liberals, conservatives, and love of the Constitution

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Reverence for our written Constitution is a highly unusual feature of the political culture of the USA, sometimes verging on a civic religion. Teaching students to hold the Constitution in high regard is also an unusually prominent purpose of civic education in this country. And of course, our Constitution is the oldest in the world and (to the best of my knowledge) the one least subject to change, which means that it has run as a cord through our whole history since 1788.

According to a 2011 Time/Abt SRBI poll, which is the most recent survey I have found, 64% of Americans believe that the Constitution has “held up well” and doesn’t need change.

That is a majority, but not an overwhelming one, and opinions differ by ideology. According to the same poll, 62% of Republicans are “strict constructionists,” believing that the constitution should be interpreted according to the framers’ original intent. In contrast, 67% of Democrats favor “flexibility.” And Democrats are more open to the idea of a new constitutional convention to change the document.

I would challenge the presumption that conservatives do (or should) like the Constitution more than liberals do. One could argue that everyone reads the document selectively, with some favorite parts and other sections that we would rather delete if we could. Conservatives are enamored of the list of enumerated powers, the Second Amendment, and the Tenth Amendment (among other passages). Liberals are more excited about the Necessary and Proper Clause, the First Amendment, and the Fourteenth Amendment. Many liberals have acknowledged that they would get rid of the Second Amendment if they could. But some strong conservatives would like to repeal the Sixteenth Amendment (allowing the income tax) or even the Seventeenth (direct election of US Senators). Candidates Trump, Paul, Santorum, Graham, Christie, Carson, and Jindal, and (less consistently) Kasich and Walker have said that they would end the birthright to citizenship that is central to the Fourteenth Amendment. That hardly reflects reverence for the document as it is today.

At the same time, I would criticize the bipartisan tendency to constitutional piety and the way that it restricts our constitutional imaginations. There are many reasons to think the document is flawed. Just to name one, the separate election of presidents and congresses is a recipe for gridlock or even for constitutional crises, averted so far mostly because our parties didn’t polarize ideologically until the end of the 20th century.

James Madison made sure to study the experience of as many republics as he could before he traveled to Philadelphia to begin writing the Constitution. No one who undertook a similar study nearly 250 years later would design a constitution with a powerful, separately elected president; and actual new democracies never copy our design nowadays.

Another flaw is a set of massive omissions. The real political system of the 21st century is characterized by corporations, political parties, permanent military and security agencies, and a very large administrative/regulatory state. The Constitution is silent on all of those institutions. The Citizens United decision did not–contrary to received opinion on the liberal side–define corporations as people, but it did treat them as regular associations under the First Amendment. Parties and unions also get lumped together as associations because they are not otherwise recognized in the text of the Constitution. And since the Pentagon, the intelligence agencies, and the regulatory state are missing, courts struggle to understand these entities as creatures of the legislature that are lodged within the executive instead of branches of government with their own powers, perils, and limitations.

If you are a libertarian constitutional originalist, you have a clear and simple solution to these omissions. Get rid of the regulatory state, which isn’t an enumerated power of Congress and which unconstitutionally delegates legislative power to unelected executive branch staff. Once the federal government is unable to regulate, corporate political power will become unimportant because there will be little to lobby on. That is a consistent view, and it reinforces enthusiasm for the text of the Constitution, which becomes the basis for a radical reform movement. But no one has ever seen a globalized corporate economy without a regulatory state. I am not sure it is possible; I certainly doubt that it would be desirable or popular.

Assuming, then, that we will continue to have people like party leaders, lobbyists, spies, and regulators, their powers and limitations should be addressed in the Constitution.

More generally, to imagine improvements to a society’s constitutional order seems an important form of citizenship. Even for children, it is interesting and valuable to debate changes in the Constitution or whole alternative documents. Adolescent and adult activists should be free actually to pursue such changes. Our constitutional piety has advantages (reinforcing the stability of our system, restraining certain kinds of populist excess, and providing a superior alternative to ethnic nationalism), but it badly restrains acts of constitutional imagination that should be part of active and creative citizenship.

See also constitutional piety, is our constitutional order doomed?, are we seeing the fatal flaw of a presidential constitution?, on government versus governance, or the rule of law versus pragmatism; and the visionary fire of Roberto Mangabeira Unger.

latest thoughts on animal rights and welfare

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When we stand to affect another person or animal, at least four moral considerations seem potentially relevant:

  1. The creature’s suffering or distress versus its happiness, contentment, or satisfaction.
  2. The creature’s sense of meaning, purpose, and agency.
  3. The creature’s ability to live in its natural way or to be itself. And …
  4. The impact on other creatures that know and care about the creature that we are directly affecting.

The first consideration is relevant to all sentient beings in proportion to their capacity for sensation and experience. Perhaps a clam cannot suffer appreciably. But there is no reason to think that we human beings are the most sensitive of all creatures–or at least, not by much. And since the first consideration applies to most other animals, it is wrong to reduce their happiness or increase their suffering.

