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.

Mario Cuomo’s one amazing sentence on the death penalty

One of Mario Cuomo's many vetoes of bills to reinstate the death penalty in New York.
One of Mario Cuomo’s many vetoes of bills to reinstate the death penalty in New York.

Mario Cuomo is gone. We are left with a rich legacy, and his loud, hypocritical bully of a son. I was reacquainted with him last year, as Ken Burns uses his young sports dreams as emblematic of New York Italian-American identity in Baseball, which I finally got around to watching. To some extent he has to be compared (and contrasted) with Ted Kennedy. Liberal icons from the Northeast, who could of but did not end of being President. Both were active in a political era characterized by the gutting of labor and welfare. I preferred Cuomo’s personality and he’s my kind of politician. But both are now gone, and the players in American liberalism are relative newcomers.

Cuomo was probably the best high-ranking voice against the death penalty, with about a dozen yearly vetoes of bills introduced to bring back capital punishment in New York. His statement with the 1991 veto is perhaps the best succinct statement of why the death penalty is profoundly wrong:

“The death penalty legitimizes the ultimate act of vengeance in the name of the state, violates fundamental human rights, fuels a mistaken belief by some that justice is being served and demeans those who strive to preserve human life and dignity.”

Couldn’t have said it better myself, Mario.

Sanctions in Cuba: the half-guarded gate

b0871c73c6_caricatura-cuba-embargo-Matt-Wuerker

So the Cold War has ended (twenty-three years ago), and the United States is now looking to a more normal relationship with Cuba. The embargo is still untouched and would require a hostile Congress to fully cast aside. This blog I write is always interested in policy and results. Much like the War on Terror, the stance towards Cuba is a great example of a lot of time and energy invested in something with few positive results.

Joshua Keating points out that sanctions towards Cuba haven’t worked (if we take success as the overthrow of the Castro regime, which was their original purpose), and that sanctions in general don’t have a great success rate.

An issue with the general theory of American policy towards Cuba is that this is not global in scale. Most of the world is willing to take Cuba’s money, their doctors, their disaster aid. The Soviets supported Cuba, then later an ad hoc group led by Venezuela. The Warsaw Pact is long dead but Cuba remains defiantly singing The Internationale.

South Africa, the success story of sanctions, had a bit more complex story, and it doesn’t fit well with the Cuban model. Cuba based their foreign policy in opposition to Western imperialism, so their interest in sanctions by Western nations must be viewed in a sharply different context.

Going into the hypotheticals, the policy runs into some issues. If the idea was to strengthen anti-Castro forces (which America funded, especially in the first few years), how is making the general population poorer, and more dependent on government services going to solve anything? As we saw in Iraq in the 1990s, sanctions hit regular people in a different way than those in power. If anything, the gap between the power of the people and the power of the regime grows.

Cuba has a strange, complex history (though let’s be blunt, the United States during the same people does too). What’s clear is that economic pressure from one superpower cannot succeed if the rest of the world isn’t willing to follow suit. And if regime change is desired, are sanctions against Cuba any more successful than North Korea?

What our wars create: ISIS and the persistence of terrorism

ISIS soldiers celebrate. Credit: AFP/Getty
ISIS soldiers celebrate. Credit: AFP/Getty

A conservative Facebook friend posted a story from the YoungCons website (you know it’s a great right-wing website when one of the top results is “is this site satire?”) about the battle of civilizations- America vs. Islamic fundamentalism. It suggested that the US take after Jefferson and his war against the pirates in Tripoli- use force against these Islamic powers, and don’t back down, surrender, or be held for ransom. Those three things being what the Obama administration is currently doing re: ISIS. Apparently.

Here was my reply, and a reply against the US policy in the Middle East since 9/11:

Islamic fundamentalism post-dates Jefferson. It is a creation in response to colonialism and perpetuated by Western anti-terror actions that lead to far more civilian casualties than militant ones.

