Notes on Constitutional Amendment and the term Revolution

Just a quick note to myself for later -

I have put forth a hypothesis about constitutional amendment: namely, I have suggested that the constitution should be modernized because it is a late-18th century document that did not adequately address a number of matters (commerce and war powers most obviously). When you look at things like black-site torturing, they look like legal holes - like the constitutional version of an off-shore tax shelter, like a way to avoid the constitution. The same is true of private security firms working with agencies like the NSA - it appears they do not operate within the same constitutional parameters (if the operate with any parameters at all).

I have referred to such modernization as a revolution, but only in the sense that the creation of our Constitution in 1787 was a revolution. Thus, by revolution I do not mean what would normally be called a revolution. I am not referring to street demonstration, for example. I am simply advocating constitutional amendment, by a process that is wholly lawful and peaceful. If the change was significant, this would technically be considered a revolution (in precisely the way the creation of our constitution is referred to as a revolution, but only in that sense). If the constitution can be amended outside of Article V, dramatic change is possible WITHIN the law. This has real advantages - because it is lawful and peaceful, it is protected first amendment speech.

The primary points of reference for this hypothesis are twofold: First, Gene Sharp's stages of revolution suggest that the purpose of revolution is installing new laws (stage 3 is installing a constitution). The second point of reference is Professor Amar's famous law review article suggesting constitutional amendment outside of Article V.

I also wanted to note that scholars are not openly using the word oligarchy (a classic form of tyranny in basic political theory). Piketty claims we re drifting to oligarchy; scholars like Jeffrey Winters have argued we are already there (Mr. Winters identifies the United States as a civil oligarchy). Another interesting work is Hacker and Pierson's notion of legislative drift as if offers a good analogy to my thesis about the constitution; if legislation can become unsuited to modern society it would seem obvious that the constitution can as well. Certainly it should be at least considered whether limiting inequality constitutionally might be more effective than a legislative change to the tax code (which Mr. Piketty recommends).

The intellectual community seems poised for this issue. Piketty's work is taking America by storm (as it should in light of existing levels of inequality). Moreover, I'm encouraged that both economists and political scientists are at work on the issue. I believe Keynes was onto something when he said that ideas are what matters. If there is to be a change, I truly believe it will be an intellectual revolution - my hope is that this can be accomplished without and before any violence or use of unlawful tactics. If Professor Amar is correct, there really is a chance that it can. It's currently an unknown idea, but if it's a good one it will catch hold eventually. People are looking for something because the situation is getting so out of hand - at this point the intellectual dispute among intellectuals is whether we are an oligarchy or whether we are merely close to being an oligarchy (drifting towards oligarchy). Of course, some would say everything is just fine and that there is no amount of inequality that could be considered problematic; however, basic political theory and now economics suggests that we are (or soon will be) a form of tyranny and tyrannies fall quickly according to Aristotle. Thus, avoiding disruption (and the inevitable suffering attendant to disruption) means finding a lawful solution to this problem. Perhaps it could be legislative, regulatory (i.e. something other than constitutional), but certainly, while we are considering legal, peaceful remedies, the idea of constitutional amendment should be thoroughly explored. A distinguished Yale professor suggests it's possible and that it stands above the government. Certainly, that hypothesis is worth exploring before anything disruptive occurs (and political theory and history suggest it will occur and things certainly appear less stable than anyone should be comfortable with).

Burke is always reflexively hated by liberals (not surprising since he's considered the father of conservativism). However, I think he was right about the leveling effect of traditional revolution. That kind of instability is very costly and usually does not amount to progress in the end. But if you can legally, and without violence, go directly to constitutional amendment, that part of the Burkean challenge is solved. The other point Burke made (or has been interpreted to have made) is that rapid change (even by reform) is too disruptive. This point is well taken also. However, the possible way out of that trap is sophisticated planning. I think Naomi Klein was right to say we need to focus on planning. The most remarkable fact about what economists call The Great Compression is that inequality was significantly decreased without social disruption. If there can be change without violence or disruption and if it is perfectly lawful, that should - at the very least - be thoroughly explored in the first instance.

I was very influenced by hearing Gene Sharp on China. I think he is absolutely correct to say that one needs a complete strategy before tactics make any sense. You need to know the goal, then the strategy, then the tactics. If the goal is to install new laws (and I think Gene Sharp's work suggests that is the goal of all revolutions) then what is the best strategy and what are the tactics. Based on Professor Amar's work, the strategy can be wholly lawful and peaceful. There can be real change through constitutional amendment. If Professor Amar is correct, as citizens we can alter or abolish our constitution at any time by simple majority vote. Because the constitution is the supreme law of the land and the source of all authority in government, there is really nothing that could not be changed (which is why the end goal of revolution is to install new laws). It's the laws that control in the end and an eminent scholar has argued they can be changed without any violence, disruption or unlawfulness. Certainly that is a hypothesis that should be thoroughly explored and because it is merely constitutional amendment that is being advocated, it can be and should be discussed in the open. If advocating a lawful, peaceful constitutional amendment is not speech protected by the first amendment, it would be hard to know what is. There is no need to meet in secret or evade anything - the most interested ideas are coming from academia and are suggesting and advocating change that is wholly lawful. I certainly have not and will not ever advocate violence, illegality or disruption. We need to academics hard at work, not protestors. We need to discuss Professor Amar's thesis and its implications. We do not need and should not advocate for violence or disruption, especially if a lawful and peaceful solution is available - and Professor Amar has argued it is.