Monday, November 28, 2016

Can We Have A Constitutional Society?

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Preamble to the United States Constitution 

These words are perhaps the most famous words in all of political history--certainly in all of American history--and deservedly so. With this single sentence, America's Founding Fathers renewed their belief in a simple premise: political power flows from people into their government. With this single sentence, America's Founding Fathers reminded the world of Thomas Jefferson's stirring pronouncement from the Declaration of Independence, that "...Governments are instituted among Men, deriving their just powers from the consent of the governed...."

Much has been written, and much will continue to be written, about how best to apply these words, and the words of the Constitution that follow, to the government of the United States. That is a worthy debate and one that should never cease.

Yet it is not the only debate we can have, and I submit it is not the only debate we should have. People, be they in America or in any other country, regardless of ethnicity, never merely form governments. "We the People" form also societies. "We the People" also form communities. Justice, tranquility, safety, and prosperity are not merely the attributes of good government, but even more so they are the attributes of good society, and of healthy and vibrant communities. The rights of people are not merely a matter of government, but are an essential element of every human interaction. What else are simple manners and courtesies if not defenses of the most basic of liberties, simple respect?

As rights and responsibilities transcend government and are part of the essential fabric of ordinary living, might we then view a document such as the Constitution as not merely a blueprint for just and ethical government, but also a blueprint for a just an ethical society? Might the defenses of liberty enshrined in the Constitution guide not only government action but also personal action? Might the distribution of government powers mandated by the Constitution also serve as a guide for how our private business and social structures might be wisely and justly organized? 

I believe this to be true.

As the Preamble to the Constitution makes clear, people are eternally striving to improve the world in which we live. We constantly desire a more just government, we constantly seek a more humane and equitable society. However we articulate it, if there is one desire shared by all people it is the desire for things to be somehow "better". We see this in protest movements, we see this in political rallies, we see this in the fulminations and rampant rantings in social media and elsewhere. The constant quest for improvement is the ultimate order of all human society.

Thus, the Constitution is not merely the supreme law of the United States. It is not merely a blueprint for government. It is a blueprint for a potential social order. The Preamble to the Constitution speaks not of a more perfect government, but of a more perfect Union--it acknowledges our constant quest for justice in all parts of life, not merely the political. Why not look to it for guidance in realms beyond the political?

The Constitution places restrictions upon the powers of government, and reserves through the Ninth and Tenth Amendments all other rights and powers either to the American people or to the several states. Is this so different from the "empowerment" of which management gurus and life coaches everywhere speak so blithely? Is this not an expression of a larger principle, that authority should be given sparingly, used sparingly, and kept within carefully defined boundaries, leaving people the freedom without to explore the world as best they see fit? 

The First Amendment bars the Congress from inhibiting the right of people to speak freely, worship freely, assemble peaceably.  Is it not common courtesy and etiquette to listen to one another and to refrain from inhibiting others' capacity to speak, worship, and gather with friends?

The Fourth Amendment bars against unwarranted searches. Is it not basic human respect to refrain from intruding upon another's privacy without serious cause?

The Eighth Amendment bars cruel and unusual punishments. Is it not essential to good parenting, or sound business management, to be measured and proportionate when responding to bad behavior? 

As regards the government, the Constitution has the force of law. Every act of Congress, every act of the President, must conform to the strictures of the Constitution. Among private citizens, there is no absolute requirement to respecting free speech, free assembly, or privacy. The Constitution does not bind us in our personal interactions with each other. That does not mean that precepts of behavior laid out in the Constitution are meaningless. It merely means they are "a good idea" as opposed to being mandatory.

These precepts are, in fact, very much a good idea. They deserve to be celebrated, they deserve to be upheld and uplifted. They deserve to be discussed, not merely now and again, but now and often. How we come together in our communities, how we come together as a people, is a discussion in which we all should participate, and should all have a voice. If two centuries of this grand experiment proves anything it is that the Constitution is not the end of that discussion, but rather the beginning.

