Working Draft, Leggett. November 25, 2018.
Introduction and Background.
A well known scholar and professor of Constitutional Law (and author of my $300 plus case book) wrote recently, “where is the progressive interpretation of the US constitution?”
Unfortunately, this Harvard Educated elite (Harvard is an entirely anti-progressive institution of power) fails to follow his own advice and simply re-articulates a desire for the word “equality” to be argued as if it were already in this constitution. Like many others I wonder, Equality of what?
I have been working on a related question for over 10 years and have made some progress writing a history of “interpretations” of the US constitution and of constitutions more generally. What I have found suggests that the task is not as simple as many assume.
This study has led me to a question a French political philosopher (Montesquieu) asked when examining constitutions comparatively (Aristotle also did this): what is the purpose of government generally? He answered roundly: to keep power. Many scholars of power and social relations stop here, satisfied with the dynamics of an elite ruling over the submissive and resisters alike. However, Montesquieu was interested in the ways a constitution (or governing document generally) organized a social group (or groups) for a particular purpose (and he lists many – wearing a long beard as one purpose for example). He identified within the English constitution (post Magna Carta and Roman Dissolution) a concept of “liberty.” Perhaps we can use a working definition of liberty as: the right to be left alone.
In this Lecture I outline a working theory of a progressive interpretation of the US constitution.
One must ask a fundamental question when interpreting a document co-authored by men with many divergent and often cross-purposes: whether the original “meaning” or “intent” conferred by the document recorded is of particular useful value. Justice Scalia wrote that it is most important but only because it was “less evil” than some other value.
Thus we arrive at the dueling theories of originalism and equality (sometimes oddly referred to as a living constitution) which don’t seem to progress law and society toward a “more perfect union.” One form of exegesis encourages the language of a “right” to exclude and the other uses a language of inclusion. What can we learn from these two poles, seemingly at contradictory points?
Law and Society Methodology: Law as ideal, Law as Real, particular study of historical case to learn more about power and voting (participation).
I begin with the Primary Document: Federalist Paper number 47 written by James Madison to the voters of New York in 1788 arguing for the US Constitution to replace an absence of “unifying” law. Scholars (Beard, 1935) have long established the economic interests of the representatives who attended the constitutional convention and pushed through the “government” we think of as it relates to the constitution. However, somewhat less known is the fact that there was no popular vote for these representatives. In a simple accounting of the economic interests who voted for the constitution and those against reveals a striking division: those in favor were merchants, lawyers, clergy, doctors, and large plantation farmers on the coasts; those against represented smaller farms further inland and capitalists with an eye to exploring the frontier to the west. Thus, there was no “people” in the sense that the overwhelming majority of non-landed interests or non-professionals had no say or vote.
Madison carefully outlines the famous separation of powers doctrine by explaining there was no threat to liberty (the right to be left alone to pursue one’s life) as long as the three main powers of government were not controlled by the same group of people: the legislative, executive, and judicial. Based on the experience with Great Britain (and much could be said here) these men looked to the state constitutions of the colonies to ensure there were checks against one group taking all three powers. Thus, in this way the merchants would not be in control, nor the farmers, nor the lawyers, etc. However, today this does not hold true en masse – as the rich get richer and the poor get poorer so the rich control all three political powers and establish a hegemony of thought and structure that is not easily overturned and can in fact leave the powerless convinced there is nothing to do but serve the rich as slaves or low wage ($15 per hour) workers (see servitude in history more generally) to survive. That this is a myth seems not to satisfy those without political power.
