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.
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They're both really impressive, making real progress on some of the stickiest issues of justice, but they're obviously outdated.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.
STRATEGY, DEMOCRACY AND ELITISM: CONSTITUTIONAL AND POLICY CONSIDERATIONS
When discussing the notion that our Constitution needs to be modernized, I'm generally met with two types of objections. The first objection, at bottom, is that our Constitution cannot be changed because it's a sacred, unalterable holy text. The second objection is that our Constitution is elitist and anti-democratic and therefore, should be completely abandoned. I have addressed the first objection elsewhere, but little has to be said: It is not, in the end, a serious objection. The second objection, however, is a serious objection that must be addressed.
I have previously argued in favor of the possibility of a "tyranny of the majority" against minority groups. My argument is that economically stressed populations have historically been susceptible to demagogues offering a strategy of what I have termed majoritarian apartheid (anti-semitism in Nazi Germany; racism in the South).
However, there is another distinct issue with respect to democracy and elitism. Our Founding Fathers (perhaps Madison, in particular) thought that trained elites would come up with better political solutions than the hoi poloi. Various structural solutions were employed to ensure that the better educated (which for Madison also meant wealthier) citizens would have more influence. Thus, our democracy is indirect rather than direct, the Senate has more power, and so on. This concept is rarely unpacked; it is generally accepted as obviously true or dismissed as obviously false (and irredeemably elitist). I think once you start to unpack and examine this idea, it's clear that it's very complex.
The Legitimate State and the Illegitimate Surveillance State: A Response to Will Wilkinson
Will Wilkinson has recently entered into the debate spurred by the Sean Wilentz defense of the surveillance state (and attack on Greenwald, Assange and Snowden). Wilkinson correctly points out that the liberal attack of the security state is inherently illiberal and, he says, he blames libertarianism or, more accurately, liberals inability to answer a fundamental challenge that libertarianism poses. That fundamental challenge, according to Wilkinson, is the libertarian argument against the possibility of a legitimate government. He puts the central challenge as follows:
The existence of unacceptably illiberal practices of actual "liberal" states raises a perfectly good question about whether it is realistic to expect states to refrain from these practices, or whether there's something in the basic logic of the state that tends inevitably toward the abuse of power.
I wholeheartedly agree with Wilkinsons' premise that the security state (as well as the attack on Greenwald, Assange and Snowden) is blatantly illiberal and that the security state constitutes egregious abuse of power. However, I will take up the challenge of answering whether a legitimate state is possible.
What is a Legitimate State?
Basic political theory tells us that a legitimate state is one that governs for the benefit of the people, while an illegitimate government (a tyranny) is one that governs for the advantage of a powerful few. The symptoms of a tyranny are abandonment of the rule of law and use of extreme and cruel tactics against citizens as well as others.
Wilkinson's challenge that there is something in the basic logic of the state that tends inevitably towards abuse of power is a familiar challenge that is rooted in the maxim that: "Power corrupts and absolute power corrupts absolutely." Perhaps its most well-known modern expression is the Iron Law of Oligarchy, which holds that: "Bureaucracy happens. If bureaucracy happens, power rises. Power corrupts." Understanding how a state could be legitimate depends in the first instance on confronting the claim that power corrupts.