We’ve been actively killing people in the Middle East for thirteen years and radical fundamentalism is stronger than ever. A secular leader in Iraq was overthrown, the armed forces disbanded, and a Sunni insurgency created by former officers let loose with their training and weapons. The strongest terror-backed entity is using American weapons to massacre civilians.

So when is America going to bomb the Islamic world into prosperity and peace? Or perhaps basic history shows that’s not the case, and we’re actually fighting a war against groups that would not exist without the weapons and instability from Land of the Free, Home of the Brave, the United States of America.

Now please note that I am not a Hussein apologist, but we need to be honest and see what the early-stage plan in Iraq was, and how in toppling one dictator we sowed the seeds for others to come.

ISIS with captured tank
ISIS with captured tank

With ISIS, we must stop the ongoing nationwide amnesia about the two main wars fought with 9/11 as justification, and confront the new, post-Coalition Iraq. Any additional use of force in the region has to be weighed against what has happened with past uses of force. ISIS may not be a direct creation of the United States (with an assist from early 20th century France and Britain), but its current structure and power is related to US actions, and the War on Terror philosophy that terrorism must be stomped out using overwhelming force.

This is a terror group which is now confirmed to have access to chemical weapons. Just this week another Iraqi Army base was overrun, giving ISIS access to huge amounts of US-provided weapons and transportation.

The biggest discussion since 9/11 that nobody in the government or national media doesn’t want to have is a huge one: what it terrorism, and how is it persisting despite sanctions and military action? Central to this indefinite War is the justification of force without the analysis of its consequences. The Sunni insurgency comes from how the initial invasion of Iraq was manage, and how the Shi’ite and Sunni constituencies have their own paramilitary groups that can act independently of governmental authority. ISIS is a product of dysfunction, and there is no way to remove Coalition action from that dynamic.

Patriotism is a cheap word these days. Only brash, simple action can be patriotic, and dissent is met with ambivalence, if not outright hostility. No matter what ideology you subscribe to, what the United States does or does not do in the Middle East has a body count attached to it. Its size is important, as well as how we take responsibility for collateral damage, if at all.

Obstruction by design

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One of the great tropes of American politics is the ineptitude of Congress. In particular, great amounts of journalistic ink have been devoted to gridlock in the U.S. Senate. The headline is always correct- the Senate is dysfunctional and no expertise is needed to see that. But I think there are some poor assumptions made when people talk about the Senate. Here are two:

  • Senate legislative gridlock is new. It’s really not. Important legislation has passed the House only to die in the Senate since the birth of the Republic. In particular, the first half of the 19th century went from crisis to crisis, as while the South had a much lower population than the North, they were given an equal number of senators.
  • Senate rejection of treaties is new. The US has signed many treaties but often does not ratify them. UN treaties are some of the most well-known, such as the Kyoto Protocol and more recently the UN  Convention on the Rights of Persons with Disabilities, which failed two years ago. This predates the UN, as the United States, who proposed the League of Nations but did not become a member due to Senate opposition.

Both segue into my main point- the Senate is an inherently obstructive institution. That is why it exists. Its flaws are not borne of modern political culture but just the latest decoration. Not only is the Senate by nature obstructive, I would say that almost all upper houses in parliaments and congresses are obstructive. By nature the elections for the upper body are not rooted in proportionality- many bodies like the German Budesrat have an artificially small gap between tiny regions and huge ones. In cases like the United Kingdom’s House of Lords, the members aren’t elected at all, and their modern power is purely to delay and obstruct legislation.

The deification of the Founding Fathers, and the subsequent Framers, needs an injection of the political reality they crafted. The Connecticut Compromise gets applause as a brilliant piece of union-saving policy work, but it dictated a system where the rights of the minority could hold up nearly every vital government function. This ‘minority’ is often abstract, usually given a very virtuous portrait. Currently that minority is often a group of small-minded politicians, who by virtue of the Senate system do not need to explain their actions or defend their conduct. In the past that minority was representatives of slave power, who killed actions to limit the spread of slavery using the power given to them, even when they were strongly outnumbered by free-state residents.

