Sunday, September 19, 2010
Happy Constitution Day!
Yes, yes, I know the actual holiday was on Friday, but this evening will be the annual celebration at the University of Dallas. The evening features barbecue, Shiner, a patriotic address and then singing. Lots of singing. The measure of a good Constitution Day is if you leave hoarse. In honor of this fine festival, I share a few of my favorites.
The evening begins with songs of the Revolution and the early Republic, then moves to Confederate songs and finally to those of the Civil War's victors.
(For those of you reading this on Facebook, click here for the YouTube video of "The Bonnie Blue Flag".)
One of the great things about the lyrics to this song are the strange rhymes in later verses. Words like "mar" rhyme with the recurring "star", but "rare" or "prefer"? I'm afraid not. At one point "Florida" is stuck in there, making no attempt at all to continue the rhyme. There are other fun ones: I guess "given" rhymes with "eleven", but it still sounds funny when you sing it.
(Click here for the YouTube, if you can't see the video.)
This songs works best with periodic shouting. The most popular lines for this practice are not the obvious "shouting the battle cry of freedom", since it occurs far too often, twice in every verse. Instead, the best words to shout are usually the last words of the third line of every verse. This works particularly well with "[singing] And although he may be poor, he will [shouting] never be a slave!" The song is made even more boisterous by a great sweeping of fists into the air every time the line "up with the star" occurs. I highly recommend it.
(Click here for video.)
This is a slightly odd video of the "Battle Hymn of the Republic," containing rare color footage of World War II. Also, strangely enough, the song is performed by Russia's Red Army Choir. But I found that this rendition had adequate "We're going to whip the bad guys!" gusto, which other versions (such as that by the Mormon Tabernacle Choir) lacked.
Happy Constitution Day!
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Perhaps it's time to re-visit our debate on written constitutions from last year (here and here)?
Here are two passages from Joseph de Maistre (tr. Elisha Greifer), On God and Society: Essay on the Generative Principle of Political Constitutions and other Human Institutions (Chicago: Henry Regnery Company, 1959):
"One of the greatest errors of a century [i.e., the 18th century] which professed them all was to believe that a political constitution could be created and written a priori, whereas reason and experience unite in proving that a constitution is a divine work and that precisely the most fundamental and essentially constitutional of a nation's laws could not possibly be written."
Those are the opening lines of the essay (p. 3). Here are four propositions at the center of the essay (p. 14):
"1. The fundamental principles of political constitutions exist prior to all written law.
"2. Constitutional law [loi] is and can only be the development or sanction of a pre-existing and unwritten law [droit].
"3. What is most essential, most inherently constitutional and truly fundamental law is never written, and could not be, without endangering the State.
"4. The weakness and fragility of a constitution are actually in direct proportion to the number of written constitutional articles."
Two thoughts:
(1) What de Maistre means by "constitution" may not exactly correspond to our written document. If we think of "constitution" in a broader and older sense, we find that the most fundamental notions in the American system are representation and equality before the law. These things precede any written document and are the principles on which the Revolution was fought. These could not be created simply by writing them down, nor could any document be written in America which violated them. They form a kind of "super-constitution" which overarches the particular arrangement of the branches of government.
(2) I am going to appear to contradict my statement of 17 September 2009, but in light of the above distinction, I think consistency is maintained. Then I wrote: "More or less overnight we became a new state and had to decide how to govern ourselves. There was no long tradition of unwritten custom upon which to draw, and then slowly modify over time." This was true of the particulars of government, the mechanics of the several branches of government. However, in the sense of fundamental principles, America had a long tradition, stretching back to medieval English notions of trial by jury, the presumption of innocence and taxation only with representation. These ideas had been fermenting in the colonies in a potent way for some time and came to full flower during the Revolution. Thus, by the time of the Constitutional convention, these ideas were long-existing.
Thus, if we read de Maistre's propositions with regards to these fundamental principles of representation and equality, rather than with regard to the Congress, executive, judiciary and the several states, I think you'll find they're largely true of the US.
A follow-on comment: some of the most tricky laws (and judicial decisions) we have are those which seek to codify our nation's basic principles of equality and representation. Think of the Civil Rights Act, the Americans with Disabilities Act or the Court's principle of "one man, one vote." There is no doubt that all of these aim at very American goals and are very good in their intent, and even in most of their outcomes. Nevertheless, trying to parse out exactly where something like discrimination or gerrymandering begins or ends is quite difficult. The principle is one nearly all of us can accept, but writing it down and making it concrete is no easy thing. Arguably the process of doing such debases the principle and makes it a football of polemics. Does that mean we shouldn't codify such things? Well... I don't think I'm willing to go quite that far. Not yet, anyhow.
Aaron, you're right about the sense in which the term "constitution" is being used, as in a nation's fundamental notions, rather than just a basic law regulating the system of government.
However, I would contend that the U.S. Constitution actually fits within Maistre's wider definition of a "constitution" because it embodies the framers' attempt to create a new kind of polity. Yes, the framers drew on earlier sources of law (primarily English common law). Nevertheless, they were acutely aware of the fact that they were creating something new. Later on, Lincoln understood this too, and spoke in the Gettysburg Address of America's "great task" and the "new birth of freedom."
In other words, there is a reason we call our separation from England a "revolution." I think the revolutionary aspect of the Constitution became clearer over time as the Supreme Court used the Constitution to alter the (unwritten) common law.
If I have time, I'll try to think of a few concrete examples.
I'm sorry that I have this on my mind, but I'm taking a class on comparative constitutional law this semester, and we just talked about unwritten constitutions.
As for concrete examples of the framers using the Constitution to change the common law, a good one is the First Amendment and freedom of the press. The colonists' understanding of freedom of the press was quite radical, especially in the Zenger case. The Supreme Court has also used the First Amendment has also reversed the common law of libel: now the plaintiff has to prove "actual malice" in order to recover. While it's true that this standard was established relatively late (in 1964), in New York Times v. Sullivan, but I don't think the Court's interpretation of the First Amendment was necessarily wrong; the Court merely drew out a fairly radical implication that had only been implicit up to that point.
But, some qualifications are in order. Other provisions of the Bill of Rights, such as the 4th Amendment, are more or less codifications of the common law as it stood in the 18th century. Of course, how those general principles should be applied is what makes constitutional law so difficult.
Nevertheless, we should not forget the important fact that the entire scheme of a representative republic was revolutionary for its time, as Madison makes clear in Federalist #10. The ideal of diffuse, non-personal authority is a "constitutional" idea in Maistre's sense of the word--a fundamental part of what makes America what it is.
In other words, the very radicalness of our written Constitution is a sign that it meant to be a new constitution.
(I hope I'm not just playing with words there and actually make a little sense.)
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