On Laws
FORWARD 6/28/2021: I wrote this piece a few years ago on a blog that never mattered; a meditation on the effectiveness of laws in general and specifically its role at the height of the Trump Ukraine Scandal that would ultimately result in his first impeachment. This story was dated a month after I wrote it…but I still think it’s one of my better works, so I brought it with me. Enjoy! If that’s your sorta thing.
I’ve been thinking a lot about the Articles of Confederation lately.
Unless you paid REALLY good attention in history class, this “blink and you’ll miss it” document actually has an immensely important role to play in the history of this country and the way we’ve chosen to govern ourselves. Namely since the Articles of Confederation was one of the first major failures of the founders of our nation and also one of the first examples of behavior that is very quickly becoming a lost art in this country: admitting and learning from mistakes.
Short version: the Articles of Confederation was the Constitution before the Constitution. Written and ratified in 1781, the AoC fairly quickly passed muster in the freshly minted states partially because, as far as governing documents go, it was pretty innocuous. There was no president, only one small congressional body, and generally speaking the states could keep on doing what they wanted to and the federal government, if you could call it that, was much more symbolic than able to actually do anything. For example: the government could solicit funds from the states (otherwise known as taxes) but it did not have any actual power to enforce the collection of them. In other words, it was up to the states to decide they wanted to give money to the federal government so that it could accomplish the limited number of things it was actually permitted to do. You can probably guess how many of the states opted to do that. So while the federal government had the ability to raise an army, they did not have any ability to pay for it. Which makes it tricky when states full of angry, rioting farmers ask the government to help them get their houses back in order.
Things got so bad that in 1787, a new group of representatives from each state gathered in Philadelphia to brainstorm how to put out the (literal and metaphoric) fires. While this gathering is often referred to as The Constitutional Convention, that is actually a title that it earned after the fact. Those who gathered there, amongst them some of the biggest names in American History (you’ve seen Hamilton), did NOT do so with the stated goal of drafting a new governing document. In fact, the first task they set about doing was deciding whether or not the Articles of Confederation could be amended to fix the problems it had enabled, or just to scrap it entirely and start over. Their first instinct was not to start over. They first wanted to determine if what they already had was still worth putting their faith into, and more importantly to find evidence to bolster whatever decision to which they came. Ultimately, they realized that the document, while good in theory, was just too ill suited to the reality that was the so recently united states.
They moved to scrap it and start over, setting off a long, bitter, occasionally divisive and largely incomplete sequence of events that ultimately resulted in the Constitution of the United States of America. Save for twenty-seven instances over the course of 230 years (ten of which came at once before the thing even made it out of the gate), that document has remained the immutable, steadfast law of the land ever since. That surprisingly brief document has served as the very lifeblood of the political system that has turned this country from a gaggle of well-intentioned rabble-rousers into one of, if not the most powerful nation ever conceived since we stopped using our knuckles to walk.
But lately I’ve been wondering: have we outgrown it? Literally and figuratively?
November 9th, 2016 was a watershed moment for a lot of people. The election of Donald Trump as president of the United States was a wake-up call that seemed to scream out to a great many people that they did not understand this country as much as they thought they did.
Despite losing the popular vote by a much wider margin than any elected president in history, it was the Trump Campaign that understood the system, and the people it allegedly served, just a little better. They vividly understood that a popular vote victory was not necessary, they knew just how small the margin for success could be and knew exactly who and where to target to squeak by with a win in the electoral college (with the assistance of decades of congressional gerrymandering and a little old fashioned voter suppression, of course). While Clinton and her supporters relied on idealism and faith in the American dream, Trump’s team was crunching numbers, analyzing voter data and, with pinpoint precision, told the right people what they wanted to hear at the right time to secure just enough electoral votes to sneak through. He saw the loophole in the system and exploited it. Statistics went up against idealism and won big.