Media outlets and individuals bemoan terrible Congressional approval ratings, and how little is done in the Senate in particular. This should not be surprising. American government is a blueprint for obstruction.

Free nations don’t vote. Why? And is it important they do?

Why do the the most politically free countries have an electorate uninterested in the idea of democratic elections?

It’s a dynamic I’ve been wrestling with for almost a year now. I have my own theories, and a pretty good idea of how to conduct some empirical investigation, but it demands attention. After all, political science is devoted in large part to the nature and process of democracy. In a US college, the three fundamental courses are American politics (tracing the evolution of one country’s democracy), comparative politics (gauging relative democratic strength over distance), and international relations (analyzing the issues of pan-national government). The inherent slant is that democracy is the best way to run a country. A key consideration is what makes a good form of government. How do you compare?

In this list (PDF) ranking political freedom by Freedom House (score from 1-7, low scores are better), you can see a country like Switzerland that gets the best possible rating. But like most other countries with a sterling reputation, there is a very familiar graph:

Source: SFSO, political statistics.

It’s far from unique. Canada has a trend- a drop of about twenty points since the sixties. US presidential elections are a much longer-term story- the years of Canada-like turnout were a century ago. At its nadir in 1996, less than half of the voting age population cast a ballot. This was also strange given another trend shown in the link- voter registration is making better inroads, so more people were able to vote but did not choose to.

Election turnout in Canada since 1962

Why? One blogger suggests it’s linked to the creep of corruption in developed nations, and an erosion of popular faith in the process. But the actual damage to the election process itself is often minimal- in the 21st century the EU, Japan, and others are not throwing elections. The consensus is that the election results, if not representative of the public’s political views, are at least show the correct results given those that did vote.

With that it would seem that it’s not the simple fear that one’s ballot will just end up in a shredder somewhere. The issues start long before someone thinks about whether to vote this election cycle. Stephen Colbert once wrote in America: The Book that an individual voter’s influence could be compared to the size of a deer tick to the Asian landmass. Humans prefer to see their actions having tangible consequences. It’s understandable.

Also many of these nations that score well in political freedom also score high in transparency. On the objective measures, Switzerland scores very highly, but even there public opinion shows a majority think their anti-corruption efforts are ineffective.

A theory I forward is the idea of democratic fatigue. That is, that participation will decline over time as a stable democracy matures. Perhaps the US has such a long-term decline because its elections have been free (for at least some of the populations) for well over a century now. Abundant data exists for the new clutch of democracies carved out of the USSR- hopefully over time they will show us how participation changes in places where democracy emerged only in the last decade of the 20th century.

Why democratic fatigue? I posit that a very well-run nation will eventually lose the attention of the public. A comparison: when an employee you are supervising is new and learning, you watch them very closely and intently. As time goes on and their body of work shows quality, you stop paying so much attention. At some point, you eventually hand them the keys and tell them to lock up. They can do this job on their own.

If Switzerland has high economic growth, a good environmental record, and high levels of happiness, why would elections have huge, universal importance? Besides making sure a party of nutters doesn’t seize control, good results mean less and less scrutiny. Certainly high corruption would alienate people, but very low corruption doesn’t catalyze a nation to be active in politics.

In a long-running democracy the point of comparison changes. To an American, the point of comparison isn’t the tyranny of King George III, it’s another era of democratic elections and similar turnout. A middle-aged person from Estonia, or Poland would remember when there were no free elections, a foreign power had final say on any decisions, and complaining about corruption wasn’t a luxury people had. As more of the population loses that point of comparison, the sense of complacency grows. Perhaps entropy means all countries end up tailing off- more or less depending on where participation peaked, but a constant state.

And of course, the question must be- is participation essential for democracy? It seems obvious given the name, but high participation doesn’t seem to correlate that high with good government, at least in developed democracies. Italians vote in very high numbers given the context, but they are also the poster child for corruption in the EU. And if turnout is important to democracy, how does it increase, given that the current political systems do not seem to mandate or encourage it.