The Vague and Ambiguous US Constitution

We know from documents and writings of the time that the founders didn’t agree on the Constitution before, during, and after it was written. They couldn’t even agree on whether it should be written, with many fighting against it on principle. The debates were harsh and sometimes violent, nearly tearing the country apart before it had been fully established.

Others only agreed to the Constitution if a Bill of Rights were to be added, while others resisted a Bill of Rights for the very reason they were seen as too specific. It should be noted that the Bill of Rights, the most detailed part of the Constitution, was only added later (ratified years after the Constitution) and was the most strongly contested part. Yet, it too has problems, as Leonard W. Levy explained (Original Intent and the Framers’ Constitution, p. 340): “Even the seemingly specific injunctions and provisions of the Bill of Rights are vague, requiring much interpretation.”

The Articles of Confederation was much more specific in the described limits to power and rights to citizens. Many who sought the new Constitution did so in order to weaken this aspect.  Even so, the Articles had conflicting layers of meaning, just like the later Constitution. It was written by the Federalist John Dickinson whose thought was shaped by Quaker constitutionalism (as a living document, a specific people at a specific place and time making a specific covenant with God), but then the document was filtered through a revision of non-Quaker Anti-Federalist thought.

This kind of mixing and sometimes inconsistency was simply par for the course. Even in the Declaration of Independence was intentionally vague. It was an inspirational document of solidarity, not a clear explication of specific principles. Some interpret it as espousing natural law and natural rights, even though there is strong evidence that Thomas Jefferson didn’t support this view. Also, Dickinson’s Quaker influence was in opposition to natural law. But it is true that other founders did believe in it, and hence the need for unclear language that could be interpreted variously.

None of this should be surprising. The colonists didn’t just come from different colonies, some from the coastal cities and others from the frontier. Among those who weren’t colonial born, many came from a diversity of countries and from culturally distinct regions of the same countries. The colonial population, including the founders, included a diversity of ethnicity, religion, and political traditions (consider the mixed ideas of freedom and liberty). Without ambiguity and equivocation in the founding texts, it’s unlikely independence would have been won, a constitution agreed upon, and a functioning government instituted.

The Constitution was seen as a compromise, a temporary truce in the debate. The Founders decided to intentionally keep the wording at a surface level, for anything deeper would have led to irresolvable conflict. Many of them figured that either it would be revised later on or that maybe an entirely new constitution would take its place. Benajmin Franklin, for example, thought it would only last for a decade. Jefferson was a bit more extreme in that he thought not just new constitutions but new revolutions would be necessary.

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The Irony And Deceit Of Constitutional ‘Original Intent’ Arguments
By David K. Sutton (from The Left Call)

If there is one “original intent” we know of the Founding Fathers it is that they wrote the constitution intentionally vague. This is an important distinction to understand. What is or isn’t constitutional is decided by the judicial branch. This is because most legislative provisions simply are not mentioned in the constitution, therefore it is up to the judicial branch to interpret the words of the constitution, if these provisions face legal challenge.

E.J. Dionne reminds us of the preamble to the United States Constitution. It reads:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Dionne reminds us of the importance of those first few words, “We the People.” It is up to us to decide the path of this great country. It is no longer in the hands of the Founding Fathers. They crafted a framework that we can build on to move the country forward. This is why those who subscribe to an ideology of strict original intent have it wrong. The only intent we can ascertain is from the written text of a purposely vague document, the constitution. Beyond that it is up to “We the People” to make the country adapt and work better for all citizens as times change “in Order to form a more perfect Union.” There was no original intent when it comes to universal health care or climate change or any number of important issues that we now face. If we get bogged down in arguments over original intent we ironically lose sight of the real original intent.

Original Intent and the Framers’ Constitution
By Leonard W. Levy
p. XI, Preface

“Tis funny about th’ constitution,” said Mr. Dooley, the philosophic Irish bartender created by Finley Peter Dunne. “It reads plain, but no wan can undherstant it without an interpreter.” The Supreme Court is the official and final interpreter of the Constitution, but from the beginning of its history, disputes have raged about how it should interpret the Constitution. In its very first constitutional decision the Court provoked a controversy on the question whether its judgment faithfully adhered to the intentions of the Framers of the Constitution. For several decades after the ratification of the Constitution the fading memories of those who had attended the Philadelphia Constitutional Convention supplied the main evidence of the Framers’ intent. Even when those memories were fresh, the Framers disagreed vehemently about what the Convention had meant or intended, as the controversy in 1791 over the chartering of the Bank of the United States showed. Not until the publication of Madison’s Notes in 1840 did a source become available for original intent analysis. […]

