also share other responsibilities or privileges? How would this grease the wheels of government, if something like this is instituted?  I can imagine an even greater logjam as the two chambers create greater amounts of competing and contrary bills with conflicting claims to powers. How would this arrangement work with confirmation hearings or treaties? Should the executive get in on this act as well? How about the Supreme Court? States? Localities? On what basis would such questions be answered? On what basis would such contests be decided?

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

This just seems false on its face. The merits of divisive issues are debated non-stop in this country, and often in the guise of the interpretation of law, the basis of which in the U.S. is the Constitution. A cursory acquaintance with the history of the U.S. and arguments before the SCOTUS and in Congress should be enough to disabuse a person of believing this.

 Public discourse is no more inflamed now than it has been in the past. That is attributable to human nature, not the existence of fetishism toward written constitution. Don’t believe that? Look at the inflamed nature of public discourse in those parliamentary countries the writer cites a bit later on.  It’s not the Constitution, it’s us.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

This is silly, but indicative of the nut of this argument: It’s not so much constitutionalism that the author dislikes, but originalism.  When deciding law or policy we often rely on the wisdom or judgment of those that have come before us, as the author himself notes. They do this in parliamentary countries with traditions of common law, right? So, why would this sort of reaction to novelty not be even ‘remotely rational’ a reaction when it comes to asking such questions about this particular set of individuals from US history?  He gives four reasons: they were white, they lived a long time ago, they acted illegally by British law and “thought it was fine” to own slaves. 


If we are to disallow considerations of this ‘what would _X_ do’ sort in instances where the person’s whose name to be placed in the blank is not morally perfect or has broken a law or is dead, or is of majority racial status, that is in effect disallowing every single possible consideration of this sort. 

Last thing: the contention that these long dead white guys had no moral misgivings about slavery is, to say the least, historically inaccurate. There was moral disagreement not only between individuals but within individuals. Indeed, Thomas Jefferson, and even the 3/5 compr0mise evinced this.

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

This was a move not to be taken lightly or for trivialities, nor done on a regular basis, as most of the founding fathers argued, most perspicuously argued by TJ in the Declaration, even if he held contrary views later (see below).  Conflicted on slavery, conflicted on constitutions; that’s the TJ way. But what is of note is that all were in agreement that a written constitution was the way to go.  None of them argued for dispensing with such a constitution? Why was having a document so important? Because it acts as a check on bad  behavior in a way superior to reliance on some other method of control.

No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.

No doubt this is evidence that dead white constitutional founders disobeyed this or that requirement of the Constitution, but that does not necessarily make the case for dispensing with the document in its entirety as a basis for U.S. Law and governmental actions. Heck, even TJ didn’t advocate that. He wanted a constitution in place, even if it was to be revised once a generation.


Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored. When Abraham Lincoln issued the Emancipation Proclamation — 150 years ago tomorrow — he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)

One wonders if the issue of slavery would have come to a head, and slavery been so completely abolished had there been neither Constitution, nor intent to abide by the Constitution come what may.  It’s one of those difficult counterfactual speculations, but it seems that the process of eradication would have been longer, not shorter if the Constitution had not been in place. We would have probably had two contiguous countries earlier, and a civil war may have been averted, but at the price of slavery extending decades more. Who knows? Counterfactual speculations are like you-know-whats. Everyone has one.

In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation.

Is not the fact that the Constitution gave clear written grounds for legislative check on FDRs ambitions in this matter a selling point for the document as basis for US law? I’m confused here.  Seems Roosevelt would have been more prone to this sort of thing, not less, if the Constitution were not in place, and he would have probably been more likely to get away with the court packing move. Arguments in favor of the document as check on tyranny or abuse of power.

In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.  

What exactly is this list supposed to prove? Is it that sometimes the Constitution is used to check bad moves, and sometimes it is a check on good measures or rationalization for bad?  Don’t common law and parliamentary societies have these same features and risks? The presence or lack of a written document as basis doesn’t preclude these things from happening. But does its presence tend to curb the long term staying power of bad policy? That case is not addressed here. That case can be made though. A sketch of such a case was presented in the case of slavery just above, but no doubt similar cases can be made for other things.

The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results — by definition — must be wrong.  

Once again, this is not a feature peculiar to constitutional forms of government. This is something that comes along with human beings and systems of law.

IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

Flagrant disregard? How often, and of what scope?

Often that ‘flagrant’ disregard is couched in language that belies that very description, i.e., couched in debates about the true meaning or proper interpretation of the document. And once things are settled, they become part of that document, in amendments.

And, lastly, a good deal of that growth and prosperity was brought about by explicitly Constitutional arguments. To ignore that, focusing only on the ill uses of the document is to poison the well.

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.

Not quite sure what following out of respect instead of obligation amounts to, but if a case can be made that having a constitution in place that requires these rights be respected actually renders such respect more widespread than any other arrangement, including the non-constitutional parliamentarian systems, then a case can be made that we should not dump the Constitution.