So far I have identified that certain very large groups of humans have been routinely excluded from politics. However, it is becoming more well-known that one group in particular has been targeted more than any other in the U.S., those of African descent (See Scott v. Sandford; the 13th, or the New Jim Crow). Michelle Alexander (2010) articulates this history clearly as powerful groups used the law and three institutions of power against African-Americans. In the first chapter she provides a useful framework for the post Civil War period. While the 13th Amendment banned slavery except for criminal conviction (and recall there are very few criminal laws at this time), the 14th Amendment establishes on paper the fundamental rights of citizenship and residence – life, liberty, property, and due process (it is also important to note that the 14th amendment grants the power of enforcing these rights to Congress, and as an extension the federal executive and judiciary), and the 15th Amendment grants the right to vote to those previously excluded by race, color, and previous servitude (slave status). While on paper these are progressive actions, in reality, agricultural and banking interests believed they had the “power to pass stringent police laws to govern the Negroes…for they must be controlled in some way or white people cannot live among them,” (2010, 28). States then passed laws that excluded African Americans and others from voting by requiring educational or residential requirements, taxes, literacy tests, and frankly anything they could think of to exclude newly enfranchised peoples.
It is clear that voting (and participation) is deemed a dangerous power by those who control power. How then can we understand the fact that most people out of power do not vote, do not get involved with local-community politics (of which they are not excluded), do not run, or who simply see themselves as consumer-worker citizen residents?
In my study of law, justice, and exclusion I was directed to a book written by Dr. Martin Luther King Jr., Strive Toward Freedom, where he writes, “This is not a drama with only one actor. It is the chronicle of 50,000 (+) Negroes who took to heed the principles of nonviolence, who learned to fight for their rights with weapons of love, and who, in the process, acquired a new estimate of their own human worth.” (1958, 9). Compare this to a book researched and written by Dr. Debra Schultz where she writes: “the fact that the movement for social justice continues in no way diminishes the transformational achievements of [the Student Nonviolent Coordinating Committee (See Youtube)] and the entire southern civil rights movement…that experience, itself part of the achievement, was made possible by the coming together of people from disparate backgrounds united by a simple common vision of justice. Inspired by this vision, Jewish women who went south during the civil rights movement dare us, through their efforts, then and now, to believe in the possibility of social justice,” (Going South, 2001, 203-204).
Given this meeting today we continue this work with the same belief, something I pause to appreciate the weight of – and – the “power” that we all try to understand.
Identity, Agency, and Advocacy.
Put very simply, my co-author and I developed this framework and course reader with a simple logic: in order to be an advocate for change, a person must be given the space to reflect on their identity, how that identity clashes with how others see their identity, and how dialogue can begin the process of agency, the ability to work with others using one’s skills and interests, toward a common goal.
Three Dimensions of Power: Institutions, Instrumentalities, Ideologies.
Institutions are designed and maintained as collectors of knowledge for power.
Instrumentalities of power have both a positive and a negative power; the negative power is most well known – the criminal law and civil penalties, a “thou shall not,” or penal power; the positive power constitutes the structure whereby individuals and groups attain or seek power. It also leads to a concept of rights awareness, or legal consciousness.
Ideology then is the field of relations as it is understood by groups and can operate in such a way as to limit the ideas available to those who routinely experience injustice. In other words, power can be maintained by certain groups if other groups believe they cannot make change.
In closing, voting, when mobilized through awareness, legitimizes democratic institutions, voting gives these agencies, groups, advocates, governmental actors, and so on something to believe in that very well might exist otherwise only as the strongest and most violent rule. The instrumentalities of power can be used for good (the public good and to secure the rights of minority groups) but it can also be used for bad – the arbitrary and capricious type that discriminates, excludes, and endangers. The ideas generated from mobilizing the vote (particularly among those that have been excluded or harmed by wrong uses of power) are important because they raise awareness about how the individual can use their particular skills and goals, in cooperation with others, to form group advocacy. This sense of agency is good for the individual, the group, and for all as law and justice are redefined through the knowledge of power and social relations. Equality then is not something we should take lightly; it is something we strive for but we must also consider how we are co-creating the conditions for the kind of equality we all believe in and co-construct dialogue and knowledge of power that we can use for this particular purpose of governmentality. If we are successful in implementing this shared vision of inspiration we will have a liberal progressive interpretation of constitutionalism, something very different than the original US constitution, and yet something specifically allowed as a power of “the people” in Article 5.