A more difficult question is whether a sudden and painless death reduces happiness. On one account, the net of a creature’s happiness accumulates like a running tally over the life-course. In that case, a painless death freezes the score permanently in place, which can make the total higher than it would have been if the future would have been less happy than the past was. A different views is that a creature has no happiness or suffering at all after death, and therefore death has no impact on happiness. In Epicurus’ phrase, “Death is nothing to us.” I am dissatisfied with both views but not sure that I have a better proposal. Certainly, happiness has a temporal aspect, because suffering on one day lingers on the next. But I struggle to say what impact ending a life has on the creature’s happiness.

The second consideration depends on an ability to make meaning or sense of one’s life and to make consequential choices according to one’s sense of purpose: in a word, “agency.” I am not committed to the premise that agency is a capacity of human beings alone, but we certainly have a very advanced version of it. Note that this capacity is temporal: we make meaning by putting our present state and our current choices in a longer narrative that includes a past and a future. One reason that killing a human being is badly wrong is that it ends the narrative that the person is constructing and thereby destroys her agency. I don’t think the same argument applies to the instantaneous and painless termination of the life of a chicken.

The third consideration–naturalness–seems to apply most to creatures that are not human beings. If possible, a bear should be left alone to live as a bear. Our family dog would not be better off if he were left in the woods to fend for himself like coyote, but he should be able to live the life natural to a domesticated dog, with activities like walks and cuddles. And as for a cow–I am inclined to think that its natural state must include time grazing in a field and nursing a calf. I am not sure that suddenly being slaughtered violates its ability to live a natural life. That means that factory farming is unacceptable but family farming may be consistent with respecting the natural states of farm animals.

As for human beings, we are also natural creatures in the sense that we are an evolved species with many innate limitations and tendencies. But we are capable of reflecting on the whole range of our inherited traits and distinguish the better from the worse. We have a natural proclivity to altruism but also to aggression, even to rape and murder. For us to live according to nature is not nearly good enough. We build institutions and norms to change our inherited natures for the better. That forfeits a right to live naturally and makes the third consideration irrelevant to us.

The fourth consideration applies to any animal that cares for another. In the old Disney cartoon, the death of Bambi’s mother deeply hurt Bambi. Although the cartoon anthropomorphized its animal characters, Bambi’s emotional reaction seems plausible enough for a deer. Still, people may be unique in that our relationships with other people are mediated by language and other forms of communication. We can suffer–or have our sense of purpose and agency frustrated–by learning of the death of someone we have never even met. In contrast, if Bambi had not directly experienced his mother’s death, he wouldn’t have suffered from it.

Freedom is certainly a moral consideration as well, but for human beings, it has a lot to do with #2 (purpose and agency), whereas for animals, it is related to #4 (naturalness). For a person, to be free is to be able to live according to her own sense of purpose. But a bear is free if it’s left alone to be a bear.

What all this means: Intentionally causing the suffering of another creature is always wrong, albeit a wrong that should be balanced against other considerations. Reducing the ability of a non-human creature to live naturally is also a wrong, at least ceteris paribus. But that is a complex question when it comes to farm animals. Killing a person is a special evil because it not only causes suffering but it ruins the purpose and agency that came from that person’s ability to plan and foresee the future. Furthermore, the impact on other human beings of killing a given person is particularly deep and widespread. This is one reason that it is badly wrong to kill even a human being who does not have much agency, such as a neonate. Killing an advanced animal painlessly and suddenly (beyond the sight of its kin) does not necessarily violate considerations #3 or #4. It may violate #1, depending on how we understand the temporal dimension of happiness and suffering. And it may violate #2, but only to the degree that other advanced species have capacities for long-term planning.

See also my evolving thoughts on animal rights and welfare.

why I stand with Ukraine

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(This was written in Lviv, Screen Shot 2015-08-05 at 9.59.44 AM but posted in Cambridge, MA).

We all receive moral and political inheritances. Although the stories of our ancestors are not equally attractive, we all have exactly the same responsibility: to recognize our whole birthright, to address the shameful parts, and to use the best aspects of our histories to improve the human condition. I observe influential Ukrainians doing that very well right now, while the leaders and dominant voices in Russia do it very badly. And that is why I believe it is essential that Ukraine prevails.

1.

Seamus Heaney’s narrator seeks admission to the “Republic of Conscience.”

At immigration, the clerk was an old man
who produced a wallet from his homespun coat
and showed me a photograph of my grandfather.

Note: the immigration clerk does not show a picture of the would-be entrant, but rather of her or his grandfather. The photo symbolizes the past that we each must carry–both for good and ill. We cannot shed that inheritance without also renouncing all the other ways that our past has shaped us, including even the language with which we think.

The past also gives each of us gifts, and conscience demands that we offer them to humanity:

The woman in customs asked me to declare
the words of our traditional cures and charms
to heal dumbness and avert the evil eye.