Original intent as constitutional theory is rarely if ever at issue in real cases decided by the Supreme Court. When the Court employs original intent, it refers to the understanding of the Framers respecting a particular provision of the Constitution that is imprecise. In real cases the meaning of the provisions involved in litigation is not clear. Indeed the Constitution tends to be least clear when most involved in litigation; that is especially true of rights as compared with matters of structure. Some of the most important clauses of the Constitution are vague, ambiguous, or, paradoxically, too specific in meaning. The most important evidence of original intent is the text of the Constitution itself, which must prevail whenever it surely embodies a broader principle than can be found in the minds or purposes of its Framers. For example, they had political and religious expression in mind when they framed the First Amendment, but its language contains no restriction. They probably did not mean to extend the rights protected by the Sixth Amendment to “all” criminal prosecutions, but the text says “all” and deserves obedience. They had black Americans uppermost in mind when they designed the Fourteenth Amendment, but its expansive expression applies to all, not only to all races but to people of all religions, creeds, and national or ethnic backgrounds, regardless of legitimacy, sex, or alienage.

Conversely, if two centuries of constitutional government have resulted in wider understanding than the text itself suggests, that is, if the meaning of the text has become expanded beyond its literal phrasing, the text takes second place. Thus, although the Framers did not include “words” as well as “persons, houses, papers, and effects” in the Fourth Amendment and although eavesdropping was commonplace in the eighteenth century, words seized by wiretapping and electronic eavesdropping come within the amendment’s protection against unreasonable search and seizure. Similarly, the right against compulsory self-incrimination protected by the Fifth Amendment seems, literally, to apply only in “criminal cases,” but the text applies with equal force to nonjudicial proceedings such as grand jury and legislative investigations, to administrative proceedings, and even to civil cases in which questions are posed that might, if truthfully answered, raise a threat of criminal jeopardy. Notwithstanding some advocates of a jurisprudence of original intent, the Constitution cannot be interpreted literally, if only because it is murky at important points. Were it not, the real cases would not keep arising.

p. XIV, Preface

The process of seeking original intent is elusive, if not illusive, because the fundamental text may be ambiguous and vague, or overarches a particular situation. […]

“Original intent” is not a well-chosen term but it is commonly used and widely understood to mean what the Constitutional Convention understood or believed about the Constitution. Intention, intention, and intendment may be distinguished but I do not find the distinctions fruitful in a discourse meant for nonlawyers. Intent may refer to motive, to purpose, even to reasons, but I think that the commonplace usage of intent, in the context of the debate about the “original intent” of the Framers, refers to what they meant. Nevertheless, “intent” is unsatisfactory because it implies a single or uniform frame of mind, or purpose, or understanding on the part of the Framers of the Constitution and even of the ratifiers of the Constitution. “Original intentions” would have been a far better term.

p. 20-21

But the sense of the nation was not easily discovered or discoverable, not even as to major allocations of power, let alone as to the meanings of particular clauses. So Madison argued in The Federalist #37. He believed that to allocate authority between the federal and state governments and between the three branches of the federal government created problems that perplexed even statesmen, jurists, and philosophers. The Constitution necessarily contained ambiguities. It reminded him of laws that had been framed with the greatest technical skill and passed in fullest deliberation, yet remained “more or less equivocal, until their meaning be . . . ascertained by a series of particular discussions and adjudications.” Words stated ideas imperfectly, giving them an “unavoidable inaccuracy” that increased with the complexity and novelty of a task such as strengthening the Union. Madison offered various reasons for “vague and incorrect definition,” any one of which resulted in obscurity of meaning. The Convention, he concluded, “must have experienced the full effect of them all.” 81

How then was the meaning of the Constitution to be fathomed? Madison believed that experience fixed meaning in doubtful cases but that meaning was not fixed forever. He would have preferred a static Constitution, and he resisted, even deplored, certain changes in meaning. He probably had in mind the Hamiltonian financial system, the Sedition Act, and overbroad judicial opinions such as those in McCulloch v. Maryland and Cohens v. Virginia when he said that deviations from the “fair construction of the instrument have always given me a pain,” and he wished that innovations based on overbroad constructions would cease; but he knew that change was inevitable. 82 He would have preferred to believe that the Constitution speaks for itself according to the usual and established rules of interpretation, for which intention cannot be substituted. And he advocated that whenever possible the language of the Constitution should be construed according to the people’s understanding as evidenced by “contemporaneous expositions.” 83

