I’ve been reading The Red: Trials, the sequel to Linda Nagata’s much praised The Red: First Light – don’t worry, you’ll get your chance to read it soon – and it got me thinking about constitutions.
In military science fiction involving the U.S., the soldiers’ oath to uphold the Constitution often comes into play. An individual or a troop may decide to take a rogue action – that is, disobey orders – if they think someone in power has betrayed the Constitution and the country as a whole.
The Red series uses this. So does John Hemry’s Stark’s War series. Judging by the folks I know who’ve served in the military, this is a good basis for a plot. Soldiers take that oath seriously, though I suspect that most real life military folk would not go as far out on a limb as the fictional troops do.
When they take the oath, soldiers promise to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” While soldiers also pledge to obey the orders given by the U.S. president and their commanding officers “according to regulations and the Uniform Code of Military Justice,” their first and foremost duty is to defend the Constitution, not any human beings. Soldiers are not supposed to follow an illegal order, though that’s a very messy decision to make.
Under monarchies, soldiers pledge their loyalty to the king, but in a democracy the loyalty is to the law. And no one – not even the president – is above the law. This makes for good principles and good fiction.
It also means that the U.S. Constitution has almost religious status for soldiers, not to mention for a lot of lawyers. In the legal profession, constitutional law is considered an elite area of practice. When the Supreme Court says something is “unconstitutional,” it implies that the law in question betrays something fundamental in our country.
Yet a constitution is only a set of rules that detail how we’re going to run the country. While it defines the ground rules of society, it’s not scripture*.
One of legal blogs I read regularly is Balkinization. It was started by Jack Balkin, a constitutional law professor at Yale. One of the regular bloggers is Sandy Levinson, a professor at my alma mater, the University of Texas Law School.
Levinson has written a book on the flaws in the U.S. Constitution called Our Undemocratic Constitution, and he frequently blogs about this issue. Some of his attacks focus on the fact that California, with 34 million people, and Wyoming, with 582,000 folks, each get two senators. (I’d add that the District of Columbia, which has more people than either Wyoming or Vermont, has no senators.)
Levinson has also attacked the presidential right to veto legislation and the electoral college system that has given us several presidents who didn’t win the popular vote. He wrote several posts addressing this during the Bush administration, but he hasn’t changed his mind since President Obama took office. He thinks we ought to toss out the constitution and start over.
Now I have to say that the idea of holding a new constitutional convention gives me – and a lot of other people – the heebie jeebies, because I’m not at all sure we’d get something better. I don’t want to see the Bill of Rights, especially the First Amendment, thrown out with the bath water. But Levinson makes some good points.
Another subject frequently discussed on Balkinization, and in the legal community as a whole, is how to interpret the Constitution. Some say it’s a living document and interpretation adapts to changes in society; others say we should make decisions as the drafters of the document would have made them.
Given that the Constitution had to be amended to allow women to vote and that it allowed slaves to be counted as part of the population of a state for purposes of apportioning voting power (that is, each slave counted as 3/5 of a person) while still defining the enslaved as property rather than human beings, I don’t think interpreting the Constitution using 18th Century thinking is a very good idea. But many trees have been sacrificed to this debate.
Kings used to say they had “divine right,” but we’ve rejected that notion in the modern world. Constitutions aren’t divine, no matter how much we revere them. They’re simply an agreement by a group of humans governing how they will run their affairs. They should be challenged from time to time and they can be changed.
There’s no reason why fiction writers couldn’t put some of that constitutional turmoil into their books, if they have a mind to. A near-future story set in the U.S. could have a backdrop of constitutional crisis. And writers dealing with the far future should feel free to create an entirely different governing document, especially if they’re postulating the Singularity or other dramatic change in humanity.
Not only would it make good fiction, but it should provoke lawyers and lawmakers into thinking about how a society should be structured.
If you want to create a new constitution, it probably wouldn’t hurt to read some of the criticism of our current one. But this is one place in putting law in your fiction where you can be very creative. In the immortal words of one of my Clarion West classmates, “Just make some shit up.”
*I’m also inclined to think that scripture isn’t scripture, but that’s another subject.