It is tempting for an outsider to evaluate the inheritance of a given people and to draw comparative moral judgments about them as a whole group. Canadians born a few miles north of the US border are dealt a hand without the cards for slavery and genocidal settlement that I carry because I was born not far south of that same border. In that sense, at least, the Canadian inheritance is better.

I am not a relativist; I would insist that some political histories and cultures are superior to others. But there are two reasons not to focus on comparative judgments of this kind. If the inheritance of a people is largely evil (which I would not say of the US, by the way), it is too easy to ignore that people’s potential for doing good in the future. And if their inheritance happens to be largely innocent, it is naïve to assume that they will continue to act well once they obtain power.

2.

I have been visiting a country at war. To the east are people who call themselves “Russians.” They carry a thick book of history. One way to make sense of it is to say that the story began in the late 800s in Kiev. That does not imply that Kiev rightly belongs to Moscow today (the reverse would actually be more logical), but some Russian nationalists have drawn that inference. In any case, what followed after Kievan Rus has been–in this version–a long story of patriotism, suffering, military valor, victory under strong rulers, defense of Orthodoxy and other orthodoxies, and resistance to the decadence of the west and south. This is Putin’s way of playing the mixed deck that history handed him.

But it is not the only way. One could tell a story in which the diverse peoples who live within Russia are constantly being oppressed by bloodthirsty rulers from the capital, yet they show a special gift for turning their suffering into witness, resistance, and empathy. Then the best cards in the hand show Decembrists, Turgenev and Pushkin, and Akhmatova and Sakharov, and the worst show Stalin or the Tsars.

Ukrainians have also been dealt a vast and varied deck. One would have to give a different list for any Ukrainian city, but Lviv has been part of at least the Halych-Volyn Principality, the Kingdom of Poland and the Polish-Lithuanian Commonwealth, the Habsburg, Austrian and Austro-Hungarian Empire, the West Ukrainian People’s Republic, the Republic of Poland, the Soviet Union, the Third Reich, the Ukrainian Soviet Socialist Republic, and the Republic of Ukraine. Lviv can count among its famous citizens the Polish saint Józef Bilczewski, the German-Jewish-Israeli philosopher Martin Buber, the Austrian-American economist Ludwig von Mises, the Ukrainian national poet Ivan Franko, and Muhammad Assad, born Leopold Weiss, who translated the Koran into English and played a role in the founding of Pakistan.

A modern Ukrainian can play these and many more inherited cards in many ways—and can even decide whether or not to identify as a Ukrainian in the first place.

One important and influential group of modern Ukrainians views their inheritance thus: They are a pluralistic people, drawing from many roots. All of the residents of Lviv named above are part of the Ukrainian story. Ukrainians of all backgrounds have flourished best under governments that have been explicitly pluralistic, even when the center of gravity has lain far away, in the Polish-Lithuanian commonwealth or in Austria. That is one reason the European Union seems so attractive to Ukrainian protesters that some carried the EU flag into fatal conflicts with the police.

They also have a tradition of republican self-government that began in Kievan Rus, when the people held assemblies called veches to elect their leaders. The tradition reemerged in the Polish-Lithuanian commonwealth, the Cossack states, the late Austrian empire (when there was a Galician parliament in Lviv) and the two Maidan uprisings, when the impromptu meetings were again called veches.

Yes, some Ukrainians were complicit or even aggressively active in pogroms, slave raids, oppressions of serfs, the Shoah, and communist atrocities; but these are inheritances that the modern republic can explicitly acknowledge and mourn.

Meanwhile, I do not currently observe an influential movement of the same type in Russia, one that tries to make the liberal, pluralistic, and humane traditions of that country central while treating militaristic machismo as a threat to the Russian people and peace. A fine article by Karine Clément gives some insight into brave Russian organizers who are creating valuable spaces for democratic engagement; but the date of that article is 2008, and the subsequent seven years have been hard ones.

3.

The reason that liberals are influential in Ukraine and vanishingly marginal in Russia is not that Ukrainians are superior to Russians. No people is superior, and in any case, the differences in their current situations can probably be traced to local and recent contingencies, such as the greater efficiency of the Russian security and media agencies and the flood of petrodollars that fund them. But the fact remains that Ukrainians who are cosmopolitan, liberal, and republican hold considerable power in their country, and there is nothing similar right now in Russia.

It is a deep disappointment that, seven decades after the Second World War, so much of the world is dominated by regimes that are militaristic, authoritarian, and nationalist, devoted to the cult of the strong (male) leader, and content to combine kleptocratic crony capitalism with state repression. One could mention Xi Jinping, Nerendra Modi, Recep Tayyip Erdogan and many more along with Putin–and American voters are not immune to similar attractions. But Ukraine is a place where civil society has confronted the authoritarian wave and now has a chance to prevail.

And that is why I stand with the Ukrainian people and believe that their country is a front line in our era’s struggle for democracy and human rights.