Our American baggage: a July 4 reflection

Today marks the 240 years since an arbitrary point in time, one of several associated with the Declaration of Independence. It’s also a time to reflect on how irrelevant the Declaration is in the 21st century, despite constant references in political culture. Present American policy the antithesis of the right of revolution. The dismemberment of Occupy shows that even talking about revolution is taboo. This is to be expected- what kind of self-sustaining regime would ever recognize the right to be overthrown?

So even though it was created eleven years later, when we discuss our origins we speak, directly or indirectly, of the Constitution. Unlike almost every state with a written constitution, the US Constitution has undergone comparatively mild revision, even though it predates the French Revolution, and thus modern politics as we know it. In the past, I’ve talked about our origins as dead people’s baggage, and the problem of a pre-democratic Constitution. Consider this a third take on the same theme.

Taken from Library of Congress website.

Here’s a strange thing to consider. At this point, it is generally established that all-white clubs clash with civil rights law. This year, Harvard cracked down on single-sex clubs, indicating that even in bastions of privilege like the Ivy League, integration is now expected.

Were the Constitutional Convention assemble today, July 4, 2016, it would be a pariah. An all-white, all-male clique, who generally speaking despised the working class, and did not think of women or populations of color as citizens. Yet most people are okay with how the Constitution was created. This slides into the problematic “the times were different” defense, which has always been used to justify atrocity and injustice. All the institutions surrounding the Constitution have integrated in some sense- legislatures, courts, school boards, the Cabinet. But the roots remain the same. And when the three current female Supreme Court justices interpret the law, they wrestle with a legal history that women had no input on until a few decades ago.

The end result is a Constitution that is incredibly vague, which inherently supports existing privilege and white male supremacy. There are no protections for marginalized groups, because they were never thought to have political and social rights. In fact, one can say that constitutional change in American history is a story of turning universal rights into enforceable protections.

One reason a second Convention has never been called, despite Framers asking future generations to do so, is that the leap will be so dramatic. Can we imagine a Constitution ten times longer? Twenty? Can we imagine the Second Amendment remade? Can we imagine centuries of case law overruled?

So on this July 4th, we triumph the Declaration, as it remains pure, frozen in time. There is no sense of obligation to change it. On this day, we can travel to the past, and not bring its baggage on the return trip.

 

 

The pre-democratic American Constitution

american-constitution

 

Discussions about the American political system often seem too…exact. The foundation of law and source of political norms in the United States is portrayed as entrenched, and the Constitution set up as laying out the politics of today in detail.

For instance, the statement “America is a two-party system”. Most facts about the modern American political system are codification through improvisation. It’s because the United States has a pre-modern, pre-democratic Constitution.

Sitting at the core of American law is an archaic foundation, that we spend a lot of time pretending isn’t a dead albatross that we have to drag around. One school of legal thought is that because the Constitution is so short and vague, it can evolve with the times. Whether this is because it is a living document, or that the wisdom of the Framers is seen as a matter of political opinion. Yet the Constitution has not aged well. Modern America is held together with legal gaffer tape.

So, what is the Constitution not equipped to handle? Competitive elections (so, democracy as we know it today). Political parties. Interest groups. Money in politics. A society in which people other than white landowners had value. The welfare state. Modern monetary policy. Economic integration. Cultural shifts on civil rights based on sexual orientation, gender identity, and sexual choice. The Industrial Revolution. Multilateral treaties and international cooperation.

The vagueness has often not been a benefit at all. There is nothing in the text that says women are allowed to vote, but it took a constitutional amendment to specifically make that a right. The Constitution is not adaptable if its general principles must be updated by legally binding alteration.

In practice, the Constitution is dragged into each new era by common law. But this means that the decisions of a small, homogeneous judicial clique decides what are new rights. And there’s nothing to have reversals that go in the opposite direction of progress. Judges essentially create a substantial portion of the law from whole cloth- given the vague nature of their source material, rather than giving a yes/no decision, they have to create new standards.

Now a constitution need not be updated every year, but basically no other constitution in the world predates the basic norms of how democracies govern.

This is hardly an original view. There has been one substantial effort to reconcile the 18th century worldview with principles recognizable in 2016. Franklin D. Roosevelt’s Second Bill of Rights was proposed as a way to deal with one of the most fundamental shifts in American society- that is, economic rights that aren’t directly related to property. The proposal was nothing left than a complete revolution in the role of government. Most of the ideas in the Second Bill of Rights have never been implemented and may never will.

Besides economic rights, no procedures are supplied for how American democracy should work. The Framers willfully refused to regulate party politics, so when partisanship erupted, the rules were improvised. But the well is even drier here, because instead of vague principles, there’s just…nothing. America is a two-party state in practice, but it’s a zero party state in fundamental law.

It is frustrating that many all but worship the Constitution, while ignoring the problems caused by its continued existence. It feels like we’re playing blackjack, but using rules from a book about bridge.

Thomas Paine: an always-relevant radical

The birthday of Thomas Paine just happened, January 29th on the Julian calendar. But since he doesn’t turn 279 years old until February 9th on our Gregorian calendar, there is still time to pen a retrospective!

As a political figure, most Americans learned in middle school US History that he wrote something called Common Sense, and it was a big deal when everything was starting to pop off in the Thirteen Colonies. The trajectory of his life after 1776 showed how different his political philosophy was with the bulk of Founding Fathers. A feature in Jacobin written last year emphasized that until his relatively recent rehabilitation, Paine was the icon of rogues and radicals only. If the establishment hated you because you wanted to abolish slavery or have a trade union or whatever, you probably looked to Paine as a source of wisdom.

