Should we be required to rewrite the constitution?
The Washington Post has an interesting article about a constitutional requirement in 14 states according to which voters must decide at least once a generation whether or not to rewrite the constitution. The provision goes back to the founding of the nation and the idea that in a democracy, it is healthy to not just allow but to actively encourage citizens to rethink the constitutional underpinnings of the state. In fact, Thomas Jefferson claimed that laws naturally expire after 19 years. Writing to James Madison, he said “The earth belongs always to the living generation… If [the constitution] be enforced longer [than 19 years], it is an act of force and not of right.”
In Maryland, the focus of the article, opponents of a constitutional convention claim that the state runs just fine on its current constitution and a convention would be a time and money drain on state lawmakers, with special interests inevitably influencing the process. Some proponents, on the other hand, say that a constitutional convention would invigorate democratic citizenship: “People should be concerned about what the Constitution says and what it means,” Edward C. Papenfuse, Maryland’s state archivist said. “The whole central issue of democracy is paying attention to the body [ ] of what constitutes our government. And I think one of the problems that we have today is that we do not pay enough attention to the structure of government . . . or what the framework should be.”
This whole idea of a mandatory generational constitutional convention is new to me and entirely intriguing. So what do you think? Should we be required to occasionally rewrite the constitution? Or are our politics too polarized and special interest-driven for this to be a beneficial exercise? Maybe the original constitution is as timeless a document as we could hope. But wouldn’t it be fun to dress in wigs and period clothing and speak in Aristocratic accents while using words like “tis” and “whilst”?
-Marc
Photo by Flickr user Phil Scoville used under a Creative Commons Attribution license.
The challenge of social science in constitutional interpretation and public policy
Or: how I learned to stop worrying and love the gun
On Monday, the Supreme Court’s majority decision in McDonald v. Chicago affirmed, with some qualifications, that the individual right to bear arms may not be infringed by state or local governments. Was the Court’s decision appropriate? Does the right to bear arms deserve the same special consideration as other civil liberties, such as free speech, assembly, religion, and due process?
Two possible approaches to this constitutional question are the originalist and consequentialist ones. Originalists probe the texts of the Framers of the constitution and their contemporaries for textual evidence favoring or opposing giving such equal standing to the Second Amendment, while consequentialists are more representative of “living” constitutionalism and examine the empirical impact of gun policy on crime, domestic violence, and accidents.
Both approaches face problems. Read more
The world court
When is it appropriate for American courts to reference foreign law?
The other day Jake posted on the Supreme Court ruling that teenagers cannot be sentenced to life in prison for non-homicide crimes. In his majority opinion, Justice Anthony Kennedy referenced the consensus in the international community against such punishments:
There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.
In other recent decisions outlawing the death penalty for juveniles and overturning laws prohibiting sodomy the court has also referenced international law. These cases raise an interesting question, what role, if any, should the opinions of foreign nations play in our constitutional interpretation? Read more
Political amateurs
Gordon Wood, professor of history, has a great piece in NYT that debunks a strangely attractive populist myth: that it’s somehow “career politicians” that cause the country’s problems, and if they were all replaced with socially popular salt-of-the-earth types (farmer, small business owner, fireman) the country would be better off. Wood demonstrates that, contrary to the popular fantasy, America’s founders were incredibly experienced statesmen.
His most interesting conclusion is that it was this experience that led to the success of the American Revolution compared to the decades of violance and strife that characterized the French Revolution.
-John
Mt. Vernon Statement
The confusion of conservative fusionism
Here’s my oped on the Mount Vernon Statement in the Christian Science Monitor:
Have you heard the one where Ron Paul, Pat Robertson, and John Bolton walk into a bar? According to the “Mount Vernon Statement,” the declaration of first principles signed yesterday at part of George Washington’s estate by conservatives of varied persuasions, the punch line would be “Constitutional conservativism.” Led by Edwin Meese, President Reagan’s attorney general, the collection of prominent economic, social, and “national security” conservatives aimed to clarify and recommit themselves to conservativism’s bedrock political philosophy.
They modeled the project self-consciously on the 1960 Sharon Statement that ushered in “new conservativism” when the Young Americans for Freedom signed it at William F. Buckley Jr.’s estate in Sharon, Conn. Like those young activists, Frank Meyer’s and Mr. Buckley’s vision of a theory able to “fuse” disparate American conservative ideologies inspired Meese and Co. The resulting mix of pabulum, historical revisionism, and internal inconsistency sheds light on enduring and contemporary tensions within American conservativism.
First, their argument. The main nugget of “Constitutional conservatism” is that America needs to return to the “limited government based on the rule of law” ideals of the Founders, who “sought to secure national independence, provide for economic opportunity, establish true religious liberty and maintain a flourishing society of republican self-government.”
What the Framers intended
After watching this humorous video on the diversity of opinion among members of the same religion, I got to thinking about how such a phenomenon applies more broadly to philosophy.
It’s true that in a medium like religious faith, it’s near impossible to tell who’s interpreting the moral, political, and historical claims of a particular tradition correctly. God tends, suspiciously, to agree with all of our personal opinions.