But he understood that just as words changed in meaning, so did the Constitution. “It could not but happen, and was foreseen at the birth of the Constitution,” he declared, “that difficulties and differences of opinion might occasionally rise in expounding terms and phrases necessarily used in such a charter,” especially as to the powers in the federal system. Practice would settle some doubtful matters, and the meaning of the Constitution, to the extent that it depended upon judicial interpretations, would emerge from decisions over a period of time. 84 Madison conceded that experience had caused him to change strong opinions on some matters. For example, he once thought that the Constitution prohibited Congress from chartering a bank, but he had been compelled to change his mind, because the sovereign will had expressed itself by acquiescence in a course of exposition that altered the original meaning of the Constitution. Popular understanding simply had overruled his previous views of the matter. When an authoritative, uniform, and sustained course of decision or practice received “public sanction,” Madison believed that the Constitution evolved in meaning, and the old must give way to the new. 85 When the words that composed a text altered in their meaning, “it is evident that the shape and attributes of the Government must partake of the change to which the words and phrases of all living languages are constantly subject. . . . [O] ur Constitution is already undergoing interpretations unknown to its founders. . . .” 86 Similarly, he observed: “Some of the terms of the Federal Constitution have already undergone perceptible deviations from their original import.” 87 Those were not facts that he applauded; rather, he personally disapproved but understood and acquiesced.

p. 208-210

What import did the free press clause possess at the time of its adoption? Its meaning was surely not self-evident. The controversy in the states over the ratification of the Constitution without a bill of rights had revealed little about the substance and scope of a free press, and the debates by the First Congress, which framed the free press clause, illumined even less. Congress debated the clauses on religion, but on the remainder of the First Amendment it considered only whether the right of peaceable assembly vested the people with the power to instruct their representatives on how to vote. In the course of that discussion, Madison made the only recorded statement on the subject of speech or press. If by peaceable assembly, he said, “We mean nothing more than this, that the people have a right to express and communicate their sentiments and wishes, we have provided for it already. The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government. . . .” 62 Any interpretation of the meaning and compass of the free press drawn from this vague statement would strain credulity.

The state legislatures that ratified the First Amendment offer no enlightenment either. Without the records of their legislative debates, we do not know what the state legislatures understood the free press clause to mean. Other contemporary materials do not help either. Most people undoubtedly cared about protecting freedom of the press, but no one seems to have cared enough to clarify what he meant by the subject upon which he lavished praise. If definition were unnecessary because of the existence of a tacit and widespread understanding of “liberty of the press,” only the received or traditional understanding could have been possible. To assume the existence of a generally accepted latitudinarian understanding that veered substantially from the common law definition is warrantless, given the absence of evidence. Any novel definition expanding the scope of free expression or repudiating, even altering, the concept of seditious libel would have been the subject of public debate or comment. Not even the Anti-Federalists offered the argument that the clause on speech and press was unsatisfactory because it was insufficiently protective against prosecutions for criminal defamation of the government. Not even they urged that truth could be no libel.

Even if we assume that the Framers really intended to impose upon the national government “an absolute, unqualified prohibition” 63— there shall be no law abridging freedom of the press— we should recognize that the Framers cared less about giving unqualified immunity to all discourse than they cared for states’ rights and the federal principle. […]

 

The big question persists, however: Even had Congress passed, and the states ratified, an amendment imposing upon the states the same prohibition laid by the First Amendment upon the national government, what did the Framers understand by freedom of speech and freedom of press? No one can say for certain what the Framers had in mind because there is not enough evidence to justify cocksure conclusions, even though all the evidence points in one direction. Whether the Framers themselves knew what they had in mind is uncertain. At the time of the drafting and ratification of the First Amendment, few among them clearly understood what they meant by the free press clause, and we cannot know that those few represented a consensus.

pp. 318-319

The Court missed the fact that the vague clause on “capitation and other direct taxes” was a concession to the South, not, as the Court generalized, a bulwark of “inequality” imposed “to prevent an attack upon accumulated property by mere force of numbers.” 135 Moreover, the Court drew the wrong conclusion after quoting Madison’s Notes: “Mr. King asked what was the precise meaning of direct taxation. No one answered.” The right conclusion is that the Framers were unsure or did not know. 136 In his argument as counsel for the government in the Carriage Tax Case of 1795,137 Hamilton had asked what the distinction was between direct and indirect taxes, and he began his response by stating, “It is a matter of regret that terms so uncertain and vague, on so important a point, are to be found in the Constitution. We shall seek in vain for any antecedent settled legal maxim to the respective terms. There is none.” 138 In the Income Tax Cases, the Court imposed its own views of history in order to deliver an opinion that seemed to have the paternity of original intent; in effect the Court sought to rely on the wisdom of the Framers to get around encumbering precedents.

pp. 331-335

The text is what counts, but the notion that it must be construed according to original intent is itself a prejudice. It is, moreover, a notion that lacks original intent. That is, no evidence, not a shred, exists to show that the Framers meant, wanted, or expected future generations to construe the Constitution as they, the Framers, had. Nor is there any evidence to show that they expected the future to be bound by the past. Rather, they expected the future to interpret the Constitution as best it could, just as the development of the common law was left open. The text of the Constitution declares it to be the supreme law of the land together with treaties and laws made in pursuance of the Constitution. By binding state courts to follow the supreme law and by extending the judicial power of the United States to that law, the Constitution obligates courts to expound its meaning. In that regard the intention of the Convention clearly appears in the Constitution itself. As Hamilton wrote in The Federalist #22, the “true import” of treaties and laws that constitute the supreme law of the land must “be ascertained by judicial determination.” 21 Madison, who blew hot and cold on judicial review and defended the right of the President and Congress to decide constitutional questions for themselves, acknowledged that “in the ordinary course of government, . . . the exposition of the laws and Constitution devolves upon the judicial.” 22

