Saturday, November 28, 2009

An Evening's Entertainment in D.C.: U.S. Constitution 101

A few years ago (ok: maybe it was like 15 or 20) I was in Washington, D.C., having dinner with my friend, Todd Kelly, and he said, "Hey, let's go over to Georgetown; Antonin Scalia is giving a talk . . . ." I didn't have a very clear idea at the time of who Antonin Scalia was, or why we should be interested in seeing him talk. But that changed very fast.

That evening was important for me in two ways. The first was "global" -- it was Todd's suggestion that, in any bit city -- and especially one like Washington, D.C., there are extremely interesting public events happening on just about every day, and you just have to keep your eyes open to find them. That has become an article of faith for me, and has come to define how I relate to the city of Chicago.

Justice Antonin Scalia

The second was specific -- it taught me that you can disagree with 99% of the things that someone says, but still be in total agreement with the remaining 1%. In the case of Scalia, that 1% was -- and is -- the idea that the U.S. Constitution is something that we all own, jointly.

I vividly remember Scalia reaching into his jacket pocket and pulling out a copy of the Constitution -- the obligatory phrase, I suppose, would be "a well-thumbed copy of the Constitution" -- and, yes, thumbing through it to a specific provision that he wanted to discuss. His message throughout the evening was, "See how easy it is for us to disagree? Lucky thing that we have this compact document, so at least we can agree on a starting point."

I also remember Scalia's tone of challenge to the audience: "You don't like these words? Change them!" He talked at length about the importance of the process for amending the Constitution that the Constitution itself lays out. (We IT geeks would call that "extensibility".) By the time I left that talk, I realized that this was a Supreme Court Justice who earnestly desires that people "out there" are critical enough of specific parts of the existing Constitution to want to fight to amend it.*

I'm embarrassed to say that, during the intervening years, the ideas that Scalia presented that night skimmed across the top of my consciousness, like a flat rock that had been skipped across a still summer pond. But in recent days, and particularly as I pondered the mess we're in in Afghanistan and with the War on Terror, I realized it was time to step up to the plate and get a better understanding of the rules. And so I went here.

There's a lot of material in there I'm struggling with. (Why a two year limitation on Army appropriations, but not for the Navy? When is the Militia used, vs. the Army?) But mostly I'm awed by the apparent way in which the framers stepped up to the plate to write rules that bring about a new way of governing, in contrast to the one they had just stepped away from. In particular, it is clear that having absolute rulers who just did whatever they felt like were a reality for them -- and they were hell-bent on figuring out an alternative way to govern. And that "original intent" seems well worth honoring today . . . .

Check out another great account of a similar Scalia presentation -- at University of Delaware.

Related posts

The story of the past decade-plus has been the story of the assertion by some that the conception of law that our society has is not sufficient.  Simply put, there are those who say that there is a third, "in-between" category of behavior -- and legal status -- that is not civilian (subject to criminal law) and not military (subject to military law and the laws of war). And since there are no rules about how to deal with that third category . . . .

(See Using the Good, Old Criminal Justice System: Worth a Try?)

Yesterday, as all the other senators sat patiently through the obfuscation of Barack Obama's Three Horsemen of the Apocalypse -- Secretary of State John Kerry, Defense Secretary Chuck Hagel, and Chairman of the Joint Chiefs General Martin Dempsey -- Rand Paul gave 'em hell.
"Stand up for us and say you’re going to obey the Constitution and if we vote you down — which is unlikely, by the way — you would go with what the people say through their Congress and you wouldn’t go forward with a war that your Congress votes against."

(See Obama's Syria "Vote" in Congress: Democracy? or Theater? )

Elaine Scarry demonstrates that the power of one leader to obliterate millions of people with a nuclear weapon - a possibility that remains very real even in the wake of the Cold War - deeply violates our constitutional rights, undermines the social contract, and is fundamentally at odds with the deliberative principles of democracy.

(See Reviews of "Thermonuclear Monarchy: Choosing Between Democracy and Doom" by Elaine Scarry )