The already short US constitution could have been even shorter if it had left out Article 5 for convention of the states since it has never been used and I’m certain never will be used. It is a clause that shows a flaw in the foresight of the authors. I believe they anticipated that given the passage of time and the challenges of evolving human history, there should have been at least one such convention in the interim. They made it too hard to change, and perhaps the Civil War nullified the clause entirely.
We could still invoke this clause for a convention of the states to modernize the constitution in a way that at least conforms to current operation of government but hopefully also set new ground rules for how to proceed in the future. Even in the improbable event that it will happen, the vary definition of states that would convene in the convention would lack legitimacy for such an undertaking.
If we wanted to revise the structure of government, we should follow a pattern similar to how the initial government was created;
- A declaration of Independence that severs ties with the existing rule
- A resolution of differences with that previous government to recognize that independence
- A period of organization into self-governing states to identify the areas needing cooperative agreements.
- A convention of those new states to set the rules for that cooperation.
- A period of public debate exemplified by the Federalist Papers
- A ratification of the document
- A ratification of a document that replaces the bill of rights in its true role as defining the principles of the people who ratified the document.
The last point is crucial to tell future generations who it was that signed the constitution. This will allow them to decide whether the constitution remains valid. The constitution will become invalid as soon as people recognize they no longer share the principles of the ones who ratified the constitution.
A better approach to addressing the goal of Article 5 of the constitution was the require that the ratification of the constitution requires ratification of 10 articles defining the rights reserved to the citizens and states so that abolition of either of these articles would nullify the entire ratification. Rejection of either of these articles would automatically trigger a convention of the states. With such a mechanism, we would have had a convention by now because several of the ten amendments have lost their relevance as originally written.
Given the impotence of the article 5, we have to proceed with the pretense that the original constitution remains relevant to the reality of a government where unelected bureaucrats and federal judges decide the details of legislation where those details matter to individual citizens and their states. We struggle to define our common identity as citizens using terms described in the constitution.
Part of the difficulty of modern politics is that the constitution’s expectation of its citizenry bares little resemblance to modern life. We agree we need to solve certain problems, but we can’t figure out how to do it in a way that some fantasy version of citizenry would be in a fictional world depicted by the constitution we say we have to follow.
Living in modern USA is not living in an attempt at self-government by the population. Instead it better resembles a crowd-sourced writing of a fantasy story, similar to modern Hollywood blockbuster Superhero movies or Science fiction series.
Modern discussion of what is just and what should be legislated are in context of imagined populations of people who live in a fictional world. What we create has to make sense in context of the established canon of that world, rather than to have any relevance to our personal lives.
The now unbounded national debt is evidence that this is not working as a method of governance of real world in which we live. That is just naming just one example of how the government it running a fantasy world instead of one that recognizes reality of modern life.
I think it would help a lot if we could go back to the basics and collectively write up a new constitution that clearly describes modern environment we live in and clearly describes how we go about governing.
Article 5 is never going to do that work, so there needs to be a new way to start fresh. A way that may work is to follow the same sequence that culminated in the constitution in the first place. The first step would be some sort of declaration of independence.
While there are some talk of versions of such a declaration of literal independence using the language of state secession, state nullification, or sovereign citizens, I doubt these will ever be effect. For one thing, they too closely resemble what led to the Civil War and we can confidently guess the same winner would result from a second try at that.
A declaration of independence would not work in the modern context because the groups wishing such independence do not hold onto contiguous territory of majorities who support that independence. It is even more complicated in modern terms because relevant territories are defined by economies or by corporate allegiances instead of geography. It is analogous to people who like Star Wars and people who like Star Trek, they are intermingled among neighbors, coworkers, and family members. These are analogs to ideas such as social justice, economic fairness, libertarianism, economic theories, or foreign policies. These can be used to define populations who may want independence from government, but their identity can never be mapped onto geographic territory that could self-rule.
Independence is not a useful concept to declare as a reason for starting new.
However, the declaration of Independence defines an underlying philosophy that legitimizes the need for Independence and path forward for what can replace the rejected government. The philosophy of the enlightenment provided the justification and the guiding principles for starting fresh. In particular, there was a confidence in the correctness of the enlightenment thoughts of equality, natural rights, and general trustworthiness of citizens (though more narrowly defined at the time).
Our philosophy has departed significantly from the enlightenment ideas or at least the ideas at that time. We have expanded the population qualified for equality, and we have grown to accept that we can not trust individual citizens to do the right thing, either because the stakes are higher, or because we recognize many things require some form of government oversight.