Unlike John Locke, an inept constitution-maker who believed that written statements of the fundamental law must, like the laws of the universe, be immutable to be eternal, the Framers of the Constitution recognized the need for plasticity and the inevitability of change. Locke once wrote a constitution for the Carolinas expressly providing that “every part thereof, shall be and remains the sacred and unalterable form and rule of government, for Carolina forever.” As insurance he prohibited “all manner of comments and expositions.” 23

For the most part the Convention designed the Constitution with the utmost diligence and attention to detail. Almost always the Constitution is explicit. The Convention chose words with craft and craftsmanship, on the whole. That is the reason that constitutional law does not involve the bulk of the Constitution. It does not have to be litigated because it is clear and understandable. Consequently, one who carefully reads the Constitution finds startling the occasional vagueness and ambiguities, such as the provision requiring no “capitation, and other direct tax” unless apportioned among the states on the basis of population. Although we believe that the Framers regarded as direct taxes only taxes imposed on people per capita and on land, 24 they did not say so. Because the Constitution is overwhelmingly a model of precision and pithiness, an open-ended phrase like “other direct tax” must have been deliberate.

That phrase appears in the midst of a list of prohibitions. The Constitution clearly describes the three branches of the national government but seems to waffle when describing some prohibitions, some powers, and some rights. As to them we find ambiguities and vagueness. During the ratification controversy, Anti-Federalists lambasted the Constitution because of its lack of clarity in crucial respects. They feared that uncertainty in meaning would sap states’ rights and civil rights. The “necessary and proper” clause was their particular bête noire. Even Edmund Randolph, who had introduced the Virginia Plan at the Convention (Congress “ought to be impowered to . . . legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted” by state acts25), stated during the ratification controversy that he objected to the necessary and proper clause because “the clause is ambiguous.” 26 In The Federalist #37, Madison sought to answer the ambiguity charge leveled at many clauses when he wrote:

All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.

Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the full effect of them all.

To the difficulties already mentioned may be added the interfering pretentions of the larger and smaller States. . . . The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. 27

Another signer of the Constitution, Abraham Baldwin of Georgia, confronted the issue of ambiguity as a member of the Congress that debated Jay’s Treaty. Baldwin declared:

He would begin it by the assertion, that those few words in the Constitution on this subject, were not those apt, precise, definite expressions, which irresistibly brought upon them the meaning which he had been above considering. He said it was not to disparage the instrument, to say that it had not definitely, and with precision, absolutely settled everything on which it had spoken. He had sufficient evidence to satisfy his own mind that it was not supposed by the makers of it at the time, but that some subjects were left a little ambiguous and uncertain. It was a great thing to get so many difficult subjects definitely settled at once. If they could all be agreed in, it would compact the Government. The few that were left a little unsettled might, without any great risk, be settled by practice or by amendments in the progress of the Government. He believed this subject of the rival powers of legislation and Treaty was one of them; the subject of the Militia was another, and some question respecting the Judiciary another. When he reflected on the immense difficulties and dangers of that trying occasion— the old Government prostrated, and a chance whether a new one could be agreed on— the recollection recalled to him nothing but the most joyful sensations that so many things had been so well settled, and that experience had shown there was very little difficulty or danger in settling the rest. 28

Although the Framers were masters of the art of the possible, sometimes their compromises led to cloudy language; sometimes they could not compromise and deliberately left the phrasing of a proposition open-ended to avoid still greater offense by spelling out something better left only partially said.

Ambiguity and vagueness crop up in the nonstructural sections of the Constitution. Ambiguous words permit different understandings, while vague words do not allow for much understanding.

Representative Words: Po litics, Literature, and the American Language, 1776-1865
By Thomas Gustafson
pp. 294-7

Indeed, in the early republic much of the passion and most of the power struggles over such questions as the national bank, the tariff, and slavery were channeled into the forum of constitutional debate, and the words of the text were constructed and reconstructed by the various parties to support diverse and contradictory points of view. And in American there is no consensus about the sovereign center that was to end the infinity of interpretation, because the Constitution, in effect, had divided the center between several branches of government and the states while theoretically locating it in that inherently diversity entity the vox populi. But while there was no consensus about the meaning of the words of the Constitution, there was a fundamental agreement until the crisis over slavery in the mid nineteenth century that the Constitution was the grammar that provided the rules for framing the articulation and resolution of differences between sources of authority and modes of representation in the American republic. Like language itself, the Constitution has the capacity to reconcile stability and liberty, order and change. It is a langue—a fundamental system of grammar, syntax, and vocabulary—that structures the process by which the vox populi articulates new paroles: new amendments, new political representatives. The Constitution’s ability to sustain a tension between stability and liberty, mediating conflicts between the party of memory and the party of hope, was tested to the breaking point in antebellum America as the country began to fight a war of words over attempts to settle and reconstruct its language.

