Legal Fictions: Worshipping the Constitution

legal padI’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.



Legal Fictions: Worshipping the Constitution — 15 Comments

  1. (whimpering softly)
    Please tell me that he didn’t mis-spell the entire title of his blog. The correct spelling is Balkanization, after the Balkans, in southeastern Europe. It is a term so frequently misused in modern parlance, it’s depressing. (The latest idiocy: the Coke ad at the Super Bowl, Balkanizing…)

    • It’s misspelled on purpose, Brenda. His last name is “Balkin,” so the title is a play on words — evoking the concept of “Balkanization” — based on his name. The blog subtitle is “Balkinization: an unanticipated consequence of Jack M. Balkin.”

      Prof. Balkin is a very smart man — I interviewed him once by phone — so I’m sure he knows the history and proper spelling of the term.

  2. At several SF conventions of late one of the most popular panels involves writing our own constitution. Most people mix up what is a constitution and what is a body of law built upon the constitution. I am also saddened by the number of people who “mis-remember” what is actually in the constitution, mostly because they quote hearsay rather than having read it for themselves. I now carry a copy with me to the convention because the conversation goes well beyond the scheduled 1 hour.

    I’ve attracted a label of expert because I wrote a book about the Magna Carta. That’s another document that is often quoted incorrectly and never read. Strangely, naturalized citizens tend to know more about both than U.S. born citizens who go through our school system.

    It doesn’t take long to sit down and read our constitution. I highly recommend people do it periodically so that they know what their rights are and what they should be defending.

    • Let’s have high school students study the same materials required for taking the naturalization test. Then they can take the same test that aspiring citizens take. If they pass, they enjoy all the rights and responsibilities of citizenship. If they fail, they cannot vote, teach, work for a governmental unit, or hold public office. Thoughts?

      • Tests for voting have a bad history. The potential for abuse is way too high.

        But requiring a course on the U.S. Constitution for teaching certificates is not a bad idea. And the government could offer and require continuing ed class on the Constitution for all government employees and military personnel.

        One might also want to require it for all those companies that contract with the government, a larger and larger number.

      • I’ve known a great many immigrants to the country from all over. Many of my colleagues at my last “day job” were from European countries, including Holland, Belgium, and Germany. My daughter-in-law is from Nicaragua and immigrated to the US about four years ago with her parents—neither of whom speak much English. If such tests were given, I would be willing to bet that any of those people would pass such a test much more easily that the average American high school student—or college student, or adult. I also think most of my European cohorts had a far better grasp of the English language and its manifold grammatical rules and exceptions thereunto than most of the adult Americans I correspond with day to day … or whose fiction I critique and edit 🙂

        Citizenship tests, whatever their merits, raise an interesting point: we study and learn differently when there are real consequences and significant goals rest in on our performance.

        One of our greatest educational failures is that students feel what they’re learning has no real world application. For example, I once had every state capital and president of the US memorized (in order). Very little of that information remains, but I am well versed in any number of ways that I can retrieve it as necessary.

        What I’m saying is that in order for a test of that type to be meaningful, it must look at meaningful skills and useful information. We don’t need so much to teach and test the information itself as to teach and test the ability to retrieve and analyze it. I think this is the foundation for a well-informed and intelligent citizenry.

  3. I’m glad you addressed this subject, Nancy Jane. I’ve gotten into a number of dialogues with people who react viscerally to any suggestion that the Constitution is imperfect in any way. Even the fact that the founding fathers built in a process of amending it does not change their opinions about its absolute nature. Of course, the first and second amendments are usually the ones under discussion at the time. IMO, this dogmatic approach leads to some bizarre conclusions (that lies are protected speech, for example), or that the second amendment as stated in that one sentence is all about individual Americans defending themselves by force of arms against their own government.

    Pointing out that the founding fathers were flawed human beings who did not view themselves as or claim to be divine or perfect or even particularly sagacious gets silence, at best and ad hominem attacks at worst. (Well, I suspect it’s gotten me unfriended on Facebook a few times, too).

    Personally, I’m a believer in the divine and in scripture, but even with a divine pronouncement, there are dangers that we humans too easily fall into. One is taking things out of context. We fix on a particular, sometimes minor point of law separate from the context provided by the lawgiver (whether it was Krishna, Christ or the signers of the constitution). In fact, one of the larger contexts that we seem most often to forget is the reason the laws were given in the first place—their stated goal. That can cause us to behave in ways that—while seeming to adhere to the letter of a particular provision—completely undermine the goal or purpose of the entire law.

    Hillel’s pronouncement about the little aphorism we often refer to as the Golden Rule makes that point rather eloquently: “What is hateful to you, do not to your fellow men. That is the entire Law; all the rest is commentary.” (This, by the way, is an overarching context that exists in all revealed religion and often with equal emphasis; Krishna refers to it as “the sum of duty”, Christ echoes Hillel by saying that all the other laws depend on this one).

    With the Constitution, I think many people focus so much on the “high profile” provisions that touch their personal lives and forget the overarching context: that the purpose of the Constitution is to create a more perfect union for all of us collectively.

    • I like that line “the purpose of the Constitution is to create a more perfect union for all of us collectively.” That’s one reason I think the Constitution should be interpreted in light of current life, not stuck back in the 18th Century. Our idea of a “more perfect union” has evolved and will continue to evolve.

      And my smart remark about scripture was intended to convey my belief that no set of words should be considered so sacred that they cannot be challenged, whether we’re talking religion or law.

  4. Pingback: Hahví.net » Blog Archive » Constitutional Questions

  5. I really appreciate any discussion of the Constitution that isn’t made of shrill defensiveness. From this one, I’m learning a lot. Thank you!

  6. Granted that I was in the army a long, long time ago, I remember some quite specific classes on “illegal orders” and a soldier’s duty to the Constitution rather than a particular hierarchy or even the Commander in Chief. I suspect that men and women in the armed services have a higher regard for that oath than others who take it.

  7. A revealing book about the U.S. Constitution is Slavery’s Constitution: From Revolution to Ratification by the brilliant scholar and historian, David Waldstreicher.

    Love, C.