Tag Archives: Constitution

Cows in the Corn

Suppose you’ve got corn and I’ve got cows.

Even if we’re the best and friendliest of neighbors, we need a fence between us. And suppose that, despite the fence, my cows get across and eat your corn. I say, “Just put the cows back. There’s no problem.” The cows get across again, and I say, “Cows used to stay where you put them. I don’t know what’s wrong with cows these days. Anyway, put them back. There’s no problem.”  And then the cows get across again, and I say, “Well they wouldn’t get across so often if you didn’t plant your corn so close to the edge of the field. You can’t really blame the cows when you tempt them so. But just put them back. There’s no problem.”

How many times can this be repeated before we admit we have a problem? We can blame the cows for a while.  We can blame the victim for a while. Heaven forfend, we could even blame me because the cows are mine. Sooner or later, we need to admit to each other that the fence isn’t good enough to do the necessary job it was intended for.


Constitution Day (Sept 15th) is set aside each year to remember America’s foundational law. On that day in 1787, delegates from the 14 states (the original 13 plus Vermont) approved the new Constitution after a year-long debate. It has been amended 27 times, but hasn’t changed fundamentally in 228 years.

We were taught in school that the “separation of powers” is a great concept. The Constitution divides power between the legislative, judicial and executive branches, and consequently America has never had a king. But the Constitution doesn’t distribute power much. It keeps it in Washington DC, far from the people. If you read the Constitution you’ll see that the document is almost entirely about federal powers. The states and the people are mentioned once.

The Constitution defines federal powers, but doesn’t do much to limit federal power. The authors weren’t concerned with limiting federal power, but with fixing the very weak central government that existed at the time. They gave the new Constitutional federal government some blank checks, such as the “necessary and proper” clause in Article 1:

The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


James Madison

By 1791 (just four years after the Constitution was adopted) James Madison was convinced that the necessary and proper clause was too vague and gave the federal government too much power. Subsequent history has proven him right. The necessary and proper clause has been used many times to justify expansion of the federal government.

We were taught in school to admire the extraordinary wisdom of the founding fathers. If the founders were wise we ought to heed what they said. And like Madison, many of the other founding fathers doubted the Constitution would endure. Benjamin Franklin was asked as he emerged from the final session of the Constitutional Convention what sort of country the US would become. Franklin answered, “A republic, if you can keep it.”

Thomas Jefferson said the country would need a new constitution every generation or so: “Every constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force, and not of right.”

According to Jefferson’s figuring, America ought to be on its 12th constitution, but we’re muddling along with the same old one long after its expiration date. As president, Jefferson had a “take it or leave it” attitude toward the Constitution. He waged war against Barbary pirates in 1801 without a congressional declaration of war. He exceeded his authority to make the Louisiana Purchase. He never let the Constitution get in the way what he thought was right.

[Source: CBS St. Louis]
The founding fathers despised political parties. John Adams spoke for many when he wrote, “There is nothing which I dread so much as a division of the republic into two great parties. . . This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution.”

Who can deny that America today is run by two great parties? Thus, the thing the founders dreaded most has happened!

The Constitution purposes to make “a more perfect union” and to “provide for the general welfare.” But income inequity in American is wider than at any other time in living memory. There has been no improvement in purchasing power for the median American family over the past 30 years, and only slight gain in the past 50 years. (See chart below) One out of seven Americans lives in poverty. Two out of three Americans think the country is moving in the wrong direction. Only one American in 10 trusts the Congress. The Constitution didn’t cause these problems, but it hasn’t “provided for the general welfare” either.


[Source: US Census Bureau via Huffington Post, 9/16/15]

We like to think of the Constitution as the rock-solid foundation of our culture and society. A more apt metaphor would be a tree. The small seed that was planted in 1787 has been harried by winds from the left and the right, and frazzled by pests of various kinds. It still stands, but it has grown gnarly.

Some branches of the tree are strong. The first amendment freedom of speech keeps pornographers and the Westboro Baptist Church in business. Upholding extreme opinions is really the only thing the first amendment does, since ordinary opinions don’t need such protections. I’ve lived much of my life in parts of the world where no explicit freedom of speech exists, and I found that ordinary people there have their opinions just like we American do.

Another strong branch of the tree is the second amendment, keeping the bullets flying. This is perhaps the most clear-cut case where the Constitution stands in the way of what the American people reasonably would do if they were free to govern themselves.

Much of the Constitutional tree has weakened over the years. The Fourth Amendment guarantees “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” That’s what it says on the document, but the NSA reads your emails. And even if government snooping were stopped, there are private companies that also read your email and monitor your spending in order to target advertising at you. The fourth amendment guarantee is empty.

The 5th amendment situation is even worse. It is supposed to ensure due process in order to defend freedom and property, but it has been stood on its head to justify driving people out of their homes to benefit commercial developers.

The 10th Amendment guarantees that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This sounds like a useful tool to balance local interests against the federal power. And there is a movement of people calling themselves “Tenthers” who say strong enforcement of this clause can fix what’s wrong in Washington. But how can the tenth amendment constrain federal power when every question about the limit of federal power gets decided by an agent of federal power?

Setting the country on the right path must begin with changes to the Constitution. That hasn’t happened yet, but it is becoming a more common notion. State legislators vote their support for a new constitutional convention in most years.

Many people fear tampering with a “good thing.” Writing a new foundational document needn’t jeopardize all that we value. We can keep majority rule. (Or perhaps I should say “reinstate” majority rule, since we don’t really have that now.) We can strengthen individual rights. We can limit the federal government to doing a few important things well instead of muddling everything. We can put most decisions back in the hands of states and communities.

Of course, there’s a huge and fascinating question of how this tremendous change could take place. For starters, I would recommend “Anywhere but Washington; anyone but congress.”

Some people say we just need to get back to the Constitution as it was written. But everything that happens in America happens under that Constitution. Amateur interpretations of what the law “says” don’t have much influence while big money pours into Washington and while the inmates run the asylum.

Georgetown Law Professor Louis Michael Seidman wrote in a New York Times editorial in 2012: “Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse.”

University of Texas Law Professor Sanford Levinson has written, “Our Undemocratic Constitution” showing how the document undermines democracy. Levinson refutes those who say anything wrong with the Constitution can be fixed by amending it, and he shows how small number of people (such as congressional committee chairmen) can thwart the will of the majority, and how certain institutions and processes make amending the constitution ever again unlikely. He points especially to the US Senate, where each state has two members regardless of its population. Since 34 votes are enough to block any legislation, the members from the 17 smallest states (representing only about 20% of the nation) can stop anything the majority wants. That isn’t democracy!

I agree with Seidman and Levinson. I agree with Madison, Franklin, Adams and Jefferson. Who’s side are you on?


I Can, Canoe?

Responding to the Supreme Court decision upholding the Affordable Care Act, President Obama declared that the purpose of government (he used the euphemism “public service”) is taking care of each other. His exact words included: “That’s when America soars, when we look out for one another, when we take care of each other. That’s why we do what we do. That’s the whole point of public service.”

I don’t disagree. But America also soars when government empowers people and then leaves them alone. My point here is pretty trivial. But I am thrilled by one particular government-insured freedom that I enjoy, and I want to talk about it. (Full disclosure: if it weren’t raining, I be out doing it instead of sitting here writing about it.)

Most rights we enjoy as Americans come with constraint. You can own and drive a car, but you have to pass a test and pay a fee first. You can march down the street shouting controversial slogans, but you have to get a permit first.  You can buy liquor, tobacco and other things that are bad for you, but only if you are a certain age.The Clash song, “Know Your Rights” provides a pretty accurate commentary about the balance between our rights and the hoops we have to jump through to exercise them.


And it is in contrast to these hemmed-in and whittled-down rights that my point comes in. Because our freedom to float down an American river in a canoe is vast and nearly unlimited. There is a long train of federal and state practices, policies, laws and customs surrounding inland navigation, and the effect of it all is an extraordinary freedom that is nearly unheard of in this “Land of the Free.”


Me and daughter Jenny on the Wabash River
Me and daughter Jenny on the Wabash River


Briefly, the highest laws in the land insist that people can use American rivers, full stop. Unlike most other human activities that come with the limits, prerequisites and fees mentioned by The Clash, inland navigation is truly free. You need a license to put a boat on a lake, but you need nobody’s permission to launch on a river. To understand this, we need to consider some of the specifics. The best brief source of information on this topic is this pamphlet from the National Organization for Rivers.