Nor should we have a debate about, for instance, how long the president’s term should last..

Why the hell not?

..or whether Congress should consist of two houses.

Where’s the argument here? If you are willing to jettison the separation of powers/privileges which are constitutive of the two chambers as the author had mentioned earlier, why not take that next step and debate unicameral v bicameral? Why not? On his own grounds, it seems he should advocate this. Maybe not every day, but perhaps once a decade or once every two decades? And what about cases of national emergency? Wars? Should we open such debates at such junctures of history? TJ would probably approve. The author also seems to approve a bit later, as we shall see below

Some matters are better left settled, even if not in exactly the way we favor.  

Why? To avoid the “chaos” that a perpetual constitutional convention or a perpetual contest between branches would bring? Odd, given what is to come in this piece (see below).

Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states.

Really? Via what legal mechanism if not a constitution that clearly sets out separation of powers?

There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

“Political morality”? What is that?

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief.

I’m confused here. Claims of unchallengeable constitutional powers might be made, but that certainly does not stop the claims counterclaims and arguments of debates. There has been no “shutdown” of wartime debate in either of the last two administrations, especially the Bush admin. All of that debate and back and forth happens regularly.  Also, does the author mean to suggest that there should be no CIC?  What does he suggest in times of war in place of a unitary civilian command? Should Congress be the supreme civilian command? Should there be some sort of contest between branches for command?  How about between states and Federal level? Why or why not? Are we to go through all this each time we go to war?  Didn’t the Articles of Confederation try crap like this? Didn’t work out too well did it?

Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine.

So, if the defense by Congress fails, then should we feel comfortable with the power of the purse passing between branches of government?  If, based on a debate carried out “on contemporary policy grounds” Congress fails to make the case that it should retain said power, would you really be more comfortable with the president having that power? How about the courts? How about the states? Are we to through all this each time we go to war or want to do something of national consequence? Didn’t the articles of Confederation try crap like this? Didn’t work out too well did it?

The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

“Pretending” All that argument is pretense?  Seems the justices and lawyers involved are pretty serious about this mere pretense. They really do seem to believe they are faithfully interpreting that hoary document.

The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity.

And, I might add, one period of history when it lived by the Articles of Confederation, a period that bears a resemblance to the suggestions of this author, as regards ongoing contests between Federal and State levels, and internecine conflict at the Federal level. Are we to go through this each time we try to do something of consequence at the national level? Didn’t the Articles try crap like that? Didn’t work out too well did it?

 And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.

We have a system, long standing traditions and accepted modes of procedure, and these are embodied in a written constitution. We ARE drawing on these resources, and having robust debates, in the guise of interpretation of that constitution. Those other countries are having the same robust debates in the guise of interpreting laws and long standing traditions. So, where exactly is the big difference? If we are engaging in counterfactual speculation, imagining the United States sans Constitution, what good reason has he given us to believe that we would be better off than we are today? Bringing things back to his opening salvo; how are those other countries doing with regard to their fiscal woes? Any better showing the moral courage than us eh?

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought

Entrenched via what medium? Via the Constitution, and the tradition of argument and interpretation that has grown up around it?


Must be some other entrenched institution and habit of thought.

 and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can’t kick our constitutional-law addiction, we can soften the habit.  

But, wait a minute, if you CANNOT predict what things will look like, good or bad, then why do this kicking of that hoary old document to the side of the road? What recommends such a move? Flummoxed I am.

If we acknowledged what should be obvious — that much constitutional language is broad enough to encompass an almost infinitely wide range of positions — we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. Of course, that does not mean that people agree at the ground level. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.

Who is he aiming this at? Originalists? Living Constitution types? Both? I get a feeling it is the former given the flavor of that paragraph. It certainly has the language of the living constitution line of thought, which he apparently thinks is the second best solution to our plight:

If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

We need to give real freedom a chance? How about peace? How about the Articles of Confederation?

Please note: because we cannot get over the Constitution, we (or at least some of us) do not debate with maturity and tolerance?

What language did the author use to make this case? How did he describe the position of those that would have us retain the constitution as the basis of US law? Let’s review some of the terms:




“mere superstition”

Okeydokey then.

Why have the US Constitution then?  In short, if in comparison to other systems, you have less turmoil, less abuses of power, less tyranny, greater prosperity, greater opportunity, and greater happiness than you do without such a written document at the basis of all a nation’s laws, then you have a good case for retention. So, compare the history of the US with the history of parliamentary states. I’d say, even though one may protest we’ve been under the Constitution for a mere 224 years or so,  that we compare quite favorably with other countries an all these metrics.
We should be very suspect of any suggestions that we dump the E-Plebnista.
Exit observation: One thing is damn sure counterfactually. If we had never had the Constitution, we would never have been treated to this: