America: Broken As Designed
By Arkady in Op-Ed
Tue Jun 11, 2002 at 08:31:47 AM EST
Tags: Politics (all tags)
The most significant test of any system is how it handles unanticipated situations. A well-designed and implemented system is one which can continue to operate correctly (i.e. one which continues to embody its design principles and function according to its specifications) in a situation which was not considered in its creation. A system which does not must be considered flawed, either in design or implementation.
While those of here who are scientists and engineers use this principle of evaluation daily in our work, it's likely that few of us (and probably even fewer in the general population) have applied this principle to the State(s) in which we live. Since the United States, in its current form, is over two hundred years old (and one of its designers, Thomas Jefferson himself, advocated such a review every twenty years), a public review of how well it has proceeded is long overdue.
A well-formed project will have three things, not because they are necessary for its success, but because they are necessary for deciding whether it has succeeded. These are: 1) a statement of goals, 2) a specification and 3) the implementation. Without these, it is impossible to look at a finished system and reasonably decide to what degree it is (or is not) what was intended and to what degree it actually performs the functions it's intended to perform.
The United States is a rarity among States, in that it possesses all three of these things:
- 1) statement of goals: The Declaration of Independence and The Federalist Papers
- 2) design specification: The Constitution
- 3) implementation: the State as it exists
(Most modern States possess a written Constitution, though as I understand it the United Kingdom does not, and obviously all States, in that they exist, possess an implementation. Few, however, have a written statement of the founders intentions; the United States, the Soviet Union and Maoist China are quite a rare collection in that respect.)
Since the U.S. has all three attributes, it is possible to evaluate it as we would any other project. This involves answering three questions;
- 1) How closely does the specification follow the stated goals?
- 2) How well does the implementation follow the specification?
- 3) How accurately does the implementation embody the stated design goals?
"Life, Liberty and the pursuit of Happiness"
The Declaration of Independence (at the National Archives) lays out several principles and goals for the new State, which its authors hoped to launch with that document. While some, like the quote above, are stated as affirmations others may be deduced from the list of complaints against the British rule, though since this is an essay (not a book, in which I could reasonably expected to deal with the whole range of the subject) I will content myself with three affirmative principles listed in the preamble.
These three points are:
- 1) the State exists only by the consent of the people, who have the right (and the duty) to withdraw that consent and to institute a new State (or States) when the old ceases to follow the Declaration's founding principles
- 2) the peoples' right to "Life, Liberty and the pursuit of Happiness", among others, are unalienable (i.e. may not be transferred to, or interfered with, by the State)
- 3) the State must treat all people equally, neither favoring nor oppressing any class or individual
These three principles are stated quite explicitly, rather than deduced from the complaints against the British rulers (which makes up most of the text of the Declaration), and thus can be reasonably used to evaluate the resulting State. There can be no mistaking them as fundamental design principles, in that they are stated as such, and thus no reasonable complaint can be made that they are the product of a later interpretation. The American State must, therefore, embody these principles fully to be considered a successful design and implementation.
"We the People"
The Constitution of the United States (at the National Archives) is the specification, the blueprint, for the American State. The plan it sets forth is the basis on which the implementation was built and is the standard against which that implementation is normally measured (i.e. through contests over constitutionality in America's courts).
As this plan relates to the three principles I'm considering from the Declaration, the specification falls fairly far afield from the State's design goals. The Constitution lays out a State with the following attributes:
- 1) no requirement of assent by the people, and no provision for its own replacement (it even authorizes powers to prevent such a replacement)
The Constitution was adopted by ratification from the standing governments within the States, all of which were elected only from the male, propertied citizens. At no point was significant approval in a general ballot, even from within this very limited subset of the people, ever required for the adoption. It has thus never, at any point in time, had to acquire the explicit consent of those who live under its sway.
Though the Constitution does contain provisions for the replacement of the ruling individuals at the end of their allotted term, and provision for amending the ruling structure (though this is largely useless, as it requires the participation of the current rulers), it makes no provision for recall of an errant ruler during their term (indeed, it explicitly excuses them from being subject to the State's laws during their terms) and expressly authorizes the new State to violently prevent any attempt by the people to dissolve and replace it.
- 2) an enumeration of rights on which the State is forbidden to infringe, including speech, the press and practice of religion among others (this was added to the actual Constitution after its drafting but prior to its adoption; as many contemporary commentators pointed out, without these amendments it was a _very_ poor implementation of the Declaration's principles)
Rather than including a provision restricting the actions of the new State to those supporting the "Life, Liberty and the pursuit of Happiness" of the people, the Constitution sets forth a broad State which claims many powers which contradict this. The most obvious among these powers, of course, are the power to execute offenders against the State's laws and the power to seize property. Placing these powers in the State clearly contradicts any claim that a right to them is unalienable, in that the people's asserted rights have been transferred to the State.
In fact, the only areas of complete exclusion provided in the Constitution (i.e. those areas in which the State is categorically forbidden from operating under any circumstances) are the practice of religion, speech, press, peaceable assembly and of petitioning the new State for a redress of grievances. All of the other restrictions provided by the Constitution are qualified by a phrase like "without due process of law" which, as the State being restricted is also the organization making the laws, restricts _how_ the State may act in those areas without in any way restricting what it can do or why.
- 3) far from containing provisions and mechanisms to guarantee equal participation by and treatment of all people, the State contains five legally distinct classes of residents: Ruler, Citizen, non-Citizen, Indian and Slave (the class of Citizen being further subdivided by age groupings and gender)
Though the word "equal" does occur several times in the Constitution, at no point does it refer to a requirement of equality among people, or even equal treatment of them by the State. The 14th amendment comes closest to creating such a restriction, but only forbids the states (not the State as a whole) from denying any person the "equal protection" of that state's laws. This does not apply to the federal apparatus itself and, even by the broadest possible interpretation, does not require the states to create a condition of actual equality (they must merely treat each person equally under whatever laws they do pass). This allows laws which affect only, or disproportionately affect, one class; a fine example of this are laws which forbid sleeping in public places, which does not affect anyone except those too poor to have a place of their own to sleep without requiring that the State eliminate the factors which create a class too poor to sleep anywhere other than a public place. This restriction, therefore, while having the appearance of equal treatment, affects only the manner in which the State acts without actually forbidding any actions it may choose.
Though it may certainly be reasonable for any State to distinguish between Citizens and non-Citizens, at least as those classes may be relevant to participation in a democracy, it cannot be reasonable to include any other classes in the formal structure of an "equal" State.
Contrary to popular belief, the 13th amendment did not eliminate the class of Slave from the Constitution; it merely restricts that class to those who "have been duly convicted". This, of course, transfers control of the Declaration's proposed right of liberty to the State, in that it is the State which makes and enforces the law. This clearly contradicts the Declaration's claim that this right is unalienable, in addition to formally establishing a Slave class.
The class of Indian is less objectionable, in formal terms though not in the manner in which they have _actually_ been treated, in that they are treated by the Constitution as a combination of Citizens of another State and Citizens (the term used in the Constitution, though "resident" is the term commonly used today) of a state. Though this reduces their representation within the federal government, it also grants them a significant degree of autonomy and freedom from state law, which special treatments may be considered to somewhat balance each other.
That the Constitution grants legal immunity to the current Rulers, of course, is an example of serious inequality. It creates a class which not only create and enforce the laws of the State but are not bound by them. Coupled with the absence of any mechanism to create or guarantee equal access to the ruling positions, this provision may justifiably be considered one of the most influential causes of the sorry state of the Declaration's principles in modern America.
Seeing now that the American Constitution is a very poor specification of the State's design goals, there may seem to be no point in evaluating how well the specification has been implemented and indeed, from that perspective, there is not. An implementation based on a specification which so greatly diverges from the design statement cannot possibly produce an implementation which bears any close resemblance to the goals set forth in the design principles.