Retraction and Coda

I have argued so far that the language of the Constitution is ambiguous, that the framers designed it in part to be ambiguous, that the Antifederalists distrusted that amibuity, and that Madison defended its ambiguity. But if we heed Walter Benn Michael’s argument in “Against Formalism: Chicken and Rocks,” then I must retract part of my argument and maintain that the language of the Constitution is no different from the language of any text: it is not inherently ambiguous, not is it inherently clear. Though we ascribe properties such as ambiguity and clarity to texts, these properties, Michaels asserts, do not belong to the text but are “functions . . . of the contexts in which texts are read.” An explicit text is, simply, a text whose meaning is not under dispute; and an ambiguous text is, conversely, a text whose meaning is contested. Read from a single perspective at a certain moment, the phrases “We the People” and “freedom of speech” may appear as perfectly unambiguous as, say, the phrase “a pound of flesh” in Act I of the Merchant of Venice.  But with a change of fortune or in a new context or viewed from more than one angle of vision, meanings proliferate, and ambiguity must be confronted: an ambiguity that reflects our attention back to our eyes (or the ideology) of the beholders. E. L. Doctorow switches our focus in this very way when he explains in a meditation on the Constitution as a text:

All told, it is as if the enigmatic constitutional text cannot be seen through, but, shimmering in ambiguity, dazzles back at each generation in its own times and struggles it is as if the ambiguity is not in the text but in us as we struggle in our natures—our consciences with our appetites, our sense of justice with our animal fears and self-interests—just as the Founding Fathers struggled so with their Constitution, providing us with a mirror of ourselves to go on shining, shining back at us through the ages, as the circumstances of our lives change, our costumes change, our general store is transformed into a mile-long twenty-four-hour shopping mall, our trundle carts transmogrify into rockets in space, our country paves over, and our young republic becomes a plated armory of ideological warfare: a mirror for us to see who we are and who we would like to be, the sponsors of private armies of thugs and rapists and murderers, or the last best hope of mankind.

The Constitution, in this reading, is a vessel for our passions and prejudices—and for our principles. The text, and its interpretations, however, have been more than a mirror representing our values. They have been sources of enlightenment, a lamp projecting values, shaping people to the order (and abuses) of the word and, more important perhaps, determining how we resolve—or seek to resolve—our clashes of values.

If rhetoric as Yeats claims, arises from our quarrel with others, and poetry from our quarrel with ourselves, then the Declaration tends to be rhetoric, and the Constitution to poetry More than the Declaration, the Constitution is the ground of American Renaissance literature. The conflicts between union and liberty, freedom and slavery, the tyranny of the majority and the rights of the individual, the protection of regional identity (states’ rights) and the quest for national identity (consolidation) and between property rights and human rights; these moral and political conflicts, inscribed in the texts of the Constitution, take form first as the stuff of textual battles in the constitutional crises of the nineteenth century and then, inscribed in the plots, as the stuff of American Renaissance literature. even the confrontation with slavery—the confrontation that demanded that American writers listen less to the courtly muses of Europe and more to the principles of the Declaration—was first and foremost (and finally) a constitutional crisis: a question of resolving the ambiguity of “We the People of the United States” and of deciding whether or how to privilege one constitution value, one legal precedent, over and against another. The silences of the Constitution, the gaps in its articulation, its contradictions had to be overcome, and they came to be bridged not just by the voice of the law or the voice of political representative. […] Even Whitman, for all his rebellion against poetic form, for all his personal disgust with slavery, for all his outspokenness, demanded obedience to the Constitution of 1789 and its sanction of slavery. But the Word of God, the book of nature, and the Declaration became, at first and then more and more in the North, alternative grammars of thought: a higher langue for generating transcendental paroles and emancipation proclamations.

The Constitution, if we consider it to be a grammar, possesses the capacity—or we have made it possess the capacity in its history—to incorporate in its workings more than one language. It can, that is construct or generate sentences from more words than its own dictionary of terms contained in the four corners of the text. “Is the Constitution,” Laurence Tribe asks, “. . . at war with its own premises?” “Perhaps,” he responds, “it speaks in the words of Walt Whitman: ‘Do I contradict myself? Very well then, I contradict myself. I am large. I contain multitudes.'” The Constitution can speak in as many tongues as Whitman sought to represent; it can listen to as many voices as Whitman heard (and more); it can be for new readers, as Whitman’s children, a “chant democratic” that helps form, in the spirit of our bard, our most Orphic visionary, “a great aggregate Nation.”