Is that a bad thing? Certainly not if you ask the president and his Republican cronies: mandate or not, a win is a win. Most people in the country don’t know enough about the electoral system to understand anything beyond the end result being told to them. But do we deserve better than a system that allows a president to win on a technicality? Trump was not the first to do it, of course (and in 1860, I dare say it was the preferred outcome), but his strategy from the very beginning seemed to be dead set on the technical win. While this was never stated, of course, it’s not hard to read between the lines on this one. From the very beginning of his campaign, the bombastic and, frankly, hateful tone he set for himself and his policies was clearly never going to win over everyone. Unity was never his goal. He never wanted to appeal to the whole country (no presidential candidate really does, but this time it was pretty egregious). If he did, one certainly might imagine he’d take a different approach.
No, from the very beginning, his rhetoric so perfectly echoed the disgruntled voice of his base that it can’t have been coincidence. He picked his targets and played them perfectly. He knew the states he would need to win, figured out what they wanted to hear, and then told it to them. The partisan, divided state of our country worked perfectly with this approach: nothing gets people riled up more than telling them they were always right and those who told them they were wrong were actually the ones who were wrong all along. When all you care about is winning and improving your own personal stock, you’ll say and do whatever you need to in order to get votes. Your word is meaningless if you get the results you want anyway.
Regardless of how you feel about this president, his campaign and his record in the White House, he did come to power legally according to the laws of this land. Sure, he found a murky, distasteful and borderline unethical way of doing it, but ethics are subjective whereas laws are absolute.
Except, of course, when they aren’t.
Let me be clear: elected officials have been committing crimes and manipulating/ignoring the Constitution as long as there has been a Constitution to manipulate/ignore.
Sometimes they get caught and pay the price. Sometimes they don’t. Sometimes they are quiet about it. Sometimes they aren’t.
Trump is not the first, nor is he the last president to break the law. He did it for a long time before he was the president too. You don’t even need to look that deep to find evidence of it either. The common thread in most instances of Trump’s impropriety is fairly simple: he figures out how to manipulate the law and rely on technicalities. For example, if accused of prohibiting the rental of one of his properties to people of color based on the color of their skin, he will make every attempt to come up with another, legal reason for his actions. He makes an unethical decision, but justifies it with a legal precedent. In instances where he is unable or unwilling to do so, he relies on an old standby: money. If he settles out of court, then he can’t be convicted by the law.
Because an accusation, as opposed to a conviction, is based on the ethical beliefs of the accuser, it opens it up to bias (or so he would have you believe). Until the law steps in and makes a decision, the whole thing is up for debate, and as long as it is up for debate, he can say and do whatever he wants to influence public perception of his accuser. As long as he can say he was not convicted of a crime, the onus stays on the accuser and not the accused (himself). A technical win, but a win nevertheless. His actions, by design, live inside a realm somewhere between truth and falsehood. His truths have falsehoods built in, and his falsehoods have a small basis in truth — and if they don’t, he will find or create one.
(Unsurprisingly, most reality television lives inside this same ethically ambiguous realm as well.)
All of this is to say that this man has spent the majority of his life finding new, creative and wildly unethical ways around the law. His success in the world of business, the primary justification used to support his presidency, is largely predicated on this fact. Again, he is not the first elected official, president or, certainly, real estate developer to do any of this. One might even be able to argue that it is “part of the game” and they wouldn’t be wrong. However, as far as Presidents go, there are certain recent developments that put Trump into a category all his own. You see, not only is he committing crimes, but he has started to very publicly confess to them.
Let’s unpack this, shall we?
In late September, a whistleblower complaint was released alleging that the President, with the knowledge and assistance of his personal attorney and the Attorney General (and possibly the Secretary of State), attempted to put pressure on the President of Ukraine to investigate a debunked conspiracy theory against Former Vice President Joe Biden (a leading Democratic candidate in the upcoming 2020 election for which Trump will also be running) and his son, Hunter Biden. The whistleblower alleged that this was done as a means of influencing and obfuscating the 2020 election in Trump’s favor. Almost immediately after the complaint was made public, it was revealed that some time before the phone call where this alleged pressuring took place, the United States suddenly and without much justification cut off military aid to Ukraine. Connections between these two facts were immediately drawn.
