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.

The action fallacy and Syria

The UK House of Commons finished marathon debate over authorizing airstrikes in Syria. The government motion passed 397-223. In 2013 the same body defeated a similar intervention bill, with a united Labour joined by minor parties and defections from the Conservative-Liberal Democrat coalition.

It is not surprising that this vote will succeed, and do so by a considerable margin. The Paris attacks have turned dozens of Labour MPs into hawks. Jeremy Corbyn, the most anti-war party leader in recent memory, was unable to get his delegation into line. Ed Miliband, who led the opposition to the 2013 bill, also voted against airstrikes.

Corbyn is being pilloried by the press and by members of his own party, who has been given almost no breathing room despite an overwhelming mandate in his election.

This whole debate reeks of historical blindness. Corbyn and his anti-war brethren are just being consistent- 12 years ago the same debate occurred, about intervention in Iraq.

Is there a record of Western military intervention creating stable, secular nation-states?

No.

Was there an exit strategy before intervening in Iraq?

No.
Is there one now?

No.

Will an escalation of force undermine ISIS recruitment? Former hostage and journalist Nicolas Hénin thinks it’s a trap to rally support around ISIS.

The “good war” of today will be, just like Iraq, the “bad war” of a decade in the future. Each time a Noble Defense of Liberal Democracy(tm) turns into a bloody, expensive quagmire, there’s a whole round of editorials about a powerful lesson learned. Acquired wisdom will prevent the same mistakes.

I’ll forward the title of this post: the action fallacy. In times of crisis, it is always easier to defend doing something over not doing something. A wide range of people, including some of the Labour shadow ministry, see anti-war principles as weakness. Strength involves using people and money to destroy other people. Intervening in Iraq was worth creating free university, housing, investment in clean energy. Put this way- to dive into war with no evidence that it will improve the situation is to say you oppose programs that are guaranteed to improve a situation- not just in the United Kingdom, but Syria as well. For several million dollars you can build housing or turn one into a smoking crater.

Would ISIS exist in 2015 if there was no coalition invasion of Iraq in 2003? Highly unlikely, as its leadership in part are Sunnis who were displaced, and when the army was disbanded, they took their weapons and went home. If money was actually invested in creating a strong Kurdish state in northern Iraq, ISIS would never have been able to invade east.

The Western countries which are bombing (or will soon) talk about Western values and international cooperation. They’ve been completely unable to stop Turkey from bombing the Kurds, who are those secular anti-ISIS rebels that Westerners are always talking about. Never mind that the Kurds are the only thing keeping ISIS from having a long border with a NATO nation.

I’d like to finish by shaming one MP and praising another. Alison McGovern, a Labour MP who is voting for war but wants to couch it in humanitarianism, said this in her speech:

the biggest recruitment for vile extremism is want. It is dissatisfaction with the chances the world is offering you, whether in the back streets of Britain or the cities of Africa and the Middle East where young people find that the powerful in our world forget them far too quickly.

This is an awful chunk of hypocrisy, and exactly the sort of hawkish rhetoric you get from ostensibly liberal Democrats in the United States. The biggest recruiter for “vile extremism” are civilian casualties, creating the narrative that Islam is being attacked by a coalition of Western countries and needs people to come and save it. That ISIS is not in any way a genuine Islamic organization is irrelevant- violent intervention turns logical analysis on its head. Conflict narrows the focus of all involved. It stirs up the blood and legitimates cruelty.

Yet that’s not the most troubling part. It’s an argument about poverty being a key issue of the problem. This is in part true, and would make sense were it not in a speech justifying expensive military operations. Ending poverty requires money, which is wasted on weapons and a misguided form of ‘nation-building’ that failed to turn Iraq into a stable country. And many people in the Middle East do end up joining ISIS out of poverty- Western-created from warfare. The War on Terror has been a fourteen-year long lessons that attacking terrorism with military force both kills extremists and creates new ones. This ignores all the recruits from the West, including Paris, whose poverty is also Western-created through capitalist exploitation and inequality.

Alex Salmond, former first minister of Scotland, had a speech that had its issues, but summed things up well here:

we are being asked to intervene in a bloody civil war of huge complexity, we are being asked to do it without an exit strategy and no reasonable means of saying we are going to make a difference

Good point, Alex.

Journalism is the first rough draft of history

“Journalism is the first rough draft of history.”

This line has over time become a maxim within the industry as a whole. It connects what explains unfolding events with events that have unfolded and must be explained. I thought this quote had an obvious origin in former Washington Post president Philip Graham, however a feature on Slate pointed out that it comes out of the 1940s and has been said by many people in the same era that Philip did.

