History

The New Constitution: Comment – on the appropriate specificity of amendment language

Over the past few days, the New Constitution series has generated some interesting discussion. Objections, defenses and counterpoints from myself and other readers, in some cases resulting in planned revisions to the document.

One particular issue, which I predicted in the prologue, has centered around the appropriate level of specificity employed in articulating the various rights and responsibilities. One of our regular commenters, rushmc, has taken the lead in arguing for greater specificity in general, and others have offered a similar critique with respect to particular amendments and clauses.

I thought it appropriate to haul that discussion out of the comment thread and address it as a separate issue this morning.

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As I’ve said before, I think some readers, perhaps understandably, want a level of detail and specificity here that isn’t appropriate for a Bill of Rights. They have seen wars over language in the original document and would like to be as clear as possible about intended meanings so as to fend off all the lawyering. Believe me, I sympathize.

I have made ample use of the original document in trying to hit the right notes, and I’m convinced that my version is at least as specific as the original. The nice thing about broader language is that it allows for flexibility and growth. We’re still using a pre-industrial constitution because the BoR’s refusal to get overly specific has allowed it to be reinterpreted (not always perfectly, to be sure) as the world changed around it.

I certainly understand why we’d want to make sure every word is nailed to the floor. We have both watched helplessly as generation after generation of lawyers, many of them employed by people as corrupt as the night is long, worked feverishly to undermine every positive impulse in our constitution. But if you get too specific at the BoR level, you actually create more opportunities for those people, not less.

Let me give you an example. The original gives us the term “freedom of the press.” Let’s say they were having the same battle over specificity that we are here. Critics say “what do you mean by freedom of the press?” and the guy writing says that I think we all know what that means. But no, we need to be very specific about what “freedom” means and what “the press” is.

You know what the press is, I argue. It’s people who write the news and opinions and publish them on their printing presses and sell them (or give them away) on street corners. Now, if we know the history of the time, then we’re well familiar with “journalists” who were as bad as (or worse than) FOX News is today. You didn’t need a brain or a soul to buy a printing press, just cash. So we might have wanted to be careful about affording those jackals too much “freedom” – they were as different from Ben Franklin as 2 Live Crew was Mozart and they served no observable social use at all.

When all is said and done, we wind up with a first amendment articulated so as to protect the rights of legitimate newsgatherers and commenters (and for the moment we’ll pretend that there isn’t an even larger argument to be had over “legitimate”) to investigate local, state, national and, insofar as is possible within the constraints of the laws of other sovereign nationalities, international events and to print and distribute the details of said events for distribution, either free or for profit.

We may have been able to screw it down even tighter for that, but for the sake of argument let’s say that we have done our best to take as much unhealthy fuzziness as possible out of the language. Ratified, and away we go.

Then some enterprising genius invents the radio. And not long after another one gives us television. And then, the gods help us, the Internet. But there’s a problem. The first amendment doesn’t apply to any of them since they aren’t printing and publishing.

Now, I’ll be the first to admit that about 99% of what happens on radio, TV and the Internet isn’t worth an ounce of constitutional protection. But I hope you see where I’m going. At the level of legislation, intense, near-OCD specificity is a requirement, and if the world changes underneath it, well, the process exists to change laws quickly. But constitutions are another animal altogether and opening the doors to amending them is a process to be undertaken with caution. One wants to keep partisan hooliganism as far from the core statement of rights as possible, and the more tactical that document gets, the less likely it is that its integrity can be preserved against the whims of the moment.

One need on to look at the process by which various states amend their constitutions (think California or Colorado “ballot initiatives” here) to understand what a dumpster fire a constitution can become when it becomes a tactical/legislative document instead of a philosophical/strategic one.

4 replies »

  1. Agreed Dr Smith, adding boilerplate to statements of purpose just gives wiggle room for weasel worders. The simpler and the clearer the better. These are creeds not contracts.

    Question, rather than a “New Constitution” this series is a progressive rewrite of the existing amendments to our original constitution yes? Meaning we all agree more or less on its original articles?

    • To a point, yes. There are elements in the original that will not survive – state’s rights, for instance. As a rule, though, what you have here is an expansion of certain protections (extending them to safeguard against corps as well as govt in places) plus a few new ones.

  2. I’m glad you’re thinking further about this issue. But please don’t mischaracterize my position by exaggerating it into absurdity–I’m not calling for a 10,000-page Bill of Rights written in opaque and Byzantine lawyer-speak. I have pointed out a handful of specific instances where I felt your language was unnecessarily vague or failed to convey your actual intent to a wide audience of different values and expectations. Finding safe harbor in a lack of specificity may work on occasion, but I think those occasions are far rarer than those where endless avoidable legal wrangling is triggered.

    As for your example of the Freedom of the Press…no one is suggesting defining the “press” in such a limited, specific way as to eliminate future technological developments. Rather, it might be nice if it had been defined in such a way as to accommodate and incorporate future growth so as to have clearly (to all) included bloggers, so that they wouldn’t have been excluded from its protections as they often have over the past several years.

    It comes down to whether one wants to enumerate a list of general principles or to craft a guiding legal document: the brilliance of the founding fathers is demonstrated by how well (not perfectly) they managed to do BOTH.

    We’ll just have to agree to disagree on this. And, here, at least, you win, which is as it should be–it’s your project! Which I am continuing to read with interest and enjoy and benefit from.

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