In response, the White House alleged that no wrongdoing took place, that the accusations were unfounded and that the whole complaint was an attempt by the President’s political rivals to invalidate his presidency. They then released a transcript of the phone call which seemed to, fairly clearly, prove everything the complaint alleged, with the exception of an overt “quid pro quo” related to the military aid. Because it was not SAID that the aid was being withheld until Ukraine agreed to investigate the Bidens, the President is able to allege that the claim is false, despite the fact that the two are very obviously connected. In addition, there does not actually need to be a “quid pro quo” to make what the president did illegal. The very act of asking a foreign nation to dig up dirt on a political rival is a clear cut abuse of power and one of the highest crimes a sitting president can commit in the eyes of the Constitution. As a result, the House of Representatives launched an impeachment inquiry into the President’s actions in this case.
In response to THIS the White House…went completely insane.
The sheer number of revelations that have come to the surface related to this investigation over the last two weeks are baffling and it would take double the number of words I’ve already written to even attempt to cover them all. So, believe it or not, this only a PORTION of the mindbogglingly insane things done by the president and his advisors over the last two weeks.
And finally today, the scariest move yet:
Let’s call that last one for what it is: the President of the United States has gone from surreptitiously sidestepping the law to openly admitting that he believes it does apply to him.
Why the change in tactics? He based his financial success for decades on an understanding that the law was the law, which is why he worked so hard to circumvent it and keep it off his back. Why become so brazen about it now?
Because he is STILL gaming the system.
The framers of the Constitution made it possible to remove a president from office, but they certainly did not make it easy. According to the separation of powers, the House of Representatives is responsible for can pursue impeachment and gather all the evidence they think they need to in order to obtain a conviction. However, it is the Senate who ultimately tries the president and determines whether or not to convict them and remove them from office, which can only occur if at least 2/3rds of the Senate votes to convict.
At present, the House has not even voted to formally move forward with impeachment yet and already Senate Majority Leader Mitch McConnell has begun campaigning for his next term on the basis that he will stand in the way of any attempted impeachment of the President. Many of his fellow Republican senators have echoed this sentiment as well. In order to convict the President, 17 Republicans would need to break with the party, side with their Democratic appointments and stand against one of the most vindictive and petty presidents in history. Since Trump’s election, the highest number of Republican Senators who have broken rank on any issue is, to my knowledge, three (and one of them is now dead). It seems that most would rather remain loyal to the party and stay in the good graces of a president who will let them get away with anything while continually attacking their political appointments than to the Constitution, which they swore to protect before they were even allowed to set foot on the Senate floor.
Why is Trump so brazenly and publicly breaking the law?
Because he knows he will get away with it.
And, just like countless times before, anything less than a conviction will be considered a win and publicized as such to the same bitter milieu who elected him in the first place.
So, to recap: we have a president who was not chosen by a majority of the American people, who believes he is above the law and will get away with anything he does so that his political party can maintain their partisan control of the Senate.
And all of this, ALL OF IT, is legal according to the law of this land. He found the ultimate governmental cheat code that allows him to legally break the law.
Yeah. Let’s let that sink in for a second.
So, where do we go from here? And what the hell does this have to do with the Articles of Confederation?
I have no answers to the former, but the latter is pretty simple.
The Articles of Confederation were an exercise in best intentions that did not line up with the realities of the country. At their core, the laws it put forth were based on the best case scenario for the country, where the dreams and ideals that were fought for during the Revolution were held by all and that, when left to their own devices, citizens and their representatives would act in the best interests of the country and not only in the best interests of themselves.
It did not take long for that theory to be proven resoundingly false.
