State of the union

>> Wednesday, February 13, 2013

Fifteen years ago, I was sworn into the State Bar.  Well, affirmed into the Bar, because there's no sense in a godless heathen like meself putting my hand on the Bible; not that I've ever seen an oath made on the Bible to, f'r'instance, tell the truth and the whole truth and nothing but the truth ever stop a self-identified believer from breaking that same oath within minutes, f'r'instance by telling a story with all the invention and disregard of facts or even factual possibility as the most inveterate raconteur.  But I digress.  I bring up the business of being affirmed into the Bar because it involved an oath or affirmation to uphold the Constitution, and this made me feel very proud and noble.

Which is why it's a damned shame I have no faith whatsoever in the Constitution anymore.

None.  Almost none.  Maybe a smidgeon.  The faith of a man who has looked at the Patterson-Gimlin film and knows it's a hokey, obvious fake and who knows that if there were a population of man-apes roaming the Pacific Northwest, surely campers would be scraping Sasquatch crap off their shoes on an almost daily basis, but he still thinks maybe the woods are big and deep and it's not impossible there's something tromping around up there.  The faith of a man who knows a plesiosaur would starve in Loch Ness but wants to believe in monsters.  The faith of a child who keeps hearing around the schoolyard that Tommy and Susie both walked in on their parents sticking boxes under their Christmas trees and Stevie found a closetful of toys a week before the sacred day of loot but just because Santa's fake in three houses doesn't mean he's always fake.  Etc.  I have the vestigial faith of a man who is despairing, frankly.

Someday, you know, I might be able to retire.  And then I can stop caring, except maybe on a dilettantish level, an amateur spectator of historical debris fields and ongoing carnage at railway crossings nationwide.  Meanwhile, I have decades of existential angst and knowing I'm a part of the problem, not the solution, to look forward to.  Because I have, indeed, taken a solemn affirmation to uphold the damned thing, and I try to be a man of my word as best I can manage, and besides, it pays my mortgage.

This isn't really about me.  Sorry.  This is all a cynical, self-pitying preamble.

A preamble to the business of the President giving his State Of The Union address last night.  So this is something he has to do, something Constitutionally mandated by Article II, section 3 of the United States Constitution:

He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient....

And you might well wonder why I spent so much time whinging about my professional existential angst.  It's because the President has to periodically do this State Of The Union business, is why, and how it's become this ridiculous and scarcely relevant exercise and the kind of thing that shows (in a small and inconsequential way) just how ridiculous our refusal to go and scrap the existing Constitution and come up with a nice, spanking-new one really is.  It seems like it would be useful in the 18th Century to require the President to tell the Congress what's going on, though you'll note that the Constitution doesn't say he has to give an "address" and, in point of historic fact, Thomas Jefferson took to sending the Congress a nice letter updating them about what was going on and what they might want to consider doing about it.  These days it seems a little pointless, though, when all a Senator has to do if he wants information about the state of the union is maybe check Twitter (I'm being a little facetious but not totally, you realize).

News traveled badly in the 1700s.  Not slowly (though it often traveled slowly), but badly.  A rumor might spread at astonishing speed but be so mangled by the time it traveled from Boston to Augusta that even Providence would throw up His hands--or their hands, I mean, Providence, Rhode Island might be just as baffled as anyone at what innuendo and inaccuracy hath wrought.  And I don't think the Founders really thought being a politician would be a full-time job, or that it would have to be.  But these days a member of Congress is either as well-informed of the state of the union as anyone, or listening to the President (or reading his report) isn't going to penetrate the thick fog (this latter seems depressingly likely these days).  And the recommendation of measures almost seems redundant these days, when Congress has delegated so much of their budgetary and military authority to the Executive Branch already--which isn't exactly a criticism of Congress as much as it's yet another criticism of a Constitution that divides powers along untenable lines (of course Congress has to delegate authority to the President--we live in an era in which an entire civilization-ending war could be fought in under an hour if we lost our minds and somebody pressed that fabled Little Red Button; and the Federal budget has become so complicated and convoluted it's simply more efficient to ask the President to have his people draw it up and Congress can look at it and approve or deny it).

I'm not talking about the actual speech the President gave last night, am I?  What is there to say?  He gives good speech.  It was more pragmatic and practical than, say, the 2006 State Of The Union address where President George W. Bush talked about hydrogen cars, and parts of it were unobjectionably reasonable (it's hard to argue with, "Each of these proposals deserves a vote in Congress. If you want to vote no, that’s your choice. But these proposals deserve a vote.").

But these speeches have just turned into wish-lists and personal introductions that don't necessarily have anything to do with the state of the union.  This isn't President Obama's fault; this is kind of just the way things have been done for much of the past hundred years.  But you consider something like Jefferson's 1804 SOTU message, and you notice a lot of it is a list of what we've done up to now, and relatively little of it involves anything more specific than "That individuals should undertake to wage private war, independently of the authority of their country, can not be permitted in a well-ordered society. Its tendency to produce aggression on the laws and rights of other nations and to endanger the peace of our own is so obvious that I doubt not you will adopt measures for restraining it effectually in future."  Points for pith.

And then there's this thing we do now where we give the other party a rebuttal, which is silly for all sorts of reasons.  I listened to Rubio's speech responding to what he thought Obama might have said if he'd given the State Of The Union address Marco Rubio expected him to (I understand Rubio and/or his speechwriters didn't have an advance copy of the President's speech, hence the surreal disconnect between Rubio's rejoinders to a different speech and the speech the President gave).  I listened to this, though, because I was playing a videogame and was not in a position to get up and turn it off.  Which I would have done if I wasn't playing a videogame, not because I don't care what Republicans have to say, but because I don't care what Republicans have to say about the President's Constitutionally-mandated duty to address Congress about the state of the union; this isn't a debate before an election.  I never cared what Democrats had to say about President G.W. Bush's SOTUs either, frankly.  But this is apparently obligatory, now, and I have to tell you I consider it yet another example of how degraded American governance, culture and civilization have become, that we seem to feel this obligation to give equal time to a response to whomever the President happens to be, a response that replies to him as a member of the opposition and not as the President Of The United States Of America.  It might be vaguely interesting though completely gratuitous if we gave response time to the President Of The Senate and the Speaker Of The House, but I'm not sure why we'd do that, either (for one thing, the President Of The Senate is also the Vice-President Of The United States, and we have unitary Presidential tickets now, so I imagine the President Of The Senate's response would almost always be, "What he said.").

I'm just stuck on the State Of The Union being kind of a dumb and useless thing to do.  Not dumb and dangerous, like a Constitutional clause that leaves the national defense to weekend warriors, pirates and whomever you could round up in an emergency and call an army.  Not myopic and useless like an amendment that protects individuals from having their houses and papers searched and seized but understandably fails to mention their electronic communications and the contents of their horseless carriages, the Founding Fathers being reasonably familiar with history but almost entirely unacquainted with science fiction.  Dumb and useless like an internal organ that pretty much only continues to exist to kill you.  Or maybe not that bad: maybe more like a baby born with a tail.

I want to add that I think the guys who wrote the Constitution were pretty fucking brilliant.  I'm not saying they weren't a bunch of charming, well-dressed, literate intellectuals who were coming up with this fabulous concept for a system of government out of nothing but a decent knowledge of history and a firm grounding in political philosophy.  It's just that they also weren't psychic.  Well, that and that they were, David Mamet notwithstanding, politicians and were engaged in all sorts of horse-trading and compromise to get something down on paper and everyone's John Hancock on it (except, ironically, John Hancock's).  Well, and also just the fact they were fallible guys like anyone else, and some of their ideas were just kind of naïve, to be tactful about it (I really don't think many, or maybe any, of them really got their heads around the notion that you couldn't do a contemporary navy on the cheap, f'r'instance, that ships were complicated and expensive things and you might sort of want professional sailors onboard who knew how to bring the guns in and out and do all sorts of complex stuff that I confess I just skim over whenever Patrick O'Brian goes deep, because those books are amazingly fun adventure/romance stories, but I really couldn't tell a fo'cassmacallit from a mainwhatchamijigger and why you need to twain the bosun's cat with a fo'ardbackwinchcastleknot, but I did manage to figure out that the failure to do something with any and all of the above is possibly what caused Captain Aubrey heroically, inevitably and in spite of his best efforts to lose yet another ship the Admiralty grudgingly made him master and commander of).

We just need to sit down and rewrite the whole damn Constitution, you know?  But I don't think we're smart enough to do it, and anyway we have this whole mythology we subscribe to where we pretend we're under the same form of government we instituted in 1789, or maybe 1868.