Achille’s Heel of Opponents to Move To Amend

“. . . corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.”
~Supreme Court Justice Stevens, January 2010

Opponents to Move To Amend tend to avoid or not understand particular issues that are fundamental to debating the pros and cons. The following are three of the most central issues that come to mind. These combined are the Achille’s heel of the opposition. I have yet to see a strong argument that deals directly and fully with all three of these, especially not the first issue.

1) Move To Amend is promoting traditional constitutionalism and original intent. The proposed amendment is limited to one single issue. It clarifies the meaning of personhood to be limited to what the Founding Fathers meant by ‘persons’ when they wrote the Constitution.

Constitutional persons are different than legal persons. As such, constitutional rights are different than legal rights. In traditional constitutionalism, the rights of humans precede and trump all laws and all government. Whether or not one believes in natural rights, constitutional rights are declared as being inalienable rights. They aren’t given to us by government. They are our rights because we believe they are our rights, not because government tells us they are our rights.

Corporations, unlike constitutional rights, are inventions of government by definition and design. A corporation can’t have constitutional rights for the Constitution came before all government laws and creations. None of this says anything about the legal construction of corporations as fictional persons. It just means that legal personhood says nothing about Constitutional personhood.

They are simply two separate issues. But the opponents of Move To Amend often conflate the two, either because of confused thinking or for intentional obfuscation.

2) Studies have shown that money influences politics.

Obviously, more money means more influence and unlimited money potentially means unlimited influence. The opponents of Move To Amend will point to some particular election in order to say that this particular candidate spent a bunch of money and yet still lost, but this is cherrypicking data. When all elections are looked at, the pattern becomes clear. In most cases, the candidate that gets the most money wins.

Money isn’t speech. The Founders never intended money to be speech and would have found the concept absurd. It’s just a way of trying to extend a constitutional right to corporations, but the Founders never intended corporations to have constitutional rights. It makes no more sense to say that corporations have a right to free speech than to say that corporations have a right to vote or a right to pursue happiness.

Only natural persons can do those things.

3) The unlimited spending allowed by Citizens United is extremely unpopular among the American public. Move To Amend, however, is extremely popular.

It isn’t just popular among one single group, as the opponents would like to portray. This isn’t an agenda of liberals or of the Democratic Party. Move To Amend bills have been passed all across the country, including in conservative places (e.g., Utah). This is an issue that cuts across the political spectrum. It is true populism.

In a democracy, it is hard to get around the public seeing something as fundamentally undemocratic. It’s a strange notion that a moneyed and political elite should tell the democratic public what democracy means. The American people genuinely want self-governance. That is what the Founders wanted as well.

This goes back to original intent. It is something that has always concerned Americans, as our country was intentionally founded with specific ideals. We know the reasons the American Revolution was fought and we know the debates involved in forming a new country. The first action was to declare independence and the second action was to create a constitution, a declaration of purpose for our society.

We don’t have to speculate about this. We can go back so as to read the words of the Founders and understand the context of events. There are many aspects of original intent that can be fairly debated and upon which honest disagreement can be had, but constitutional personhood for corporations is not one of them.

* * * *

The following are links to some videos of debates, some defenses, and some criticisms.

The debates are particularly significant, especially the second link down. My purpose for writing this post was specifically to assess the opposition and their arguments against Move To Amend. If you listen to the debates, keep my three points in mind. Listen for what isn’t being said and is being talked around.

http://intelligencesquaredus.org/debates/past-debates/item/1141-individuals-and-organizations-have-a-constitutional-right-to-unlimited-spending-on-their-own-political-speech

http://www.amendmentgazette.com/2012/06/13/proposal-analysis-move-to-amend/

http://waliberals.org/taking-on-critics-of-move-to-amend/2012/02/18/

http://www.truth-out.org/news/item/6296:activist-primer-the-nittygritty-on-the-amendment-movement-to-defeat-citizens-united#

http://www.religiousleftlaw.com/2012/09/free-speech-for-people-v-move-to-amend.html

http://www.npr.org/2012/01/20/145505442/new-republic-the-wrong-way-to-fix-citizens-united

http://www.commonblog.com/2012/01/20/the-best-way-to-fix-citizens-united-is-a-constitutional-amendment/

http://www.wsj.com/articles/SB10001424052970204468004577165281345369336

http://www.skepticaleye.com/2010/01/move-to-amend.html

http://bearingdrift.com/2012/01/27/move-to-amend-wants-to-limit-your-freedom-of-speech/

From Articles of Confederation to the Constitution

I’ve become increasingly fond of or at least seriously curious about federalism. I’ve often been attracted to libertarianism, albeit more leftist versions, which relates to federalism and states rights (also, the paired concepts of republicanism and democracy). What got me thinking more about federalism over the years are my ongoing studies of regionalism from the colonial era to the present. The distinctly separate colonies set the stage for both regionalism and federalism.