The same can be said for America’s Framers. Our nation is home to a wide variety of political philosophies, and I’d bet you would be hard-pressed to find many that don’t claim the Framers as tacit supporters. There’s a conservative Christian movement in Texas right now that aims to alter school curriculum and textbooks in order to teach children the true intent of the Founding Fathers – to create a strong, Christian nation that would carry out Jesus’s mandate on Earth. Meanwhile, Christopher Hitchens insists that the Founders were Enlightenment Deists, committed only to a vague, secularized spirituality and interested in avoiding the interference of religion with politics, science, and ethics.
The “American Tradition,” like its religious counterparts, is as contested as it is loved.
-Colin
The morality of bipartisanship
Pragmatism, Legitimacy, and Fraternity
Pres. Obama promised and thus far has failed to bring bipartisanship to Washington, D.C. Today he renewed the effort by attending a gathering of House Republicans.
Few, if any leaders contest bipartisanship’s value. It is one of those “golden” concepts of American politics, which Sam–our resident political consultant–can maybe tell us more about. What values, though, does it embody or further?
1. Pragmatism
To the extent that a proposed bill has value, it’s passage is a good thing. If one party does not have sufficient votes to enact a valuable bill without the other’s support, bipartisanship enables the bill’s passage. In this case, the value of bipartisanship is extrinsic or consequentialist, depending on the value of the law it enables, rather than inherent to the concept itself. It prevents legislative gridlock. One concern is that it requires watering down legislation to ensure it passes. But passing a decent law is better than not passing a supposedly perfect law. Bipartisanship gets the job done.
2. Legitimacy
The founders and the filibuster
Thomas Geoghegan writes a great op-ed in the NYT arguing that the filibuster “is, at worst, unconstitutional and, at best, at odds with the founders’ intent.”
-Jake
Trouble in Asheville
What is the destiny of antiquated, illiberal constitutional provisions?
A classic church/state conflict is playing out in Asheville, North Carolina. Cecil Bothwell, an atheist, was recently elected and sworn in as city councilman. A small number of his critics have plans to file suit on the basis of a provision in the North Carolina constitution, drafted in 1868, declaring that officeholders shall be disqualified if they “deny the being of Almighty God.”
The legalities of the case are not particularly interesting or controversial. The provision is clearly unconstitutional on the basis of past Supreme Court rulings. (The WSJ law blog agrees, saying that the provision “absolutely” violates the US Constitution). The strength of the opposition can be seen if, as a commenter on WSJ suggest, one googles the man filing the suit, H.K. Edgerton, and sees Mr. Edgerton, an African American, parading in a Confederate uniform with the Confederate flag.
What is much more interesting is considering the fate of the North Carolina constitutional provision, which joins 6 other states in technically excluding atheists from office. What is at stake here?
The case for not removing anti-atheist constitutional provisions might include the following arguments:
- Since the provisions are not enforced, expunging them is not worthwhile given the costs involved in amending state constitutions
- Such provisions represent widely-held commitments among the electorate while doing little practical harm to atheists. The provisions are akin to passing a resolution honoring Christmas or praising local missionaries
- There may well be a possibility that the effort to expunge the provisions would actually fail, as either a public initiative in majority-Christian states or as a question to state representative bodies, who have little to gain and much to lose by opposing the provisions
The case for removing the provisions seems skimpy in comparison:
- The provision is unconstitutional (but this itself causes little real harm)
- It is philosophically indefensible
It seems highly likely, then, that these provisions will continue to exist. They remind us that, although non-believers enjoy legal protections, they do so in a system where it’s clear that many people still bring significant religious commitments to the private sphere and that a certain percentage, certainly lower, would discredit and disqualify atheists if they could. Mr. Bothwell’s election reminds us that while we live in an increasingly small-l liberal world, vigilance is necessary to maintain liberalism in the public sphere.
-John
Secularizing the calendar!?
The latest controversy to emerge at the intersection of public schools and Christianity concerns our dating system. A movement in my old school district is protesting the use of BCE / CE (instead of BC / AD) to teach kids about dates in history. “Before the Common Era” and “Common Era” are less offensive to non-Christians than “Before Christ” and “Anno Domini,” which is Latin for “in the year of the Lord.”
But there’s just no getting around the fact that BCE / CE are simply secularized labels referring to Christ’s suggested birth date. We shouldn’t feel too guilty about that, however, because most calendars are built around some otherwise arbitrary date of particular cultural importance.
We’re probably stuck with the date, but should we be stuck with the religious trappings? Like so many of these controversies, from school prayer, “under God” in the Pledge of Allegiance, “In God We Trust” on our currency, creationism in biology class, and the annual “War on Christmas,” the arguments are couched in language of cultural heritage – this has always been a Christian nation, so it goes, and efforts to “secularize” its institutions are either paternalistic or morally destabilizing.
Those in favor of church-state separation usually counter that in a society of many faiths and traditions, public representations of a particular faith must either be removed, like religious displays in courthouses, or secularized when useful for publicly justifiable reasons – like Christmas or having Sundays off. Regardless of our historical legacy (which is decidedly more complicated than most allow), liberals must weigh matters of cultural importance against the heavy counterweights of free conscience, association, and equal treatment.
-Colin
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