I pray that discussion, once started, will never end.

Sunday, November 27, 2016

Can we please read the Constitution accurately?

The core of the right to free speech is that each of us deserves to be heard. Basic human respect requires we take the time to listen and reflect upon our several opinions.

However, basic self-respect requires that when, upon reflection, we realize that what someone has said is complete and utter nonsense, we state--plainly, bluntly, unequivocally--that it is complete and utter nonsense.

Consider this bit of balderdash from Lawrence Lessig, Harvard Law School professor and lawyer of some renown:
Conventional wisdom tells us that the electoral college requires that the person who lost the popular vote this year must nonetheless become our president. That view is an insult to our framers. It is compelled by nothing in our Constitution. It should be rejected by anyone with any understanding of our democratic traditions  — most important, the electors themselves.
What makes this seemingly reasonably phrased paragraph balderdash? Upon inspection, quite a few things.

The most glaring error is a rather unforgivable error of fact--namely, that a popular vote for the nation's Chief Executive is somehow within the Constitutional order of things. It is not. The text of the Constitution flatly contradicts this idea, 

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
This particular clause of the Constitution has never been amended. The Clause 3 of Article II, Section 1, was rewritten by the Twelfth Amendment, and Clause 6 by Amendments Twenty and Twenty-Five, but that is the extent to which Article II--which governs the office of the President--has been modified from the original text.

This particular clause is clear and unmistakable in its language: The states, acting principally through the agency of their respective legislatures, select Electors, who in turn cast their votes for President and Vice-President of the United States. Nothing in the Constitution requires that any state hold a popular vote as part of the selection process--and the historical fact is that in the Presidential elections of 1788-1789 and 1792, only six states held a popular vote of any kind. The remaining states appointed their electors via the legislature.

While the popular vote method of choosing electors has become ubiquitous throughout the Republic, it very much remains at the discretion of state legislatures--and in theory a state could abandon the popular vote mechanism at any time through a simple act of the legislature. Professor Lessig is factually in error when he speaks of a monolithic "popular vote" and factually in error again when he suggests that the Constitution is silent on the matter. The Constitution is explicit on how a President is elected: States elect the President.

Professor Lessig is also therefore guilty of an egregious error of logic when he states that an Electoral College outcome that is at odds with a nationwide amalgamation of state popular votes is somehow an insult to the framers of the Constitution. The framers of the Constitution did not assign the election of the President to "the people", but to the states, and further very explicitly called upon state legislatures to decide the particulars of each state's process for appointing Electors. The nationwide vote total is legally, politically, and historically irrelevant. Surely Professor Lessig knows this--for surely anyone who reads the Constitution can see this (one hopes that the Constitution is still taught in Harvard Law School).

Professor Lessig is also guilty of erroneous historical statement when he speaks of the operation of the Electoral College being at odds with our historical traditions. The earliest historical tradition of American governance is that the Constitution defers to state legislatures in the selection of Presidents and Senators (South Carolina did not hold popular votes until after the Civil War).

Debunking Lessig's thesis takes but a few moments of perusing the text of the Constitution--and the Constitution fully and flatly rejects Professor Lessig's thesis in its entirety. Simply put, he is wrong.

Professor Lessig is entitled to his opinion. He deserves a chance to be heard. The First Amendment and basic decency demand of us no less than this. But honesty, intellectual integrity, and that same basic decency demand of him--and of all of us--that we at least ensure our statements of fact are accurate, that our logic is sound, that our reasoning sober and grounded. Professor Lessig has failed in all these respects, and while he retains his right of free speech, he retains also the right to be ridiculed for being foolish. That is precisely what his thesis is: foolish. There is no Constitutional foundation for any of it, nor for the trope of a national popular vote in the election of the American President.

As important as discussion and debate over the merits and demerits of our electoral system are, the one absolute imperative upon everyone--and in particular lawyers and professors of law such as Lawrence Lessig--is that we read the text of the Constitution accurately.