And when that happened, those in power came back together with a better understanding of the people they were actually serving and created an entirely new set of laws to better reflect the REALITIES of the nation, while still keeping an eye toward the IDEALS of the nation.
The laws did not work for the country. So they changed the laws.
See where I’m going with this?
The population of the United States in 1790, the year after the Constitution was ratified, was 3,929,214 and the country spanned just 864,746 square miles. People of Color were not considered citizens (or, in most cases, people). Women could not vote, let alone hold public office (or, more often than not, a job outside the home). There were no political parties to speak of and while political partisanship existed, it was largely based around geography, economics and other more tangible factors than today’s political partisanship, which is largely based around ideology and a desire to screw over those who do not hold that ideology (but also geography and economics).
With a population currently hovering around 327.2 million, the country is nearly 100 times more populous and nearly four times as large as it was when the constitution was written and with that expansion came new voices to the table and new priorities to the population. The people the government served changed, while the government stayed the same.
And now we’ve elected a president who breaks the law and is protected by those who swore to do the opposite and there is nothing in the Constitution that can stop it. We face realities the likes of which the founders could never have imagined and recent developments make me seriously wonder if the Constitution, as beautifully and functionally imperfect as it is, is up to the task.
I think it’s time for a new Constitutional Convention.
…
Still with me? Okay. Deep breaths.
First of all, most of you who know a thing or two about the Constitution may be thinking that said Constitution already has the means to make it better built into it: the Amendment clause. And, yes, while the 27 amendments made to the Constitution over the last 243 years undeniably make it more reflective of the times we live in, I suspect the problems we are seeing are so systemic and far reaching that starting from scratch, just like the founders did in 1781, may just be the better bet.
Not only is there historical precedent for this move, but the concept is baked right into the Declaration of Independence:
“Governments are instituted among Men, deriving their just powers from the consent of the governed, -That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, …and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”
In other words, if a government is not working for the people (not some of the people, ALL the people), it is the RIGHT of said people to abandon it and start over, even if it is easier to just ignore the evil we see in the name of comfort. Besides, who is to say we even need to stick with the same general laws for the long haul? Doesn’t reevaluating and reformulating them every few generations reflect the freedoms we fought for in the first place?
Commitment to staying the same is tyranny. Change is freedom.
Second of all, I know how insane this sounds. Not only is the Constitution literally and figuratively sacrosanct in this country, but the partisanship that got us into this mess (and make no mistake, it was partisanship more than anything else that got us here) would naturally stand in the way of the consensus required to draft a document that truly works for all citizens. For all intents and purposes, this idea is functionally impossible.
However, the pragmatic idealist in me feels the need to point out that a group of headstrong colonists breaking with hundreds of years of tradition, rebelling against and ultimately abolishing the very concept of monarchy and creating a nation of the people, by the people and for the people was functionally impossible too.
And yet, here we are.
Does a future exist where sociopolitical rivalries can be put aside in the name of improving life for all citizens? Can the best and the brightest from every state — the politicians, lawyers, chefs, farmers, miners, teachers, parents, drummers, hunters, doctors, scientists, journalists, the rich and the poor — come together to try to build something better? What about just asking the questions we’ve long avoided? Are we capable of building the better government we so desperately deserve? Do we even still deserve the ideals on which this country was formed? Or was the great experiment in unity and self-government a one time fluke?
I don’t have answers to any of those questions. The point of this piece was only to point out that we have reason and precedent to at least consider rethinking the systems in place which govern us. Figuring out how to actually go about doing that is another thing entirely (and potentially the subject of a future piece). I can’t possibly do that on my own and frankly, that’s a good thing. Because no one person should feel capable of solving the problems we face. The only way to fix this is together, and that process starts with asking the right questions. So with that in mind…
Can we start again? Can we do better? And don’t we deserve to find out?
I think so.
Originally published at http://iamprofoundlyodd.wordpress.com on October 5, 2019.
