Our Constitution is Broken: Part I

I have put forth a fairly radical thesis: Namely, that our Constitution is broken and needs to be modernized. Not a small revision either; a pretty thorough modernization. Our Constitution - drafted in the late 18th century - reads a bit like the bible to me: Just as the bible reads like a bronze-age document; our Constitution reads like a pre-industrial, late 18th century document. They're both really impressive, making real progress on some of the stickiest issues of justice, but they're obviously outdated. 

But the problem with my broken-constitution theory is that it's just so hard to explain. I mean you kind of have to start at the beginning: What's the purpose of a constitution? How can you explain it's broken without showing that it's not supposed to produce a tyranny. And then you have to show we're a tyranny. And it goes from there.

I mean I guess the other approach is to show how, in particular, our Constitution isn't modernized. I've been thinking a lot about war powers. Our Constitution only considered two possible scenarios: civil war and attack by a state. And the rules for these two are different: You can suspend habeas corpus in the event of civil war. But what I've been thinking about today, is this: 1) Our Constitution covered foreign policy; and 2) our Constitution's foreign policy is isolationism. As soon as we - as a society - rejected isolationism, the Constitution has no rules. It's suppose to cover foreign policy, but it didn't anticipate an interventionist foreign policy. Thus, we have no constitutional checks on pretty much all of our wars and it shows. Like Vietnam being a police action and not a declared war - that looks like you have a hole in your Constitution. It looks like the war version of off-shore tax shelters. And we have lots of them: black-site torturing, getting corporations to do unconstitutional things, getting other nations to do unconstitutional things. As a lawyer, those look like legislative holes. They happen when situations change. It's hard to make a really tight law and no one has a crystal ball. We need to close all of those holes. We need rules for intervention; we need to get rid of these end runs through corporations and other nations. It's not just economic matters that need modernized.

I've been thinking a lot about the Greeks. You know, what was going on is that they had stumbled onto science. There were pre-Socratic philosophers (like Heraclitus) who were approaching things scientifically. It was just this amazing tool; this method of approaching problems. They had this method of coming up with good answers to problems. The capacity is part of human nature, but the method and the systematization of the method... well, it's hard to beat the Greeks. And why is that? I've always wondered that: Why, all of a sudden, do people make a bunch of progress on particular questions? And part must be the discovery of this very powerful method. But I think there's something else: I think there's a historical reason people start to look hard at particular questions. For example, the Copernican revolution: What was going on is that they were figuring out the laws of motion. And once you understand a bit about motion, the Ptolemaic system is clearly wrong. The Ptolemaic system shows a retrograde motion of Mars; Mars is going along in its orbit, reverses direction, then reverses direction again. And that just cannot happen once they knew about motion. They KNEW it was wrong. So, all of a sudden, they're thinking about that question. Copernicus makes the first big breakthrough: Perhaps the Earth and planets revolve around the Sun? But he had circular orbits and it didn't work as well as the Ptolemaic system (as a practical matter). So, why not discard it then? It doesn't work as well. Well, because they KNEW the Ptolemaic system was wrong. Then, Keplar figured out eliptical orbits and it was over for the Ptolemaic system. What focused the Greeks?

I think - like me - they saw their society (Athens) was going down. Both Socrates and Plato were pretty obsessed with the question of justice. Well, what is justice? Lots of historical runs at that question (and with different results). But I think we can think of it more practically (perhaps sometimes working from a process of elimination of what justice is not). The law - my profession - must be very practical in this way. I mean there's an actual dispute and someone is claiming an injustice. You have to solve it. Now. It's like an empirical study of justice, where you build up a system of justice dispute by dispute. Anyway, I think if we look at Socrates more practically, what he saw was this: We're making bad decisions and because we're making bad decisions we're going to go down. 

