Sunday, December 11, 2011

Compromise: The Constitution's Real Legacy

I found myself in a protracted discussion the other day -- actually, over a number of days -- and as happens, too frequently I'm afraid, became far too frustrated to continue.  It would seem that we have far too many interpreters of the American Constitution and not enough constitutional scholars.  I claim neither as a simple point of reference here, but I do harbor a certain historical responsibility to look at the motivations behind the people who ultimately create what we call history.  This job encompasses using (or abusing) all the various academic disciplines, including reading other people's mail.  Because in the dissection of human history and the actions that precipitate each entry, one must, in Idi Amin's rather cryptic observation, "Never confuse what I'm saying with what I'm thinking."  And therein lies the story and more important, the caveat in the game.

I have also grown weary of the flotsam that wanders the aimless currents of the Internet like a dyslexic flounder.  Misinformation, disinformation, hysterical polemics based more on medication issues than a rational thought process, self-serving agendas meant to promote a point no one can quite locate; out of context quotes, assumptions based on other assumptions, political interpretations offered up and consumed by people who never quite got past the 8th nauseum.  All circulated at the speed of light and evidently meant to be consumed somewhere in between the 140-character text bite and your good Friends gratifying experience in a public toilet.  Yeah, press Like here.

What's my point?  I suppose it is wrapped around the fundamentals of logical argument, something they try to teach you in the first year of college in order to avoid a lot of nonsense later.  I don't think I enjoyed this class, not sure I even remember it, but I do remember watching at least 50 episodes of Perry Mason:  "Objection, inadmissible!"  Then the judge:  "Sustained."  Jurisprudence adopted these simple ideas for a reason.  You need to argue the facts. Save your opinions for your 13-year old daughter who is going to ignore them anyway.

The discussion in question revolved around the constitutional right to bear arms.  I have no issue with that right.  As part of an argument over some perceived injustice (not clear which one), my opponent began cranking out random quotations and non-sequitors from various sources claiming the 'incredible foresight' of the founding fathers -- here I'm assuming -- on anticipating the invention of the Apache helicopter gunship with the dual Gatlin platform...or something.  Try to stay with me here for a moment.

I said, "Hold on a minute, partner!"  You have taken a third-party quote by an unrelated party (at least directly), as evidence of what four or five other people were possibly thinking and then extrapolated that quote almost 300-years to the present to argue a case on the merits of some incredible degree of foresight -- good or otherwise -- that may or may not have existed.   In most cases, common sense alone would dictate the latter.  Now, I always appreciate oppositional arguments or opinions, mostly because running around all day agreeing with people is a boring, unproductive exercise at group ass-kissing, a process that Zuckerburg has already perfected and I have no intention of infringing upon.  Dissension is how we finally distill the truth out of many random, and often opposing ideas and opinions.

My initial point in that friendly (though headed somewhere else), discussion had nothing to do with the 'right to bear arms' -- in fact it wasn't even about rights, but about second-guessing Washington, Madison or the bartender down the street.  You see, as Americans, we're in love with the mythology surrounding our founding as a nation.  Hell, that's okay. It is after all, a great story.  But a few things tarnish that landscape of altruism and that is where the foresight -- political to be sure, actually resides.

Putting together a federal constitution for these 13 rowdy and disparate colonies was more like a bar fight than a meeting of great minds.  Remember, each colony was founded on different values, ideologies, religions, cultural thinking and on and on. Just getting them to shoot the British instead of each other was a major early achievement -- winning a revolution, virtually miraculous. That victory is what brings up the often sticky issue over the 'right to bear arms' and the role of [first, as colonial] state militias.  Washington would have lost the war without these 'irregulars' because no mechanism was in place to finance or legally franchise a federal army.  Trust me, there is nothing worse than declaring war when you don't have a real army to back it up.  Really dumb by most standards.  The sad truth was that there was no United States of America, hence, no legal authority.  Now hold that thought for a minute and fast forward to the bar fight in Philadelphia.

The 'foresight' of these founders was really based on the political realities of the moment.  Yeah, they'd won the country, but not much else.  The British were gone, but not gone.  They were still in Canada to the north, and we had the Spanish in the west and south and the French were everywhere.  Now the French were allies of sorts, but this alliance was subject to whims and nuances of European politics, fickle and capricious as they always were.  And Washington was pretty sure that the British would be back.  And his victorious army?  Gone home to milk the cows and get caught up on all the bills that had piled up during the war. 

The key political issues on the founder's plate all amounted to deal-breakers of one kind or another.  The United States, in post-war status was virtually defenseless.  The army had disbanded, the navy was either borrowed (from the French) or just an amusing idea that existed mostly on paper, the colonies were suspicious of a strong federal government -- and rightly so -- just booted out a king and didn't necessarily want a new one.  (Actually, some wanted to make Washington king.) Yet, these same colonists had just received a hard lesson on the value of mutual defense.  None of them could go it alone, so for them, the new Union represented the ability to preserve the gains they had made through blood, toil and most importantly, a reluctant cooperation.

The Constitution itself was created over a period of about ten pretty difficult and rancorous years.  It is, for the most part, a document of compromises.  The Bill of Rights (so-called, fundamental rights), are purposefully vague.  They are intentionally broad-based and not designed to be regulatory as such. That is the premise of the courts via an interpretation of what these rights might mean in contemporary terms.  Lot of flexibility granted the states here.  The idea was local autonomy on most issues, leaving the federal courts, particularly the Supreme Court as final arbiter on constitutional matters.  Of course, I don't think the founders anticipated a 'politicized' Supreme Court.  Oh well.

Now, as far as the militias went, a couple of things were obvious to the founders, particularly Washington.  First, he owed them.  Couldn't have done it without them.  Second, was the colonies natural distrust in the idea of a centralized federal army, even in light of the greater security issues facing the new republic.  These militias or irregular forces would remain an integral part of the new Union, both as a compromise to current (internal) political realities, and as a defensive bulwark against unforeseen events on the international stage.  In the case of the latter, there were also economic incentives involved.  The core issue of the rebellion was, after all, a perception of unfair taxation -- those proceeds needed to support England's far-flung military adventures.  A reserve army would negate, at least marginally, the need for funding of an expansive national force.  An issue that had daunted Washington's military campaign throughout the war of rebellion.  As we can clearly appreciate in this day and age, armies are not cheap.  And gee, selling new taxes just after a war on excessive taxation?

No civilian or reserve militia (army) could exist without the 'fundamental right' to bear arms.  Washington in particular, appreciated the role that these civilian military reserves could play within the scope of his current perception.  But like all matters entering into the process of constitutional theoretics, no one could really anticipate how these issues and rights would travel over time.  That is why the Constitution was left as an amendable document.  And without that very basic premise, it is highly unlikely that the principles and ideas brought forth by these early founders would have even survived the first few decades of its existence.  Quite often, the real foresight lies in the generosity of the legacy -- the inheritance and continuity of an imperfect ideal.  

Now what in the hell was I so pissed-off about?  Oh yeah.  Historical second-party mind reading.  Well, the truth is that what is written here is also opinion of sorts.  Except that it is based on better minds than mine, and on the personal letters, diaries and notes of the participants in this wonderful experiment known as American democracy.  We need to continue these debates, because they are the spokes in the rolling wheel of an evolving system.  Human activity -- desires, ambitions, dreams -- are not static. Neither is the Constitution.  The brilliance of this document is not so much in the power of the individual words, but in how those words have traveled, despite the ravages of time and a constantly evolving interpretation.  We need to keep it a vague, shadowy ideal, and let each ensuing generation decide for themselves, and in their own slot of time, just what it means -- to them.