There is a reason to evaluate the current implementation, however, and that is to see whether it follows the specification well and, if not, what flaws in the specification lead to that failure. A comprehensive review would, naturally, be beyond the scope of this article and (deserving a whole library to do it justice) would require more space and attention than anyone is likely to be able to give while sitting at a computer screen.
I will therefore restrict my comments on this question to a few current examples:
- 1) "President" G.W. Bush
The person occupying the office of the President is not, legally, the President. Regardless of how the various vote recounting scenarios would have returned (though all observers do agree that a full-state recount would have resulted for Gore), the process which was actually followed was unconstitutional.
First, the Constitution leaves Elector selection entirely to the states. When the Florida Supreme Court ruled that the first Elector certification was invalid, the official status reverted to having no designated Electors. The federal Supreme Court ruling that the first certification was valid, as not doing so would leave the state at risk of having no certified Electors, clearly overstepped its Constitutional authority (the also-illegal act of allowing votes by judges against which there were conflicts of interest also makes that vote illegitimate). The Constitution states that the Congress shall set a certification deadline, certainly, but it does not authorize the federal government to intervene to guarantee that Electors are certified by that time. A state which fails to appoint Electors may be in violation of the Constitution, as it states that they will do so, but for the federal government to ignore that state's Supreme Court ruling on this issue clearly violates the Constitution's statement that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors".
- 2) Copyright and Patent
The Constitution gives to the State the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". As many of you are undoubtedly aware, Congress passed this mark many years ago, and modern copyright and patent legislation has been demonstrated by many researchers to suppress, rather than promote, "progress".
This reversal in priorities has, in fact, gone so far that then latest Bill on the subject (from Senator Hollings, often referred to as "The Senator From Disney") takes as its explicit goal the suppression of progress in data processing technology.
- 3) the case of Jose Padilla
By now, you may have encountered this in your favorite news source, as it's only just come to light. Jose Padilla is an American citizen, currently (and for at least the past month) being held by the U.S. military on suspicion of being a terrorist. Though neither the civilian government nor the military have given evidence that he broke any laws, he has been held in secret for over a month and is facing the prospect of a secret military trial.
To support this, Ashcroft has cited the "law of war" (an unwritten body of convention by which militaries purport to operate) despite the obvious fact that the country is not, legally, at war. The absence of any declaration of war, as described in the Constitution, should make this quite obvious. That the U.S. is involved in an unconstitutional military engagement, demonstrated by the ordering of the military into action by a man who (even were he Constitutionally President) would not have the Constitutional authority to do so without a declaration of war.
This leaves a situation in which a U.S. citizen is being held on suspicion of planning an action, with no evidence, by the military.
That all of these have, in fact, occurred demonstrates an important point: there is no mechanism included in the Constitution by which its provisions (much less the laws passed under its rules) may actually be enforced against the current ruling individuals.
The current American State is clearly not operating by to its own specification, much less according to its stated principles. Those of us who support the principles asserted in the Declaration of Independence, those of us who don't but just despise the hypocrisy of a State such as America claiming to while doing whatever its rulers please, or even those of us who just dislike seeing a project botched so badly, may wonder how we should solve this problem.
There is ample precedent for a body of concerned individuals declaring themselves to be a Constitutional Convention , writing a new Constitution and even adopting it without the consent of the majority of the people affected by it. This has already happened twice in America's history; indeed, it is the way in which both of America's Constitutions have been adopted, so it would be equally just to say that there's no precedent for any other manner of adoption.
It seems clear that America is long overdue for a comprehensive redesign. It is time to either recreate the American State to follow its existing design principles, or to find new and better principles on which to base a new design (those who approve of the current State could perhaps begin by attempting to deduce the principles on which it actually operates and proposing that we follow those).