Rivers were tremendously important to the exploration and settling of America in the 17th and 18th centuries. To block a river was to hamper commerce and thwart the public interest. So the US has always insisted that rivers and streams be open to traffic. It is not that people can boat when and where government allows — but that people can boat on any river and government has nothing to say about it.

A court case dating back to 1874 found that, while (federal or state) government may create lists of waterways that it deems officially navigable, people are still allowed to go where they wish. If a boat floats, then the water it’s floating on is navigable whether the government says so or not.

Indiana has such a roster of officially navigable waterways. And there’s no harm in the list. But there’s no great significance either. Stretches of river that are not on Indiana’s list are navigable, too. If there is water, people may float. The people, in this one small area, are sovereign.

Does the rule saying boaters are free on the water also insist that they stay on the water and respect the private property alone the banks? Nope, the law doesn’t limit boaters to the water. It says they can use the banks, too, up to the high-water mark.


Campsite on the banks of the Wabash
Campsite on the banks of the Wabash


[R]ivers are subject to the federal navigational servitude, including the federal navigational easement for “the benefit of the public, regardless of who owns the riverbed.” This easement is similar to a utility easement or a rural road easement passing through private land. It includes public rights to portage around obstacles, rapids, or waterfalls, to engage in “sport fishing and duck hunting,” to walk on the gravel bars and beaches, and to walk above the high water line as needed when walking along the banks of these rivers. Landowner fences, cables, or “No Trespassing” signs across these rivers violate federal law, exposing the landowner to criminal prosecution as well as liability for wrongful death or injury.


All of this comes into law by way of the Constitution’s Commerce Clause. So you might expect it to protect barges carrying trade goods, but not fishermen and canoers. But, again, the law breathtakingly embraces all uses. The courts agree that the enjoyment of nature is a kind of commerce that should be protected. Nor is it protected only when money is changing hands. A man can put his own canoe in the water and float all day without paying anyone a dime. He’s free.

Each time I go for a float down Indiana’s Wabash River or Sugar Creek, I am grateful for this freedom. I am grateful for the majestic eagles above me, the startling Asian carp that leap out of the water right next to my head, and for the glimpses of deer, turtles, muskrats and other wildlife. I’m happy with the chance to exercise the skill I have to both propel and steer the canoe with a single balanced J-stroke. And I’m pleased with the chance to forget the clock for a few hours, which I do when I remember that around the bend that lies just ahead is another bend, and another and another and another. I know my ability to enjoy canoeing is based on accidents of good luck. I live in a place where water is plentiful, I can afford the gear, and I’m physically fit. But I’m nonetheless appreciative of government that stops landowners from stretching cables from bank to bank to stop me.

Now, as I said above, recreation is trivial. It is not as important as someone’s life, health, education, or safety. I would not judge government a success because it allowed me my canoe while it deprived others of more urgent needs.

I think the lesson here is that freedom and enjoyment are very high and worthy goals. The extraordinary freedom and enjoyment that I and others get from canoeing belies the arguments of those who say that getting government off our backs is necessary and or sufficient. Because often strong government makes freedom possible.


I’ll leave you with the wisdom of John Hartford:

Well I sure do love the Tennessee River, the Ohio and the Illinois
And I love the old Mississippi River, It’s a good old place for a boy
Just to step on board a steamboat, ride all the way to the sea
Where else but a muddy old river, would a person want to be?
Would a person want to be?





Recently there has been a series of very good, thought-provoking articles on the subject of America’s collapse. Not the collapse of the whole country, but of the system of government in Washington. The participants in the conversation aren’t predicting violence or economic collapse: not Road Warrior or Book of Eli. They are saying the way government works is not going to continue.

The articles are by smart young writers and they are all worth reading, but I’ll summarize them and then add my two cents.

(Source: Columbia Pictures)


Matthew Yglesias of Vox started the discussion on March 2nd with an article titled, American democracy is doomed. He starts with the conundrum that almost nobody seriously predicts collapse, but almost everybody is discontent with the way the country is headed. Yglesias focuses on two trends. First, Congress seems less and less capable of fulfilling its responsibilities. It fills its time with meaningless showcase votes, and punctuates its do-nothing calendar with occasional end-of-fiscal-year crises. Second, year by year presidents of both parties take on more power and authority than their predecessors had.