Missing in the original thinking of the government is the idea of public trust. Alternative, there was an inherent assumption that all citizens can be trusted, at least for all feasible activities individuals could do at the time. They could be trusted to pursue their livelihood according to their own decisions especially if those practices did not interfere with other citizens. This included farming practices, running of businesses or banks, operating factories, or modifying the environment.
This trust in individuals worked because at the time, there was a limit to how much people could do. However, this was quickly made obsolete in the early 19th century with the engineering advances in harnessing energy and developing strong materials that could construct large scale equipment that increased the stakes for damage directly to the population or indirectly through the destruction of the environment or of previously established communities. Subsequently, newer innovations were matched with newer impositions of regulations on what people can do.
We still permitted progress, but with ever lessening trust in the individuals to make the right choices. We added licensing, regulatory oversight, and new legal definitions of responsibility, neglect, or criminal activity. Implicit in all of these is a loss of the original enlightenment concepts of individual liberty. And implicit under that is a recognition that those concepts were wrong or at least less universal than originally conceived.
Going back to the concept of a declaration that can start a rethinking of government, that declaration could be of our philosophy instead of our independence. The declaration of Independence was actually a declaration of a remedy for an irreconcilable difference of philosophy. By coincidence, the term independence also captured the philosophy of individual sovereignty included in enlightenment thinking.
I think we are in a position today to make a similar declaration today but it would have a different remedy. Instead of an independence from the existing government, we can seek a clarification of the terms of our relationship to our government where those terms better match modern understanding of science, biology, sociology, and psychology as well as acknowledgement of the risks and benefits that come from modern population density and technological capabilities.
In this blogging site, I have frequently thought about the issue of the disappearance of visible social participation. These are variously described as a increasing portion of population not participating in the labor force, the decline of a common appetite for consumption (such as for automobiles, house ownership, entertainment choices, and brand loyalties), and the declining social participation in religion, in marriage, in community clubs, or in professional societies or unions.
People are becoming independent and isolated, but this independence is very different from the independence of individuals described by enlightenment. To my knowledge, there is very little in the way of firm conclusions of what these people are doing, but that is because these people’s activities are not in a form that can be easily seen. In the enlightenment thought of individual independence, they would be noticeable because they would be pursuing their happiness in an economically measurable way: there was an expected correlation of independence with wealth creation. We would recognize what people are doing because we would recognize their change in wealth.
The modern independence is very different. Certainly some of this may still be correlated with wealth through underground economies (or virtual economies in virtual worlds of gaming), but I am guessing this is a minority. Most of the unseen activity is not matched by income or wealth accumulation (or decline).
Many of the suggested explanations are exemplified by grown adults spending all their time playing video games and eating junk food while living in someone else’s house. Alternative, we imagine that marriages are declining due to easy access to alternatives to sexual experiences or of a declining appreciation for interpersonal commitments.
Perhaps there are countless reasons where each reason would describe a tiny population, but the collection of reasons can sum up to the numbers we know are no longer participating in the enlightenment ideal of pursuit of happiness in a way that is measurable in the economy.
It seems we still cling to the enlightenment thinking by explaining the current trends as people dropping out of or refusing to participate in the economy or a collective social order. People are pursuing their happiness but that happiness does not resemble the ideals of the 19th century. We appear to be unambitious and lazy.
An alternative to the above description is that we have moved beyond the enlightenment philosophy. This is partly the realization of benefits from luxuries provided by modern access to technology and infrastructure. I suspect a bigger factor is that we’ve learned more about human nature and about the rightful role of individuals. Perhaps the relevant facts of human nature have changed due to the modern reality, but I think a lot of the change is due to a better appreciation of inherent human nature when the ideals of universal equality are realized.
There is no inherent trust in any individual, even in activities that only pose a risk to that one individual. We have replaced the enlightenment concept of inherent and assumed trust in the individual with a new concept of earned public trust through certification, licensing, or granting of office. Anyone has access to any activity, but they must earn that privilege and they must periodically renew the verification of their eligibility to that privilege.
I mentioned above about the language we use for defining government being more applicable to a fantasy world than to actual government. One such example is our continued embrace of the concept that we have a number of rights given to us by nature or by the constitution. This idea of rights remain essential to conform to the canon of the fictional world described by the constitution.
The problem is that this does not describe our lived experiences. There are no such rights. Instead there are privileges granted to us by government. Some of those privileges are granted by default and this gives us the impression of their being rights. But the real government (of criminal or of civil law) can take any of these away from any individual, as easily evidenced by long-term incarceration or bankrupting lawsuits. Also, modern activities such as right to operate new technologies (heavy equipment, aircraft, radio transmitters, etc) or consume modern options of foodstuffs or drugs are immediately regulated while they would not have been had they been available two centuries ago.