Thomas_Paine_by_Matthew_Pratt,_1785-95
Paine, before injustice gave him grey hair. Portrait by Matthew Pratt

What stands out with Paine, and makes him a superior model compared to fatally compromised thinkers like Jefferson, Adams, and Madison, is his consistent denunciation of all systems of exploitation. His argument in Common Sense was for independence, yes, but it was more importantly an argument aimed directly at the monarchy and aristocracy. Many Founders fought a war against a monarchical colonial power, but they weren’t necessarily republican in their thinking. The Declaration of Independence is an indictment of a particular king; Common Sense is an indictment of the whole idea of kings. Indeed, there was much ambiguity about the new American executive initially, with many wanting Washington to become king, or at least king-like. Gordon Wood talks about this aspect of the early republic, additionally his chapter “A Monarchical Republic” in Empire of Liberty is a summation of how conservative many Founders and Framers were about the break from hereditary rule.

So even in this first step, Paine was outpacing most of the other Founders. After colonial rule, he took on a whole spectrum of society. He went after the institutional church in The Age of Reason. He defended the democratic revolution in France, almost ending up a casualty in the purge-y portion. Agrarian Justice is the most substantial critique of private property and institutional privilege of its generation. He was one of the early abolitionists. And he stood against the majority of the National Convention that wanted the King executed- because he saw the death penalty as another archaic injustice not suited for a democratic age.

Indeed, Paine’s consistency is refreshing. Not only compared to Jefferson’s incoherent views on freedom and slavery in his own time, but today. Many people call themselves lovers of liberty, but only advocate for a part of Paine’s philosophy. Conservative Americans love the talk of liberty above tyranny in Common Sense, the irreligious enjoy the broadsides against Christianity in The Age of Reason. And it’s easy for liberals to like Paine’s argument for a welfare state in Agrarian Justice. Of course, this was the case in his own time- he was loved and reviled by the same people at different times. Even today, with many progressive developments, Paine remains radical. Where other Founders have calcified into marble, his fight is not yet finished.

Thomas_Paine_by_Laurent_Dabos-crop.jpg
Paine seemingly never wrote anything that didn’t make at least some powerful people mad.

The living character of his writing made him one of the few figures that benefitted from 1960s-era historical revisionism. In my generation, the pedagogy of the Founding has been complicated- how can the Virginia planters that dominated politics be lauded, when their leisure was the result of human bondage? Even now, the critique is hesitant and usually after-the-fact. Paine is in full color, waiting to be embraced.

So I believe that the question of Paine’s place in the traditional Founders isn’t worth debating. He fits in with the Founding Fathers that represent the rest of the spectrum of the American people. Harriet Tubman. Sojourner Truth. Frederick Douglass. Lucretia Mott and William Ll0yd Garrison. And even John Brown, who despite his troubling nature still was willing to die to make “all men are created equal” something other than a statement of hypocrisy. Their revolution was about more than white men and their property rights. I suggest a promotion to hang out with a much more fitting pantheon.

Dead people’s baggage

Louis Michael Seidman, a constitutional law professor at Georgetown, wrote earlier this year a book entitled On Constitutional Disobedience. His idea- that the Constitution is a lead weight for present society- was summed up when NPR asked him to give an  elevator pitch outlining his thesis:

“There’s no good reason why we should be bound by decisions made hundreds of years ago by people who are long dead, knew nothing about modern America, and had moral and political views that no sensible person would hold today.”

The appeal to tradition logical fallacy emphasizes that tradition and history proves certain arguments and practices correct. Arguments against same-sex marriage, or for school prayer stress the long cultural opposition to the former, and cultural favor of the latter. But this appeal doesn’t use reason or modern relevance, leading to broken and unfair societies. The above link urges  “until people question the logic and reasoning behind such traditions, people who are negatively affected by such traditions will continue to suffer.  Just because it was acceptable in past cultures and times, does not mean it is acceptable today.”

Doug Stanhope, a foul-mouthed political comedian, once opened a bit by declaring ideas like patriotism and heritage “dead people’s baggage.” Due to social inertia, present society is unlikely to radically change its institutions. The question then arises- what can be learnt from the past, and what is merely that lead weight, the baggage of long-dead people.

Therefore, the past is divided into what is presently useful, and what is archaic and without use as a guiding principle. Here are some possible dividing lines

  • Wisdom consists of teachings that have universal insight, and do not age as society moves forward. The wise writings of Lao Tzu, the Stoic philosophers’ appeal to moderation and virtue, and history books that warn of excess, tyranny, or catastrophe. Wisdom can be very short- perhaps a short poem- and perhaps many books are a mix of wisdom and 
  • The Archaic are teachings that have been broken or only rarely have present use. They can be combined into good, modern ideas- but only with an appreciation of the context and the language used.
  • Baggage are things dragged along which lack relevance and clarity. They may inhibit justice without bias, or contribute to discrimination and bigotry.

The Constitution is a mix of all three. The wisdom of the First Amendment, or the lack of a religious test for office, or the parts making sure that states cooperate and recognize each other’s laws all bleed into the present. The unusual and archaic language in the Second Amendment has led to a present culture deeply confused about the role of guns. And the baggage of a contingent of white men, many slaveholders, is there. And why do we give them more deference than a modern day believer in racial inferiority? At some point, “of their era” is no longer an appropriate excuse.

Thomas Jefferson is one of the founders of American political philosophy, and his words are frequently true. But why follow his ideas on economics and taxes? He could barely keep his massive slave estate  from default and didn’t understand why he had such massive debt.

One should be careful with relying on the thinking of people born before the Rights Revolution, or the Industrial Revolution. It can only be so relevant, and to bring it into the present is just being a bellhop for dead people with antiquated ideas.