It gets interesting here because the question of The Republic is: What is Justice? There are several possible answers given and quickly rejected, but then Thrasymachus gives an answer at the end of Book I and it takes up the rest of the book. It's clearly the crux of the problem. Thrasymachus says: "Justice is nothing but the advantage of the stronger." Justice equals power; politics is power; politics is might makes right. This is what Socrates and Plato are squaring up to. Plato's answer: Power shouldn't make the decisions, philosophy should make the decisions because honestly, power makes really bad decisions: "Yes, my plan for us as a collective unit is that 100 people make more money than a human can ever use, a bunch of people starve, there are many wars and much oppression and we ruin the ecosystem." It's the worst plan in history: Anyway, I digress. 

The thing is, they're going hard at this problem, which is: How do you get power our of the decision-making process. Power makes all of the bad plans of history. We want to use this method - philosophy - to make plans. It's a really good problem-solving method; we're going to get better plans. I think that's the bottom-line message of The Republic. They were also realizing, there are all kinds of power. Everyone knows about physical force, but there's: wealth; religion (authority from God); psychological manipulation (sophistry, but also fear, self-interest... it's a whole can of worms); information (necessary tool of science); sexual power (physical attractiveness influences the majority), etc. Well, I think what Plato tells us is that the enemy of the polis is power and getting power to out of the decision-making process is no easy task. So, that's pretty good progress they're making on the issue here. If you make bad plans, you're going down; power makes bad plans; philosophy (science) is a really good tool for making good plans (no guarantees, but it's your best shot). Therefore, we need to come up with a system that let's decisions for the collective be made rationally and keeps power out of the decision-making process. That's the purpose of a constitution. That's what it's really trying to do. That's it's nature. It's trying to solve the problem of power.

Athens has a situation a lot like us. The democracy controls the police power: Thus, no danger of having that power muck things up. And that's an important clue, by the way: putting important powers in the hands of the collective is a way to stop power from mucking things up so often. So ok, Athens was not making bad plans because people were showing up at the assembly with a weapon. Athens was making bad plans because wealthy citizens (claiming to be descended from the Gods) were using this tool of science to manipulate people for their own gain. And it was sophisticated. People made good livings training people how to make the weaker argument seem stronger. Think of that: Training people to get the collective unit to make bad decisions. It's an existential threat to the life of the collective. It's really shitty. I mean that's why the question is so pressing: Athens is going down. And these inventors of this great method discovered a heart-breaking fact: Like all tools, the tool of science can be used for good or evil. Power doesn't use the tool of science well. Plato wanted to create a society run by philosopher rulers. Big problems with this, but the idea is right: We want to find a way to make rational decisions and not bad decisions. It's interesting where Plato's theory falls apart actually. He concedes that those inclined to philosophy, don't want to rule; they want to do philosophy. I think this is true, but potentially beneficial. It means that the centers of power generally don't have the best philosophers, which in a mixed government can be a good thing: you can make science an institution of the people and wall it off from centers of power (police power and wealth). I mean, not totally, they need people trained in science. But the best people can be walled off. The professors, the people who do it for a living. That actually seems a good to me because putting the important powers into the hands of the collective is a good way to keep power from undermining the process so often. I think that's why Aaron Swartz was so important. I think he was bringing us an important message about that. Science must be in the hands of the people; it must belong to the people. And Julian Assange brings the other side of that coin: you can't make good decisions without accurate information; the people need access to science and good information. Science should be in the hands of the people and walled off from power; power should be as transparent as possible. 

Anyway, Plato really wants to train people in this method and that's good progress too. Give this training to everyone, for free. Give everyone access to it. So again, more good progress. I mean Socrates and Plato really run at the problem hard. Reading Plato's dialogues is like watching a great chess master. He sees every problem, every subtlety.. it's impressive. And I think he makes lots of progress. But he never cracks it. Towards the end of his life, he writes The Laws and it's just this awful, authoritarian system. He realized something else: Not that many people are philosophical; in fact, most aren't. So, how does a democracy make good plans? He concludes they can't and ultimately, just gives over to really brutal laws. It's pretty sad, actually. The Republic is really beautiful. He was trying to create something good: Just more problems than could be solved in a lifetime. This brings us to Aristotle.

