an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Common Cause in sponsoring a national petition drive under the name "Recapture the Flag." The aim is to encourage citizens to
demand a President and Congress that believe in the Constitution, the rule of law and justice for all! . . . . We've asked every congressional and presidential candidate to make five simple promises:
• End torture, respect human rights and restore America’s reputation in the world.
• Respect the rule of law and fiercely challenge anyone who seeks to undermine the Constitution and the Bill of Rights.
• Root out corruption, special interest abuses and partisan prejudice in the administration of justice.
• Hold to account – without exception – anyone who breaks the law or violates the public trust.
• Protect personal freedom by rejecting warrantless spying and other affronts to individual liberty.
These seem like fine aims, and it is no doubt churlish to offer any criticism at all. But regular readers will not be surprised to learn that I'm not entirely happy with the promise to "fiercely challenge anyone who seeks to undermine the Constitution." I am ever more convinced, to paraphrase Philip Larkin's well-known poem about "mum and dad," that the Framers "fuck[ed us] up . . . . They may not [have meant] to, but they [did]." And the most important way we are fucked up is the mindless reverence for the Constitution instantiated in the Common Cause ad. One should obviously fight the undermining of those parts of the Constitution that deserve our devotion, but it would be bracing if the folks at Common Cause recognize that the Constitution itself contributes to the fact "that today our democracy is indeed in distress" by our inability, for example, to get rid of a dangerously deluded President (who will, of course, have all of the legal powers of the presidency at his disposal until January 20, 2009, whatever the verdict of the American people in November 2008).
None of you need reply with encomia to our Constitution. We've been through that exchange enough times. This is simply one last venting before I leave from Australia tomorrow morning and thus absent myself from the blogosphere for at least three weeks. Posted
by Sandy Levinson [link]
I would appreciate it if someone would explain to me what exactly is being referred by the word "constitution" in that and other sentences, such as those in oaths taken by numerous government officials, lawyers and others. What does it mean to "defend the constitution?"
I have some ideas, but am interested to hear how others understand it in an oath, e.g. the following oaths of the federal judiciary. The first makes sense, but the second is at least extremely abstract:
I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.
The second oath that federal judges must take is this::
I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; ... So help me God.
I would assume it would refer to the legal document that actually got ratified by the states, rather than merely the judicial gloss on it, since if the judicial oath were held to refer to the latter, it would be an empty tautology.
Sandy, enjoy your venting, but that reverence you regret DOES exist. You'd be better off venting against the political culture that has grown up to circumvent what actually is a fairly good constitution: I don't believe any reverence attaches to THAT outside of Washington, aspiring to change IT isn't tilting at windmills.
Suppose I propose to abolish the Electoral College, an important part of the Constitution to its framers. Is this an attack on it? What's the difference with an amendment that formally removed war-making authority from the Congress, on the same argument of obsolescence? There must be a Platonic American Constitution, distinct from the paper document, corresponding to the uncodified British constitution. The Platonic Constitution includes the Bill of Rights and the 14th Amendment, but what else?
Suppose I propose to abolish the Electoral College, an important part of the Constitution to its framers. Is this an attack on it? What's the difference with an amendment that formally removed war-making authority from the Congress, on the same argument of obsolescence? There must be a Platonic American Constitution, distinct from the paper document, corresponding to the uncodified British constitution. It clearly includes the Bill of Rights sand th e14th Amendment, but what else?
I wouldn't call attempting to repeal the electoral college an attack on the Constitution. The Constitution does, after all, have provisions for amendment, and using them can't really be regarded as an attack, though in some instances it might be a really bad idea.
Now, attempting to circumvent the electoral college, as by this recent (And I suspect hilariously doomed.) "compact" effort, that can reasonably be considered an attack. since it represents an effort to rob some provision of the Constitution of effect without benefit of amendment.
Right, I think the distinction between amendment and "good idea" is important. We've certainly had amendments in the past that were less than great ideas (I'm looking at you, 18th Amendment!).
Similarly, some attempts to circumvent the constitution may involve really good ideas, but if they don't follow the proper channels, something is definitely wrong with the political process. One isn't undermining the government's ability to fight terrorism if one insists that the government play by the rules--this is the one point I wish certain groups of people could internalize.
Overall, I think Sandy's sensitivity to the sanctity of the Constitution may be exaggerated, since his notions of repairing the Constitution are not anathema to the document itself. Still, it would be foolish to think that everyone who is fervent about the sanctity of the Constitution is as open to drastic modification as Sandy seems to be, and that resistance must be frustrating over the long term.
I'd certainly agree that the Constitution could use some revisions, and maybe some of Sandy's less extreme proposals would be a good idea. My problem with him has always been what I view as his tendency to attribute problems with our political culture to a document which, at this point, is being honored as much in the breach as directly. We'd have to actually be following the Constitution for it to be responsible for our current difficulties.
The Constitution itself has unnecessarily fluffy language that invites interpretation. This in first superficial view may seem to be a bad thing, as those in power are subject to interpret it differently than intended. But then again, if one were to remove the ability to interpret it, then those in power can more easily amend it to rip away your freedoms without question and without the need for Judicial review.
What I dislike about the majority of those who think the Constitution should be redone is that they blame a document for their woes when that document clearly puts all the power IN THEIR HANDS... meaning all of us, collectively. Stop whining about the Constitution and start working with everyone else to get it back to functionality.
In a way, I don't feel sorry for the American public (which is hard, because I am an American citizen myself), because they allowed themselves to become so apathetic and Co-Dependent upon their corporate slave masters, and their shills of lawmakers, that they forget what personal and communal responsibility is. Freedom is to be on constant guard against those who oppress... and we have fallen asleep at the wheel! Blame the Constitution for that? ummm, no. Blame our parents and grandparents for their doped-up, dogged apathy and dependence on the TV to tell them the truth? HELL YES. Do something about it? FOR THE LOVE OF GOD, TRY! Don't sit and whine about the only thing that gave you rights in the first place, put the power to uphold it back in your hands. If our country is so frigging great, why are al the people such defeatist cowards with pent up angst for inanimate objects?
Oh yeah, and there is a way to get rid of an authoritarian president who defies the Rule of Law, and betrays the People. A) Impeachment, B) REVOLUTION.
People call Pelosi a coward for keeping impeachment off the table, but you obviously have no guts for glory, Revolution is certainly off the table for you, that is inherent in your dissertation. And THAT is partly why no one in Washington cares about the opinions of us whiney citizens. because we've been drugged by TV, commercial materialism for its own sake, and chemicals into superficiality, lack of conviction, and mindless fear of standing up for yourself.