One news trope that has emerged, most egregiously at Vox, are articles about big issues stating that they are “everything you need to know”. Several red flags come from titles like that. In some cases it comes off as empty swagger; does anybody really think that this article explains everything you need to know about the Israel-Palestine conflict? This attitude about big issues has received criticism (examples here for fairly apolitical and here for a conservative response). When media outlets go big-scale, they run into the maxim: journalism is not equivalent to history, rather they are two points connected within the same space but quite different times.

Vox is a fun site. WonkBlog was a place for very smart people to analyze really dumb, ineffective legislation. In contrast, Vox is more free-flowing and creative. Still, they run into a wall when it comes to big, long-standing issues. What many data-driven news sites attempt to do (538 is another, though narrower in focus) is explain historical issues within the style and vocabulary of news. Any deference to history would see “everything you need to know” stricken from article titles. Israel-Palestine is still unfolding, so is the war on terror and the Eurozone crisis. One thing that history guarantees us is that more significant events are around the corner, and it will take time to see if this news reporting supports or conflicts with prior history.

If there is anything that history teaches us, it is the complexity of events, even those that seem straightforward. Journalism has neither the space nor the context to accommodate deep complexity. News is like soda- produced to exacting standards, each unit identical in quality and makeup. History is wine- full of variation and changing over time. It is important to bring historical context to new events- how else can you understand why ISIS exists, and has gained such power in a few short years? But that’s just a thumbnail. To claim to be comprehensive is dishonest, and stunts the intellectual growth of readers. After all, if Vox really had everything I needed to know about Israel-Palestine, why do any more research on the subject?

The many lies of national mythology

Presently I’m reading How the Scots Invented the Modern World by Arthur Herman. Originally I bought it as a present for my dad, chosen from Barnes & Noble because our symbolic ethnicity is Scottish, and it seemed like an interesting read. He finished it, so I stole it to read on my second trip north towards Canada.

Elaborate traditional opening of the Scottish Parliament.

One interesting aspect of the book is on the dirty, depressing method by which England and Scotland became united in 1707. Scotland, which was mostly out of the colonial game and among the poorest European countries, scraped together a bunch of money for what was called the Darien Scheme. In retrospect it was a terrible idea- it was already well-established that Europeans couldn’t survive in the tropics, the land was unpopulated but claimed by the Spanish, even though it was decades after Jamestown it still had the issues with colonists and cargo not being particularly useful. Scotland tapped out and joined the English rather than attempt to create their own international commerce system.

That’s interesting, particularly in light of the (not terribly likely to pass) independence referendum in six weeks. The origins of modern states are often messy and unpleasant; it’s why the modern concept of the nation was created. Leaders could rewrite history and craft a new, artificial culture. It helps to distract from how many countries, European and former colonies alike, exist due to treaty negotiations. The glorious struggle is often more like the tedious administrative wrangling.

What fascinates me about nationalism is how the recent can become the arcane and sacred in the minds of millions. Almost everyone probably thinks that French has been the dominant language in France for a very long time. After all, it’s called France. But until the last 150 years or so, a vast majority of citizens spoke little to no French.

At the time, French, although an official language, was still little used, even in France. It was the language of the court, the aristocracy and middle class, literature, and academia, but was spoken by fewer than one million out of the 20 million inhabitants of France, or 5% of the population. Given that nobles numbered only about 4,000 at the court, it was the middle class and merchants who, in absolute numbers, spoke French the most. (source)

 

The various languages in France and their extent, 1550 CE.

European history, as taught to me in the main high school textbook, was about how Latin was a language of the church and elite, and the big shift was to vernacular languages. This did happen, but the truth of the matter is that the big modern tongues we think of were far less influential than they are today. In fact, the rise of unified, centralized education was needed to demote languages like Occitan to secondary importance.

Just like how you could say that man made god, man made the nation. Traditionally both religion and nationhood have a sort of holy feeling, and a sense of destiny. In America, there is often a blurring between the Founding Fathers and the Framers as men, or as deities.

If the independence referendum fails, the reasons will go beyond pragmatic economic and political concerns. Part of it will be how a British identity has been fashioned. The marvel of the modern world is not how violent and destructive it is, but how countries that spent most of the last millennium trying to kill each other don’t anymore. For every Yugoslavia, where one identity became many, there are others were a disunited region became one.

What I’m trying to say in the end is that there are many histories. We tend to believe the dominant explanation of the past. That doesn’t mean it’s a good picture. For all its flaws, A People’s History of the United States was an attempt to disrupt the American mythology. Such work may be a sort of inconvenient truth- what ends up in textbooks and classroom lectures usually works, for some group of people.