The breakdown of American constitutional democracy is a contrarian view. But it’s nothing more than the view that rather than everyone being wrong about the state of American politics, maybe everyone is right. Maybe Bush and Obama are dangerously exceeding norms of executive authority. Maybe legislative compromise really has broken down in an alarming way. And maybe the reason these complaints persist across different administrations and congresses led by members of different parties is that American politics is breaking down.


Yglesias provides strong evidence that the governmental balance of power is shifting. But his argument that America is doomed relies on academic writings and examples from Latin America. One might argue that those examples aren’t relevant to America. So Vox writer Dylan Matthews takes up the tale in, This is how the American system of government will die. He builds on Yglesias’ point about congressional dysfunction:

 The risk is that congressional gridlock — which will only worsen as parties polarize on ideological lines — will make major revisions to statutes and changes in the fiscal status quo next to impossible. Any president worth his salt is going to want to make major revisions to statutes and to alter the fiscal status quo. . . . So they’re going to gradually start using executive powers to adjust policy in those domains. President Obama has been very open about this.


And this trend, carried out over time, will lead to a much stronger  (and eventually unconstitutional) presidency. Matthews says that by 2050, the Congress will just be a rubber stamp to ratify what powerful presidents decide.

Oliver P. Morton in US Capital Statuary Hall

America has already seen an example, at the state level, of a complete executive takeover. Oliver P. Morton was Indiana’s governor during the Civil War. He was a fervent Union man. But after the election of 1862, he faced a state legislature that resisted much of his effort. So Morton locked out the legislature and ran the state and the war effort unilaterally (and illegally). Hoosiers re-elected the dictator to a new term in 1864. Today, Morton’s statue stands in Statuary Hall in the US Capital Building. H ewas effective and worked for good. But the way he did it certainly fits in Matthews’ idea of excessive executive power.

Jonathan Chait at New York Magazine online also responds to Yglesias. Chait agrees the imbalances and intractability are serious problems. But even so, There is a chance American democracy is not doomed. The problem as he sees it is ideological extremism that will go away on its own:

[T]he conservative movement’s control over the Republican Party is probably not sustainable. American conservatism’s power is deeply rooted to white American racial identity. That identity formed a plausible national majority for much of America’s history, but its time is rapidly slipping into the past. The steady growth of racial minorities is projected to continue for decades. Eventually Republicans will adjust to the new demography, which means they will have to abandon conservatism as we know it, which has only appealed to white voters in the context of racial polarization.


The next contribution to the conversation is from Ezra Klein, Vox’s founder. He argues, America’s political system isn’t going to collapse, It’s going to muddle through. Note, first of all, that “muddling through” is a technical term with a long and noble tradition going back to a 1959 essay by Charles E. Lindblom. I read it in graduate school, and Klein probably did, too. Klein argues, per Lindblom, that America has a genius for coping with lowered expectations.

 This isn’t a critique of the political system our Founders envisioned. It’s an admission that we are not in the political system our Founders envisioned. The Constitution was designed for a political system without organized parties, where senators were elected by state legislatures and where no one had ever heard of a filibuster. The system we have today is not the system the Founders believed they were building.


As to what “muddling through” means:

Much that needs to get done simply won’t get done. What does get done won’t be done well. Over time, the public will grow angry with this situation, but they won’t know exactly who to be angry at, nor how to fix it. It is hard to apportion blame for economic growth that should have happened but didn’t; for a tax code that should have been simplified but wasn’t; for successful companies that could have been started here but weren’t; for government services that should be better but aren’t. America will muddle through — the cost of our political system’s problems won’t be a spectacular collapse so much as they will be the slow divergence between what our living standards could be and what they are.


By this point, Klein’s “not gonna happen” starts to sound pretty awful — almost as bad as (in fact almost exactly the same as) Yglesias’ collapse.


The last word comes from Carl Eric Scott at the conservative National Review.: Democracy’s Doom and the Unserious Constitutionalism of Vox.  Scott finds a great deal not to like in what the others (all liberals) have written. They say expanding presidential initiatives have occurred under both Democrats and Republicans, Scott disagrees, finding niggling distinctions that imply that Obama is worse. Scott mentions the Constitution in almost every paragraph, so he wins.

