Tuesday, February 7, 2012

The Most Offensive Thing I've Ever Read

It suddenly got cold in North Dakota today, with wind chills near zero this morning. So I guess it's as good a time as any to read something to make your blood boil. This article in the New York Times claims that the U.S. Constitution is losing its influence.
In 1987, on the Constitution’s bicentennial, Time magazine calculated that “of the 170 countries that exist today, more than 160 have written charters modeled directly or indirectly on the U.S. version.”

A quarter-century later, the picture looks very different. “The U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere,” according to a new study by David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia.
No, that isn't so galling. After all, what difference does it make what constitutional model burgeoning democracies use? No, what's galling are the critiques of our Constitution contained within that supposedly show "what's wrong with it".
The United States Constitution is terse and old, and it guarantees relatively few rights.
Funny, we always hear how young America is, especially compared to our societal betters in Europe's old democracies. Now suddenly, we're too old. And, "life, liberty, and the pursuit of happiness" doesn't seem small to me.
In an interview, Professor Law identified a central reason for the trend: the availability of newer, sexier and more powerful operating systems in the constitutional marketplace. “Nobody wants to copy Windows 3.1,” he said.
The implication here is that our constitution doesn't work anymore and should be replaced. After all, that's what you do with an old operating system, right? Our constitution is more like a poem by a laureate or a painting by a master. It endures. It's still around because it works so well. It hasn't been replaced because frankly, there isn't anything better.
The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.”
To keep the computer analogy alive, that's a feature, not a bug. If a constitution can be changed at a whim by whatever group manages to get power, it ceases to be a document that enumerates the powers and rights of a citizenry and becomes just another tool for those in power.
Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.
We don't protect the presumption of innocence? That statement is so utterly false that there's really nothing else to say. Well, except this. The Constitution may not say "in so many words" that the accused is innocent until proven guilty. The law does say that however. And, as we'll see shortly, the author is very enamored with the idea of a judiciary expanding rights that aren't explicitly spelled out in a constitution, at least when Canadians do it.

The rest of that quote gets to the heart of some people's problem with the constitution. It doesn't list things like food, education and healthcare as rights. Well, that's because they're not. To borrow my own words: we have laws to define acceptable behavior in a society and to convey privileges (or restrict said privileges). Rights are things we can never envision or support being taken away.

There's a good reason the our constitution doesn't list every possible right. It's because the framers knew that was an impossible task. The very reason so many "newer" contitutions are easier to amend is because they attempt this impossible task. Just when they think it's perfect, along comes some new technology and, boom! New "right" coming through. Notice that even the NYT article uses the word "entitlement" to describe food, education, and healthcare.
It has its idiosyncrasies. Only 2 percent of the world’s constitutions protect, as the Second Amendment does, a right to bear arms.
I love that something so fundamental as a right to defend yourself through force of arms is labeled an "idiosyncracy". Guess we know where the author stands on gun control.

The author however, does love the Canadian Charter:
The Canadian Charter is both more expansive and less absolute. It guarantees equal rights for women and disabled people, allows affirmative action and requires that those arrested be informed of their rights. On the other hand, it balances those rights against “such reasonable limits” as “can be demonstrably justified in a free and democratic society.”
"We hold these truths to be self-evident. That all men are created equal." Sounds pretty expansive (the use of the royal "men" notwithstanding) to me. Also, the author is being disingenuous with the phrase "more expansive and less absolute". What that really means is that the Charter puts far more limitations on things like freedom of speech, religion and assembly than the U.S Constitution and relies on the courts to broaden those rights, which was somehow a problem with the U.S. Constitution.

It should also be noted that the Times author is conflating the Charter with a constitution. The Charter is actually analogous to our Bill of Rights, which makes the next bit especially confusing.
There are, of course, limits to empirical research based on coding and counting, and there is more to a constitution than its words, as Justice Antonin Scalia told the Senate Judiciary Committee in October. “Every banana republic in the world has a bill of rights,” he said.