It is very confusing to discuss any modern topic of government in context of rights. We have grown past the idea of rights. The concept doesn’t work for deciding new policy. For example, I think the major reason why we can not address the modern problems of health care financing of unfunded entitlements is because we insist on including the terminology of rights. This fixation on the existence of rights is a demand to remain consistent with the fantasy canon of a fictional world. Meanwhile, we never even try to solve real problems of the real world.
How do we move beyond the fantasy concepts of rights?
A major part of contemporary discourse includes a broad topic of social justice that applies the idealized notions of rights in a way to eliminate the differences between marginalized communities and privileged communities. The ideas of marginalized or privileges are based on the idea of unfair access to rights at some point in ancestral past. These discussions insist on normalizing these differences before solving more fundamental problems. Because these involve differences in group histories spanning a great many generations, it will take many generations before these can be fully normalized. As a result, we are hampered from productive governance by a this demand for erasing differences resulting from violations of the concepts of universal rights.
We should first ask whether this concept of rights is valid in the first place. If we were to ignore the fictional canon of the enlightenment fantasy and instead objectively look at modern life, we would recognize that what we have are assigned privileges instead of natural rights. Over time, the assignment of those privileges are based on earned trust and merit instead of heredity or group membership.
Tying this discussion back to the above discussion of non-participating population, I propose that a large part of these trends are individual recognition of the irrelevance of of the political philosophy with actual life experiences of successes and failures of each person and of persons they know. We experience a life where people have privileges that were granted or that are not yet revoked. We can use the word “rights” to describe this, but that word has a different definition then what is used in political discourse.
People may be dropping out of the historic forms of social participation is a consequence of an honest recognition the actual lived experience is not consistent with the way it is described in political discourse. The non-participation is a consequence of indifference to that social or political discourse.
We can not govern ourselves because our language of government is inconsistent with the objective world. As more people become indifferent to this discourse, governance defined by the constitution will become even more dysfunctional.
At some point we may acknowledge that there is a declaration for change and that is a declaration of indifference. The existing constitutional based government can not operate with a large portion of population declaring themselves to be indifferent to the government. Of course, the government can continue as it has been, but its legitimacy is lost.
The constitution was based on a population that accepted the concepts of individual independence. The current government is of a population that accepts a concept of granted or not-yet revoked privileges based on merit and trust. We reconcile the problem by operating a government for show that follows the canon set out by the constitution, and a government for real that operates largely independently of democratic control. This is a necessity because actual government has to work under modern understandings of human nature, of potentials from modern technology, and of limitations of high populations and a finite planet. Individual rights are untenable in the modern experience, but we must continue to discuss politics in terms of that fantasy that rights do exist.
A declaration of indifference might reject the concept of universal unalienable rights for any right: there are no rights, only privileges. A modern government is based on earned public trust in the granting or renewing privileges or in the revoking of previously granted privileges.
The role of government is to define the terms or conditions for granting public trust to exercise each privilege. The government lists the privileges available to people, the qualifications needed for each privilege, the conditions (such as availability of openings) for admitting new comers or dismissing existing holders.
There may be a constitutional convention. The first step is to redefine the relevant stakeholders. The geographic-defined states made sense for the late 18th century, but we may consider other options today to allow groups that are not defined by geographic borders. In earlier post, I described concepts of separate groups representing different age groups, or representing different facets of operations and debt-service.
It would be beneficial to have a constitutional convention represented by the primary concerns of modern government. Instead of states, the representation may be based on sectors such as media/entertainment, food production, national defense, communications, housing needs, childcare and education, healthcare, various entitlements, etc.
The convention would describe how government decides:
- Qualification for privileges including those for holding representative or bureaucratic office
- How rules are authored or originated
- How rules are ratified to be put into effect
- How rules can be revoked, requiring new rules to replace them
- How rules are enforced
- How data may be collected
- How data may be classified
- How data may be accessed
- How facts of cases against defendants are decided
- What are permissible penalties
- Sentencing penalties onto guilty
- Carry out the sentences
Each of these are defined in modern practice, but often in ways that strain the simple reading of the constitution or even of legislation passed by Congress. We have a better understanding of how government must operate in the modern world. Getting together to define how government actually operates consistently with the written words of the governing documents can reinvigorate the efficacy of government to address current problems. Failing to rewrite the governing documents after making such an attempt will confirm to the indifferent that their indifference is justified.