America's Constitution: A Review and Musings

I just finished reading Yale Law's Akhil Reed Amar's America's Constitution: A Biography last night, it was a very interesting, but dry read. Basically it is a front-to-back interpretation of the US Constitution, taking into account the historical context of each section, and major point, and what social factor came to play in their drafting. His self stated themes are that the founders were more democratic than we give them credit for, but also that they were more "slavocratic" as well.

Slavery plays a massive roll in the story, with its tendrils reaching from the founding, to the more modern enfranchisement amendments of the late 20th century. The effects of slavery, and later the Civil War are really the over-bearing themes of the book. The yoke, it seems, was written into the document, and took almost 100 years, with the enactment of the twenty fourth amendment, to be purged.

I suppose we all realize this on a subconscious level, those Southerners often don't let us forget how... backwards... they are. From the founding, where the pro-slavery bits had to be inserted to guarantee the South entering our "more perfect union", to the Civil War, from Jim Crow laws, to largely opposing all voter enfranchisement acts besides the most recent (fixing the voting age at 18), the South has been the bulwark of racial and sexual oppression. Just think of their race (and gender) relations from 1776 to 1962. Sometimes I think Lincoln should have just let them go, and saved the rest of us some trouble.

Before some Southerner reads this, and tries to tear me a new one, I'm focusing on the States, and not individuals. When I state that my home state is Republican (I'm sick of the red/blue fallacy), I do not state that everyone in my state is such, nor that I am, just that the majority are, and thus in spirit the whole state is.

As a point, the author avoids being Whiggish as much as possible, while still voicing his disdain at inequality. Sometimes his historical neutrality is somewhat questionable in the aforementioned slavery issues, but that is understandable.

An interesting, though completely unstated, contained in the book is the parallel between women's suffrage, and black rights. The rights (or lack thereof) of black people were debated since the drafting of the constitution, and continually a conscious issue for the American government, while women's rights were barely even thought of until the late 19^th century. The Constitution itself has things to say about blacks (mostly disparaging, and pro-slavery, like the 3/5^ths rule), but is completely silent on the issue of women's rights. To me this proves that the very idea itself was unthinkable, a woman voting, or holding office wasn't even an imaginable course at the drafting. It wasn't repression as much as a lack of imagination. It wasn't even an idea, much less an actual rejection.

The rights of blacks was imaginable at the time, so their denial can be seen as deplorable without risking being Whiggish, where women's legal rights wasn't even a “thinkable” proposition, and therefore we can't judge it since there was no freedom to choose the “right” course of action. Only when we become aware, do moral actions become possible, and only then can we start judging.

This brings me to my major revelation, much of the post-founding history of the Constitution was based on inclusion. Most of the post Bill of Rights amendments enfranchised various neglected sects of people, until all were included. It is almost a Hegelian process. You can almost tangibly sense the expanding sphere of liberalism in the process.

The second revelation is that voter participation has been slowly expanding to allow those of us who were enfranchised to slowly participate in more and more in our federal government, and generally become more powerful as individuals. Tangentially, I would say that the influence of this trend is rather mixed, leading to greater control and representation, and a greater dose of “the tyranny of the masses”. The only real bar remaining on this front is the Electoral College, which comes across as a hack, or quick fix, quite frankly. It seems to exist mostly for technological reasons, and not for any valid political reason, especially so now when much of the technical reasons are moot. The author even hints (in a very subtle manner) at this institution as fodder for future amendments.

Another interesting trend is the move away from states rights. This develops hand in hand with the various civil rights amendments. This is another mixed move. On one hand the move fixed (and was prompted by) the repressive trends that they seem predisposed to, on the other hand it removed the ability of states to line their laws up with the needs, wants, and character of their populace. While this move killed Jim Crow, it also bars states such as California from experimenting with medical marijuana (for example).*

The author's discussion on the Second Amendment is also insightful, in that he invalidates both prevalent modern positions on it. Neither the libertarian “everyone may have guns, with no restrictions”, nor the liberal “there are no militias, and thus gun ownership must be regulated” are correct, or textually informed. The death of state militias after the Civil War made the second amendment empty. Militia, in the historical context, meant an organized, standing, military within the control of the states, and not, as we now think, an unorganized body of citizery. He states this by looking at the phraseology of the amendment, it is the right of “the people”, and not “persons”, meaning it is a collective right, and not an individual one. Also the very term “bear arms” has a clear historical military meaning, and not a recreational one. Hunters and hobbyists don't bear arms, military units do. What practical impact this has, though, is left largely to the reader.

Another interesting, and currently pertinent, item is the term “misdemeanor” when applied to impeachment. In context, a misdemeanor is not necessarily the consequence of breaking a law (as in the legal sense), but more exactly just misconduct, such as lying to congress or corruption. No actual law must be broken to be impeached, the bar only sits at conduct unseemly of the position.

Yes, I'm a bad citizen, I've paid less attention to the actual written constitution than I have the Bible. You see the irony? The sad part is that I don't think I am in a minority in this. How many households have Bibles, versus how many have a textual copy of the Constitution? Incoming (legal) immigrants have a deeper understanding of our country's most important document than we (born citizens) do. This is especially interesting in an age where we clamor for increased constitutionality in our government, who wants to discard it completely it often seems. How can we tell someone to respect principles that we, ourselves, are unfamiliar with?

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* The spirit of this move also bars states from changing their drinking ages, speed limits, and a plethora of other “soft control” enforced laws. This aspect is largely negative. I have the idea that states should participate in a form of “ideological market”, with various locally reflective laws, and thus reaffirming their identity by luring like minded individuals, and serving as a test-bed for new legalistic, and moral, systems. Popular states will make more tax money, and grow in power, forcing less reflective states into line, without the influence of an aloof, and disconnected, federal government. Laws should reflect the needs of the governed, and NOT the ideological will of the governors. Politicians are often moved to action for our perceived “protection”, and lose sight of the mandate that gives them power, the will of We the People. They think they know better, and are some sort of parental figure to the people, and not just a mere servant. Moving the power closer to US, is generally a good thing.

Civil laws should be the domain the federal government, to keep states from oppressing any aspect of their population. The federal government should also serve as a check against state tyranny. While states themselves should regulate themselves in regard to the morals, ethics, and themes, of their individual societies. If a state votes to legalize gay marriage, ban abortion, or legalize various drugs, then who is the impersonal federal government to disagree? This is largely a hypothetical view, since there are definitely thorny issues involved. Is loosening our larger identity and country loyalty a good thing, it was, after all, an indirect cause of the Civil War? What ARE our rights, and where will the sweeping inclusion move next? Perhaps the ability for homosexuals to marry is a civil right, and this the government must protect against states infringing on it, the same goes for both sides of the abortion debate. A women might really have the right to choose, or the fetus might really have the right to life, and thus either party would need to be protected federally. These contentious issues, thus, remain so.