But I'll have you know, I'm here and ready and have given my solemn word I'll defend it.  It's almost completely indefensible.  But I will do it.  Sadly, resignedly, and with some sense of despair and hope that Social Security and the state retirement plan won't be wholly gutted before I'm too old to visit anyplace fun, or that at least has a somewhat more sensible system of governance.


Anonymous,  Wednesday, February 13, 2013 at 3:01:00 PM EST  

Yeah -- I'm not sure we're smart enough to do it, either. I mean, one advantage the Framers had was that, although the had the experience of living under the Articles, basically the idea of constitutionalism was very new. So people hadn't necessarily run down all the possibilities (in law journals and political theory and actual practice). I think that must have given them a lot of freedom to pick something plausible and just run with it. We, on the other hand, are trapped in a world where every possibility has been argued over ad nauseum. I think that makes it hard to reach any agreement on any change. Everybody's got a ready argument, so how can we come to an agreement about, say, reforming the Senate?

I also think some questions are just really hard. I have a friend who's really skeptical about using the Commerce Clause as the basis for the modern regulatory state, even though he believes in the value of the regulatory state. And my response is always, "Me too. I agree. It doesn't make sense, textually. But what would you replace that text with? What amendment would give you the regulatory state you want while still leaving some things out of bounds?" Neither of us has thought of a good answer to that question.

Eric Wednesday, February 13, 2013 at 4:17:00 PM EST  

I think that's a good insight; the same naivete that led the Founders to create an unworkable political system for administering national defense also liberated them to be experimental. Not wholly knowing what they were doing had its benefits as well as its problems. Whereas we're in the position of being able to explain in some detail why every single conceivable proposal for a system of laws can't possibly ever work at all, much like the fabled scientists in that popular urban myth who're always proving bumblebees can't fly.

The Commerce Clause problem is a marvelous illustration of just how screwed-up and jury-rigged and ad hoc our system of governance is. There are better arguments for a regulatory state (e.g. the General Welfare clause) but we can't use any of them simply because of how the Supreme Court chose to read the Due Process Clauses from the end of the 19th Century to the early middle of the New Deal. The legacy we end up with is that now anything at all can be regulated if Congress says it involves interstate commerce in any conceivable way, so long as the SCOTUS doesn't argue the point (and when it does, it doesn't matter how sensible or necessary the regulation might be, or how ideal the Federal government might be as an enforcer of such a regulation).

I think what we need, honestly, is a Constitutional Convention and a new document. Not amendments, but wholesale tearing-it-up and starting over. We have a country that already wants to practice parliamentary-style politics, so why don't we just institute a parliament, for instance? We already have a government with a broad, inconsistent power to regulate--why not simply and explicitly give government the power to regulate everything so long as no person's life, liberty or property shall be deprived without due process (and while we're at it, why don't we go ahead and finally, explicitly define "person")? We have a "federal" system in which the individual states are subsumed to the Federal power and rely on the national redistribution of wealth and in which states already form interstate compacts and/or follow the recommendations set forth in various uniform codes created by legal think tanks so that there's broad national consistency in areas such as child custody and contracts--why not rethink federalism altogether and formally set policy at a federal level.

Maybe. I mean, I'm not necessarily saying we should do these things in preference to other possibilities. I'm spitballing, as they say. Riffing. But if the objection is that any of these ideas seem dangerous, well: I don't think they're more dangerous than the crude and rickety scheme we're already attempting to operate under.

If the objection is that no one will go for any of these ideas: yeah, I know, that's part of what depresses me.

Nathan Wednesday, February 13, 2013 at 4:25:00 PM EST  

I'm pretty sure we're smart enough. OTOH, I'm absolutely certain we're too fucking insane.

I guaran-damn-tee you I'd be emigrating shortly after any new Constitution written by the current crop of wingnuts was ratified.

Tom Thursday, February 14, 2013 at 2:07:00 PM EST  

Uh oh! I was worried that we might lose Nathan, but then I remembered that no one who has said "I'm going to X if the Government Ys" has ever followed through. "I'm going to emigrate if they pass Obamacare." I'm going to move to Canada if they pass a draft." "I'm going to emigrate if they pass a new Constitution."

I guess they've been 2Ys to Xit.

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