law – Unspoken Politics

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.

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

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.

Live free, die free

A new feature was added to Facebook this week- the ‘legacy contact’. For the first time, the site will allow users to designate someone to formally manage your profile after you die- including a pinned post with key information.

In some sense, this is a new sort of civil right- we have traditionally had rights on how we live, but not how we die. Aid in dying has suddenly gained more widespread acceptance, including a potentially key legislative debate in California, after always being a fringe social movement. From legal changes to more informal recognition by institutions like Facebook, society’s sense of freedom is changing. The 20th century was full of landmark changes in the concept of rights and what a free society should look like. And even though the 21st has had serious conflicts over civil liberties, the debate continues to expand.

Short laws don’t fit complex societies

Sen. McConnell next to his claimed mountain of ACA regulations. (Nicolas Kamm/AFP/Getty)

Every so often someone, somewhere proposes a constitutional amendment requiring laws to be as simple as possible, and as short as possible. It’s part of the long tradition of suspicion towards bureaucracy. Why is the budget the size of three phone books? Why can’t Congress just get down to the core of it? Tea Party groups and other small-government conservatives often take hardline stances towards making government more common sense, often by taking a howitzer to the various agencies that seem to make stuff complicated. Each Republican presidential primary is a smorgasbord of tax plans, each aimed at hacking the IRS down to a skeleton crew.

The issue is that government of any size is incredibly complex. Any large institution is- look at the metric tons of paperwork produced by a sizable corporation. Large bills like the Affordable Care Act are not the norm, but they are common. Over three hundred million people live in the United States, who then interact with everyone else on Earth. Even the simplest ideas, those common sense two page proposals, will gain weight as it is connected into the legal system.

Ultimately the task state and federal governments have is not to make their laws briefer or in much simpler language, but making the scope and purpose of a law coherent. Most of a long bill’s paperwork, or tax regulation, is the legal machine code created by a dedicated battalion of lawyers. The specifics of those U.S. code alterations are not important, rather the public needs to grasp what their practical effect will be, and what principle is guiding their use. Doing the paper stunt, where politicians show how giant a given bill can be, is just that- a stunt.

Many ideologies attempt to simplify society, but society refuses easy guidelines. It is monstrously complicated because people are different in a million tiny little ways. I expect solutions to societal problems will be complicated. They just need to be sufficiently graspable.