Now for my thoughts. I think all five writers are focused too narrowly on just the top level of government. That is an occupational hazard of living in Washington, of course. The national government is, indeed, the tail that wags the American dog. But when a dog dies, the tail stops wagging, too. So the moral, social and economic problems of the whole country cannot be dismissed even by someone who is chiefly concerned with what happens on Capital Hill.


Anyway, I think I want to take Klein’s argument in a different direction. What if, perhaps, the collapse has already happened?  What if the “muddle” Klein speaks of has already become the normal state of affairs?

While thinking about this post, I asked my family what images come to their minds when they think of economic or governmental or social collapse. I expected to hear, Planet of the Apes or Jericho or Book of Eli. But my wife instead mentioned the pictures of decayed and collapsing buildings in Detroit. Not fiction, but reality. Not an impending (but still avoidable) future, but today’s reality.


Vacant backlot in Detroit (Source: globalmews.ca)


There are plenty of people who interpret Detroit’s decline as a particular case of failure due not to a general collapse but to the flaws of Democrat Party policies or to the inability of black people to govern. (Excuse me for not providing links to the sources of these arguments.) But to those who would say Detroit is a special case, I’d ask their explanation for the widespread decline of rural America. I think the following picture is made more poignant by the fact that it is offered for sale by “Fine Art America.”


Ruined farmstead in Utah (Source: FineArtAmerica)


Note I’m not simply saying that one abandoned city block and one abandoned farm prove anything. I’m assuming that readers know that every city has vacant and abandoned buildings that have been replaced by cheaper apartments and tract houses. Replacing old things with something better is great, but abandoning what is good and replacing it with nothing is, to me, evidence of decay. I’m assuming readers know that America’s agriculture system is in crisis, too.

So, maybe Ezra Klein is right that American will muddle through, avoiding turmoil by accepting lower and lower standards and more frequent outrages.

Is that what we want?


Congratulations to the people of Greece on the outcome of their recent election. The victory of the leftist Syriza Party certainly doesn’t mean all is well over there now. It may not even mean that Greece is moving in the right direction. Syriza may not govern well.

But the election does mean something.

The United States held an election less than three months ago, and it perhaps didn’t mean anything at all. That’s the view of Convention of States:

 The new, Republican-led Congress convenes [on Jan 6, 2015], and conservatives are hopeful that, as Bob Dylan famously put it, “times, they are a-changin.”
But can we really expect significant shift towards a smaller, less powerful federal government?
The short answer is, “Probably not.”


Convention of States is a website dedicated to reforming the nation by substantial changes to the Constitution. I think that is a good idea. But their immediate point here is that the recent national, election isn’t likely to change much – neither affecting their particular issue of interest nor national policies overall. I don’t know of any national news source that expects much progress, in any direction, in the next two years. (No change might be a very good thing if most people were happy with most aspect of our society, our politics and our economy. But they aren’t, and changes are needed.)

There will be lots of action on Capital Hill, but unless a crisis emerges that foced cooperation, the action will be all for the sake of credit-taking and name calling. The Republican House of Representatives will pass dozens or hundreds of bills. But few of them will get through the Republican Senate, and won’t be signed by President Obama if they do. It will all be partisan posturing rather than good public policy.


Greeks celebrating the Syriza victory. (The Guardian)


But in Greece, the election really means something. That country is going to go in a very different direction now that Alexis Tspiras and his Syriza Party have won control. And the most important aspect, to me, is that the people got to vote on something very dramatic.

The privilege of voting is a very great basic right IF the voting makes a choice between very real and very different alternatives.

Giving Up Too Soon

Barry Goldwater was right when he said, “Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue.” I don’t mean to say that slapping a “Liberty” label on something makes it good. But I think a good outcome requires the right plan, pursued with determination. If you set out to do the wrong thing, you’re certain to fail. But failure is also certain if you strive halfheartedly to accomplish the right goal,  or if you give up before you get it.