One thing that increased my interest in federalism is its relationship to the Articles of Confederation. This past year I learned that the Articles of Confederation had largely been the creation of John Dickinson, a Quaker-raised colonist and reluctant revolutionary from the Middle Colonies. The Middle Colonies created the theoretical justification and the practical working model for uniting the colonies into a single “United States” (or actually isn’t that plural?). The reason for this is that only the Middle Colonies had a regional culture of multiculturalism which meant there was a ready made vision and operating political system of balancing unity and diversity (Diversity within unity? Or unity through diversity? Or Both?).

When the Articles of Confederation needed improvement, the founders set about creating a constitution. However, the original intent was to create a constitution that would improve on the Articles of Confederation, not replace it. The first mistake of American politics was the creation of a constitution that did replace it and, one could argue, that mistake has led to an endless cascade of problems ever since.

The federalist support of the American Constitution came to be seen as opposite to and opposing of the anti-federalist position, but some of the anti-federalists weren’t against a constitution in principle or even against federalism in principle. They were against a federalist constitution that went contrary to the vision that motivated and justified the revolution.

Federalism, unlike it’s often been portrayed, wasn’t inherently in contradiction to the Articles of Confederation. It supposedly wasn’t meant to create a new nation-state or empire in the style of European countries, but that is what it later came to mean or anyway those were the consequences, intended or unintended. Federalism versus Anti-Federalism was a question of the balance between localized and centralized governance, not a question of a federal government ultimately being able to trump state governments in all matters. The role of the federal government was to mediate and moderate between the state governments, not to act completely independent of state governments. We long ago lost that notion of balance and moderation.

The anti-federalists argued that they were the true federalists. “Another complaint of the Anti-Federalists,” as the Wikipedia article explains, “was that the Constitution provided for a centralized rather than Federal Government (and in the Federalist papers James Madison admits that the new Constitution has the characteristics of both a centralized and federal form of the government) and that a truly federal form of government was a leaguing of states as under the Articles of Confederation.” The anti-federalists have been proven correct in their fears and warnings.

John Dickinson,who some consider to be a moderate federalist despite his being the main author of the Articles of Confederation, described his ideal constitutional government in his Fabius Letters. He explained that, “a territory of such extent as that of United America, could not be safely and advantageously governed, but by a combination of republics, each retaining all the rights of supreme sovereignty, excepting such as ought to be contributed to the union; that for the securer preservation of these sovereignties, they ought to be represented in a body by themselves, and with equal suffrage.” Whatever the United States has become, it certainly couldn’t be described as a “combination of republics” or rather, one could say, a confederation of republics. We’ve strayed far from that vision.

This confederation-based federalism wasn’t immediately destroyed by the Constitution that empowered the slave aristocracy and the capitalist plutocracy, but the seed of its destruction was planted within it. Soon after the signing of the Constitution, factions were already forming to take control of the federal government. Various factors gave the Southern colonies great power that extended into the early federal era. This allowed the Southern states to initially take control of the federal government. This power led them to try to force their social order and their slave laws onto the rest of the country. This angered the residents of the non-slave states and the settlers in the territories who had little desire to become slave states. Thus federalism died at the hands of the slavocracy and plutocracy. Those who rule with concentrated power and wealth have a tendency to further concentrate power and wealthy… surprise, surprise.

The Northern alliance of states wrested control following the Civil War. Northerners then did the same thing to the South that Southerners, before the Civil War, had done to the North. Politics had fully become a game of power and factionalism. What came to rule was partisan politics, special interests, and big money lobbyists; thus, setting the stage for the following century. Still, this was just the inevitable results of the anti-confederation and anti-libertarian constitutional order itself that was built on oligarchy (i.e., slavery, political oppression, aristocracy, plutocracy, and class-based inequality). It took different forms as the country developed, but this basic social order remains to this day.

Most Americans don’t understand what was lost when federalism ended, especially when confederation-based ‘true’ federalism ended, and why the constitution was such a failure of political vision (or rather the success of the wrong political vision). Federalism was what made the American experiment so unique. Yet we’ve just become another vast empire.