Aristotle's approach is different than Plato's. When he's trying to understand constitutions, he reviews 150 of them and looks at what they do and how well they worked. His approach to the problem is historical; it's empirical. It's a lot like my tradition (the common law). The common law looks at how people approached a problem in the past, tries to figure out why it doesn't seem to be working and tries to fix it well enough to solve the particular problem before them. This is pretty achingly slow. Sometimes it takes several hundred years to fix a problem. And, the thing is, if you don't fix it, it keeps cropping up. When I studied the Takings Clause (literally from the creation of the power of eminent domain), you could see this. Regulatory takings really stumped them. Several rules were tried, but they failed and problems kept cropping up. At one point, the Court throws it's hands in the air and just adopts a fact-driven test. Fact-driven tests are a sign that they haven't cracked a problem. It just basically says: we'll just let the judge hear the story and do what she thinks is fair. It's not a good solution. And, of course, the problem keeps coming up. Well, I think they're getting onto a good test recently. But all of that took like 100 years. In England, getting ordinary takings sorted out, it took several hundred years and several really bloody rebellions. Lots of people died to get property out of the hands of power. And actually, they realized something really interesting: The state needs property for some reasons that are good. Thus, they hammered out a rule where the state could seize property for public use (building roads), but had to provide just compensation. It's not taking property out of the hands of power; it's hobbling power; it's giving power limited, restricted access. 

The common law is great for this; better than philosophy, I think. Because as many problems as Plato could foresee, it doesn't add up to confronting a problem in real life over hundreds of years. I really think this is true of the common law: Even when it's wrong, they've got hold of something important. They're wrestling with something significant. And they make lots of progress. Like the whole Trial by Combat or Trial by Ordeal thing? That gets a really bad rap, but look what comes out of it. There's this idea that an accusation might not be true; that's presumption of innocence. There's also the idea that we need some procedure for determining guilt or innocence; that's due process. So, pretty good really. And besides, our justice system is total crap. I've sometimes mused that we should give those inner city kids the option of trial by combat. I can't say we'd get less just results. Anyway, long digression... back to Aristotle.

Aristotle is considering these same problems and he comes up with something brilliant. Just accept that most people aren't philosophical. But your problem is with shutting down power; create procedures to do that. Looking at this problem of money-backed sophists, one answer is cut off the money. Don't let them take such sophisticated runs at this; limit inequality constitutionally. Don't give people the tool they can use to undermine the whole decision-making process. That's proceduralism. Proceduralism doesn't try to change human nature or to eliminate power; it tries to yoke power and keep it directed towards positive purposes and barricade it's destructive tendencies. That's important progress too. Though no easy task. Power seekers are serious; they run at the constitution and laws constantly. Power seekers really focus. Also, there's a whole cultural amnesia thing. 

Anyway, Aristotle figures out a bunch more, but this is already a book. So, I'll pick this up later. But you know, it's a long story. It's as old as philosophy, but really, as old as human history. How do we make good decisions for the collective? How do we have a just society? It's every myth, every religion, every society in the history of time. But the Greeks are the ones who start to run at it scientifically. And the British come up with the other powerful tool: Deal with it one dispute at a time and write it down. The common law is amazing. It's this history of confrontation with actual, concrete problems of justice, with solutions that can evolve. They worked out a lot of really good solutions. A lot of important pieces of the puzzle come from common law. A problem just keeps coming up until it's fixed. And then, someone cracks it and it goes away. The Takings Clause - the basic solution - never gets challenged anymore. Regulatory takings was tricky, but the Takings Clause itself just works pretty darn well. It took forever, but they wrote it all down. We get the benefit of that. It's a natural history of justice. I think philosophers ignore it way too often.

But, you can see, it's not an easy thing to explain. What is a constitution? Why is our broken, precisely? Why should it be updated? What needs to be updated? Well, where to start? Though I suppose I've just started. More on this later.