Which brings me to a recent audio podcast from The Week contributor Michael Brendan Dougherty. Listen to it (about five minutes) and then come back for my thoughts:



It seems to me that Dougherty makes the second of the two errors introduced above – what Goldwater called “moderation in the pursuit of justice.” Dougherty acknowledges that a government that is responsive to its citizens is desirable. But then he tells us we can’t have one:

“And so we’re stuck with this enormous country with an enormous shared history and an enormous federal government. It just seems that gigantism is the birth defect of the American republic. . . . As with any birth defect, we just have to learn to live with it.”

“We just have to learn to live with it” is tantamount to saying nothing can be done about “gigantism.” Dougherty tells us repeatedly that gigantism is antithetical to democracy. The title of his article is “America is too big to be a real democracy.”  He explains that the massive size of the federal government of and congressional districts plus the excessive power of the political parties make it impossible for us to have any genuine role of the way the country is run.



According to Dougherty, the problem of out of control, self-serving government isn’t new. Rather it’s a defect that was there from the beginning. James Madison recognized it in the 1780s. But Madison thought growth and expansion would solve government cooptation by narrow factions. Madison wrote in The Federalist No. 10 that a large nation would be more democratic:

“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.”

Dougherty is probably right in calling this statement by Madison a mistake. There is no evidence that America’s two monster political factions have weakened as the nation has grown to over 300-million people and a $15-trillion economy.

But at this point Dougherty just gives up and tells us we have to live with what we’ve got. Instead of looking about hopefully for a new solution that might work better than Madison’s failed one, Dougherty tells us to be content with highways:

 “The benefits of living in a continent-sized empire are also pretty great. There’s something amazing about building highways from the Atlantic to the Pacific without needing an international summit. Nor do we need a passport to travel them. We have a mostly free market of huge proportions into which we can sell our wares and services.”

I don’t find this very convincing. In the first place, they have highways and “mostly free markets” across Europe, which is about as a big an economic entity as the US. They have highways all across Central Asia. Crossing borders without passports isn’t “amazing.” Passports are no big deal. It certainly isn’t a good great enough to offset responsive government, which Dougherty seems to be telling us it is.

Political leaders throughout history have told the people that what they’ve got is enough. The Romans kept their non-citizen population at heel by giving them panem et circenses (bread and circuses.) Many centuries later, the repressive regime of Mussolini was justified by the phrase, “But the trains run on time.” Both these example live in history as bad ideas that lead to bad outcomes.

Bread and Circuses
Bread and Circuses

It seems to me that Dougherty is, perhaps without meaning to, urging Americans to accept the same sort of bad deal. He admits our country doesn’t have good representative government. But he implies that we should accept that disappointment. I recognize that Dougherty is responding especially to the notion of secession which he rightly describes as extreme and unlikely. But after setting aside that one stupid response, Dougherty seems content that no other response is possible, or needed.

Madison’s original idea for preserving representative government in a large nation failed. Massive size has not protected our country and its republican institutions from control by self-interested faction. Dougherty jumps to the conclusion that self-interested faction is here to stay.

“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” Thomas Jefferson agrees with me that Americans shouldn’t just accept what we get from Washington. Being dead nearly 200 years, Jefferson isn‘t going to give us many practical ideas for fixing what’s wrong in Washington and 50 state capitols. But ideas are not the problem.

There are scads of ideas that would help restore public influence over American governance. A first step is to overturn Citizens United. Politically motivated gerrymandering must be stopped and political districts in every state drawn by non-partisan technocrats. If congressional districts are too large, let’s have more members of Congress. And if that means they and their bloated staffs won’t fit on Capitol Hill then let members of the House of Representatives stay home. They can forego caucuses and committees and lobbyists and vote electronically from their districts. Devolve many of the functions done badly by federal bureaucracies down to the states (and I don’t mean to state agencies that administer federal regulation). Let the states be the little laboratories of democracy that Justice Louis  Brandeis said they should be. But balance greater state autonomy with a new Bill of Rights that is a lot stronger than the one we have.

Let’s get started.




Ferguson: Quand on l’attaque, il se défend!

If truth and justice had been done August 9th in Ferguson, Michael Brown would be alive and facing charges for strong-armed robbery: He wouldn’t be dead. If truth and justice had been done subsequently by the grand jury, Officer Darren Wilson would be facing charges for killing Brown: He wouldn’t be free and exonerated.