In fact, we became a full-fledged empire the moment that Jefferson made the Louisiana Purchase, although the imperialist vision was present long before that (almost implicit in the early justifications of American independence as, in Paine’s words, “Small islands, not capable of protecting themselves, are the proper objects for kingdoms to take under their care; but there is something absurd, in supposing a continent to be perpetually governed by an island.”). From that point on, America began its steady expansion across the North American continent and its steady expansion by way of attacking independent nations/peoples and claiming their territory when possible (the attacks on Canada and on Cuba being two of the failures of this imperialist project). This has led America, like the colonial empires before it, to now have in its possession vast territories not just on a single continent but also on various islands, from incorporated territories such as Hawaii to unincorporated territories such as Philippines, Puerto Rico and Guam (a total of 6 inhabited unincorporated territories, 7 uninhabited unincorporated territories, and 3-5 depending on how you count former territories).

This colonial imperialism also has led America to be such a diverse country. It is ironic that those who praise America’s greatness because of its power often criticize the diversity that was the inevitable result of this imperialist project. You can’t have one without the other, as has been demonstrated with every great empire that has ever existed from the ancient empires of Rome and Hellenistic Greece to the later colonial empires of Spain, France, Netherlands and Britain.

Federalism allowed for a different kind of unity within diversity. The Southern colonies and later states favored monoculture that was strictly forced by a hierarchical social order. Some of the Northern governments/elites, however, embraced, encouraged and/or tolerated multiculturalism. Early federalism allowed these regional governments to have a fair amount of local control over their respective immigration policies, along with local control of their own ports and borders. It was the failure of federalism that led to proposals of secession. It wasn’t just Southerners that sought secession but also Northerners as well.

Even as federalism failed, the conditions that made it possible continue to exist.

Now that we have an empire, we can’t easily reverse the path we’ve taken. We could give independence back to the Native Americans, the Southwestern Hispanics, and the various island peoples. We could do that, but at this point many of these individuals and communities feel as American as the rest of us and they likely don’t want to have their American citizenship taken away from them.

A better solution would be to re-create confederation-based federalism by returning some of the power to local governments, local communities, and local populations. If Southerners want to be xenophobic, then let them be as xenophobic as they want within their own state boundaries. But I don’t want Southerners forcing their xenophobia onto me nor forcing onto me their fundamentalism and elitist class-based social order. Also, I don’t want to force my Midwestern values onto anyone else. Just let us Midwesterners do our own thing. I say let every state and every region do what it wishes, within some basic limits along the lines of the model of the Articles of the Confederation. Some states would choose to have tightly controlled borders and some open borders, some more democratic governance and others less so, some more capitalist and others more socialist, some with tough-on-crime laws and others full of a bunch of pot-smoking hippies getting gay married, and all of that would be perfectly fine.

Since some people are so obsessed about original intent, let us do what was originally intended. Let us make a constitution that improves upon, rather than replaces, the Articles of Confederation.

One context for my thinking is, oddly, the movie Hunger Games: Catching Fire. I thought this movie would be a fun note on which to end.

In that fictional world, there is a central government that has come to gain control over all the people. The different regions, I’m not sure how large, are divided up into districts. It seems these districts are relatively isolated, either geographically or by carefully controlled borders.

It is standard divide-and-conquer strategy. One of the ways this division is maintained is by the Hunger Games. These annual contests served a similar diversionary purpose as American elections. Everyone obsesses over who is going to win, but no matter who wins nothing is essentially going to change for those in power remain in power (or rather those behind the power remain behind the power).

This division of districts reminds me of all kinds of divisions in America. It was the regional divisions that led to the local political factions to seek to take over the centralized ‘federal’ government and enforce their political will onto the entire country. I was the formation of political parties, of which Washington warned about, that led these regional factions to become so nationally powerful. It was the divisions of religion, race and ethnicity that served as constant distraction and animosity among the lower classes which were then manipulated and exacerbated by the upper classes in consolidating their own power.

A centralized government only ever serves the interests and agendas of those with centralized power and wealth. Also, it is the centralized government that allows the continued centralization of power and wealth. Generation after generation, this has led to an ever-growing Establishment of hereditary plutocracy and political family dynasties.

The states no longer act as independent or even semi-independent republics. They are no longer functioning ‘states’ for they have fully come under the control of the federal government. This isn’t just about states rights for that can simply mean power centralized in the state governments. Self-governance is also about individuals, all individuals (lower classes and minorities included). Self-governance is also about communities which means a society built on individuals, families, churches, neighborhoods, militias, grassroots organizing, and actually functioning democracy.

We Americans aren’t as far away from the Hunger Games as we might like to imagine ourselves to be. Certainly, the post-9/11 centralization of power has brought us closer to such an extreme dystopia or else some other variant (e.g., The Handmaid’s Tale). Worse still, so many Americans have bought into the propaganda that, if we just fight for our faction (our race, ethnicity, religion, or whatever), we will finally have the America we want and the America we like to project onto the past. As with the Hunger Games, it is a vision of the ultimate win-lose scenario where the only way our faction can win is for all other factions to lose. This isn’t a road to unity, whether with diversity or not. Instead, this is the road to oppression and a second revolution.