“The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours,” he said, adding: “We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!”
The author wants this passage to read as though the Bill of Rights is somehow lessened by the actions of totalitarians in other countries. "Oh, the Bill of Rights," he seems to be saying, "the Soviet Union had one of those!" The Bill of Rights may be just paper, but so is the Canadian Charter. So is every constitution, everywhere.

It's a bit disengenous to try and tie the Bill of Rights' worth to that of the old Soviet Union. Is there really any comparison to how those rights were treated under the U.S.S.R. and the United States?

And, if as the author asserts, these are just pieces of paper, then what purpose does his article serve? Besides making my blood boil, that is.


  1. Not to nitpick, but "We hold these truths to be self-evident..." and "life, liberty, and the pursuit of happiness" are both from the Declaration of Independence, not the Constitution.


  2. True enough. But the Constitution was written on the basis that those sentiments were self-evidently true. Plus, when I originally read the article, I couldn't believe how angry it made me. So I can also plead temporary fugue.

  3. What is your legal training? You seem to think you know a lot about the Constitution.

    1. 1. What is yours?

      2. A lack of legal training didn't affect the author of the NYT piece, who spent a lot of time interviewing non legal-scholars to write a hatchet job on the U.S. Constitution.

      3. How do you know what I know about the Constitution? Are you able to refute anything I've said, or are you just going to drop a snide remark as "Anonymous" and slip back into the aether?

    2. 1. I'm in law school, taking my third semester of con law. We discussed this article at length yesterday. The overwhelming majority of my classmates--as well as my professor, who is, ya know, a constitutional scholar--agreed.

      2. Disagreement with the article does not a hatchet job make. And the authors of the peer-reviewed article that this Times piece is in reference to are scholars.

      3. While we are a relatively young country, our Constitution is the oldest in operation in the world. So while we are young, the Constitution is not.
      a. "Life, liberty, and the pursuit of happiness" is nowhere to be found in the Constitution.
      b. Where are the guarantees of a speedy and public trial in the Constitution?
      c. That the right to protect oneself with arms is "fundamental" is not universally accepted.
      d. "We hold these truths to be self-evident. That all men are created equal." (see, (a))
      e. It should be noted that Jay W. is conflating the Declaration of Independence with the Constitution.
      f. Scalia made the comment about the Soviet Union, not the author. And he was being ironic.
      g. Scalia made the comment about "just a piece of paper." Again: irony.

    3. 1. Congratulations. I orginally being from the South, I have heard of FAMU, but didn't know it was a law school.

      2. It's not a hatchet job because I disagree with the author's views. It's a hatchet job because he starts from a perception -- the Constitution's influence on constitutional documents in other countries is waning (which may or may not be true) -- and talks to sources who back up that assertion without quoting anyone who might disagree with his viewpoint. Note that none of these sources is a "constitutional scholar".

      3. The country is young but the document is old. That makes no sense whatsoever, and is exactly the sort of tortured logic the NYT author uses.

      3a. True. Please read my reply to the first commenter.

      3b. There are none, per se and never claimed it did. Here is what I wrote:

      "The Constitution may not say 'in so many words' that the accused is innocent until proven guilty. The law does say that however. And, as we'll see shortly, the author is very enamored with the idea of a judiciary expanding rights that aren't explicitly spelled out in a constitution, at least when Canadians do it." Later I described the author's sudden reversal on the idea that constitutions needs to spell these things out when it came to the Canadian Chaarter. That's another example of that twisted logic.

      3c. The idea that women should have equal rights to men is not universally accespted either. What is your point?

      3d. See a.

      3e. See a. And also note that while you use that against me, the author's issues (and he a *professional journalist* and all) don't faze you.

      3f. In another words, the author was using Scalia's words in a different context than was intended to prop up his thesis. I already knew this, but I'm glad you saw it too.

      3g. See 3f.