Millions of words have been written about Ferguson. Almost all aspects of the topic have been touched on: Ferguson and Race; Ferguson and police methods; Ferguson and the American Culture of Violence; Ferguson and Local Government Tyranny; Ferguson and Federal Solutions; Ferguson and Respect For the Police.

The case has been taken apart and pieced together by many excellent writers. My favorite is probably Ezra Klein at Vox, who with his colleagues has separately looked at Wilson’s testimony, Dorian Johnson’s testimony, the way St. Louis County Prosecutor Bob McCullough handled the case, and the protests that have accompanied the story from the beginning. That is a lot of links to one source, but Vox is doing a tremendous job in its chosen role of “explainer.”

Breaking news and recent revelations get most of the press coverage. There’s another perspective that hasn’t gotten much attention in urgent drama of the Michael Brown case. And that is the vast disconnect between what Americans want (and deserve) and what the laws and legal procedures provide. The Constitution promises . . .  well, you can read for yourself what the Constitution promises:

 “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, 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.”

There are some who believe that the Ferguson grand jury’s decision was “justice.” No one thinks there has been “domestic tranquility” around Ferguson these last few months. And darn few would agree that the rioting and anger and division are signs of a perfect union. And my contention is that whoever is pointing a finger in any direction, they should point it at the Constitution, too,

Domestic tranquility.

Domestic tranquility.



(I write this after the grand jury decision has been announced and full transcripts of all the testimony have been released. I’ve read Officer Wilson’s testimony and watched his interview with George Stephanopoulos. Wilson’s certainty that he did the right thing runs through his training for the local police department back through years of case law all the way to the Constitution.

The 4th Amendment guarantees citizens freedom from unreasonable searches and seizures. But since it only says those few words, history and case law have decided what is reasonable and what is a seizure.


The relevant law is based on several Supreme Court cases, including Graham v. Connor (1989), which says in part that the court should not use the benefits of hindsight. In other circumstances we believe that the best decisions in life come when we consider all the evidence that is available. But Graham v. Connor holds the police to a different standard. It doesn’t matter if subsequent investigation turns up evidence that the policeman’s snap judgment was wrong. If what he did seemed “reasonable” at the moment, then it was legal.

I don’t pretend to be able to parse legal language. I have to rely on the interpretations of experts. In this case, one of the resources for understanding Graham v. Connor is a recent article in Police Magazine, which says,

“The officer’s force should be applied in the same basic way that an “objectively reasonable” officer would in the same circumstances. The Supreme Court has repeatedly said that the most important factor to consider in applying force is the threat faced by the officer or others at the scene.”

The article really ought to have said “the perceived threat faced by the officer.” Because the officer’s perception of circumstances during the moment are the critical issue.

There’s a saying in French that goes: Cet animal est très méchant, Quand on l’attaque il se défend. Translated, it reads, “That is a very wicked creature. When I attack it, it defends itself.”

We have it directly from Wilson that he swung his car door open vigorously to push Brown away (“Quand on l’attaque”), Brown retaliated by pushing the door closed again (“Il se defend.”) Never mind that it may not have happened that way. Wilson’s own testimony is enough to show that he interpreted Brown’s (or Dorian Johnson’s) actions as threatening. And that right there opened the door to his use a moment later of deadly force.

Another important case is Tennessee v. Garner (1985). Tennessee law at that time stated, “if, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.” That last phrase (“all the necessary means”) was uncontroversial under old common law when few officers carried guns.

Tennessee v. Garner tested whether Tennessee’s law was still proper under more modern conditions, and found that it wasn’t. But far from saying police ought not to shoot people on the street, the Tennessee v. Garner case only changed from allowing the police to use “all the necessary means” to allowing them to use deadly force whenever it is “reasonable.” That word “reasonable” comes from the 4th Amendment, and the judges decided that it applies here. But the writers of the Constitution didn’t explain clearly what was reasonable, and neither did Justice White in the Tennessee v. Garner. That has always been left pretty wide open.

At the time, the Tennessee case seemed conducive to fewer police shootings. It did, after all, add stipulations. But from today’s perspective it still seems to leave the door wide open. A policeman who provokes a citizen into a defensive reaction can then, with all legal justification, shoot that person.

I’m not confortable with that. Are you?