Another Stab at the Constitution

The piece we are looking at is a commentary and analysis of the Constitution from The New York Times, published 225 years after the Constitutional Convention. Specifically, the commentaries look at what can be done to improve or amend the Constitution.

The Constitution has 27 amendments, the first ten making the Bill of Rights. The 1960s and 70s was the last period of time there was any significant action to amend the Constitution. Technically, the last amendment to be ratified was in 1992, due to a loophole in the amendment process.

Article V states the process of amending the Constitution. There are two methods for an amendment to be ratified (something Michael Rappaport focuses on in his commentary). The first, conventional method, is for at least 2/3 of both the House (290) and Senate (67) to vote on and propose an amendment. The amendment is then turned over to state legislatures to vote, now requiring 3/4 of the states (38) to ratify. Only then will the proposed amendment become an actual amendment to the Constitution.

The other, so far unused, method, takes the initiative from Congress, and gives it to the states, in this case, for 2/3 of the states legislatures to call for a special convention that would then propose an amendment, however at this point the convention would be independent even from state legislatures. The proposed amendment would then be referred to Congress who can either propose turning it over to state legislatures, or specially made state conventions in each state who must also pass the amendment by the 3/4 threshold. So, both ways entail a two-step process: the proposal stage that requires a 2/3 majority, and the ratification stage that requires 3/4. So far, the only method used is for Congress to propose an amendment, then ratified by state legislatures. Some legal scholars, like Akhil Reed Amar, believe there are other means for amending the Constitution besides what is explicitly mentioned in Article V, but for now we will concern ourselves with proposals in the article.

The first commentary by Jamal Greene, questions whether to create term limits for federal judges, as he says:

In a democracy, no one person should wield so much power for so long. Article III provides that federal judges “shall hold their offices during good behaviour.” [sic] In practice this language means they serve for life absent voluntary retirement or impeachment. Were we to draft the Constitution today, we would be wise to reconsider this provision. 

His reasoning for this seems to rest on two main points: one, he argues in some cases judges simply become too old to effectively render judgements in cases, something which requires a person to be at the peak of their mental faculties. Two, he argues that life-term appointments makes the selection process of judges too political. Federal judges are nominated by the President, but approved by the U.S. Senate.

Greene argues that the example of other countries that have term limits or mandatory retirement ages might be a good example, and seems drawn to the idea of an 18-year term. 18 years is by mosts standards a long term in office, but many would still be opposed to limiting the terms of judges. 

I think this is one of the most relevant and speaks to the need to limit the power of the court. It brings to light a massive contradiction in our supposedly democratic government (which as Wolin argues is more of a facade at this point) that we give so much power to an unelected body of people. Historically, the court has always been among the most conservative institutions of government, other than a relatively brief "liberal period" after World War II until the 1970s.

The second piece by Rachel Barkow, looks at the eight amendment of the Constitution and how it might relate to the current problem of imprisonment in the U.S. Despite the repeated claims to being the "land of the free," the U.S. leads the rest of the developed world in the number of people in prison, which as she points out is made up of significantly larger portions of minority groups in the country. Certainly, running prisons has become a profitable industry as of late, led by corporations like the Corrections Corporation of America (CCA) which also lobbies the government for longer prison terms and less leniency, not because it feels threatened by criminals, but because shorter prison terms would mean less business. However, private run prisons still make up only a small percentage of prisons in the US, most are maintained on public budgets.

Barkow raises a point about the disproportionate number of minorities in the US who are incarcerated. This report, also from the Prison Policy initiative shows this to be the case as well. Black Americans make up only 13% of the population of the US, but almost 40% of people in prison. This demonstrates clearly the racist nature of our criminal justice system. However, I would also add there is an even stronger class dimension to this as well, as almost 100% of people in prison are poor. This includes both black and white. The same could be said about police killings as well, or any other number of pressing social issues in the US. 

Some might say, "well that is because poor people commit more crimes." That might be true in some circumstances, but there also many documented instances of innocent people going to prison (even getting the death penalty) because they can not afford a decent legal defense, and of course many instances of guilty people getting off because they could afford high-priced defense attorneys or even avoiding charges altogether because of their social connections. Even when so-called "white collar" crimes occur these prisoners are usually kept apart from other prisoners and even in different institutions, like minimum security prisons, or what some call "Club Fed." Other non-economic crimes, or crimes of passion, I am not sure you can even say that poor people commit those crimes more often.

I made a similar point in my article but about the double standard in protests. However, I noticed a few people who commented on it focused on the racial aspects of it. I never said that the double standard was only a white/black issue, race plays a role but so does class, especially if you are anti-capitalist. None of the people who showed up on Jan. 6 were anti-capitalist, and most of them were middle class if not wealthy.

This goes back again to a dialectical approach to understanding these things. Dialectics looks at the connections between different things, in this case race and class. To focus on one or the other leads to an overly simple explanation. Instead, look to the connections between race and class, including the historical aspects of this over time, and you get a better picture of what is going on.

A dialectical approach helps you understand the complex nature of society as a whole instead of seeing things in isolation. Even the obsession some people have with law and order and crime suggests a kind of tunnel vision on their part. People who are concerned about "street crime" do not seem that troubled by Wall St. banks sucking all the resources out of society, profiting off debt and other non-productive activities, or that 70,000 people a year die in this country because of lack of healthcare. Dialectics gives you a larger view of society by looking at the various parts of society that make up the whole.

Anyway, Barkow looks to the Eighth Amendment to the Constitution, or what we refer to as the Bill of Rights (the first ten amendments) which bans the use of "cruel and unusual punishment." She argues that the prohibition against cruel and unusual punishment should prohibit excessively long prison sentences as well:

As I have suggested elsewhere, clarifying and expanding the Eighth Amendment could help. It should specifically state that excessive terms of incarceration are prohibited, just as it bans excessive fines. It should expressly prohibit mandatory sentences so that every case gets the benefit of individualized attention by a judge. And it should insist that legislatures create a record showing that they considered empirical evidence about the law's likely impact. It is important to see that before any action can be undertaken, there must be some groundwork for this action in the Constitution. In this case she argues that the Eighth Amendment lays the groundwork that would make the movement towards shorter prison terms a legitimate, and legal course of action.

The third piece by Akhil Reed Amar, looks at the limitations on naturalized citizens for holding office, specifically the President. The Constitution states that only citizens born in the U.S. are eligible to be President of the U.S., as he says:

But those American citizens who happen to have been born abroad to non-American parents — and who later choose to become “naturalized” American citizens — are not the full legal equals of those of us born in the U.S. True, naturalized Americans have always been allowed to serve as cabinet secretaries, Supreme Court justices, senators and governors. And at the founding, anyone already a citizen could be president, regardless of birthplace. (Alexander Hamilton, for example, though born in the West Indies, was fully eligible to serve as president under the Constitution he himself helped draft.) But modern-day naturalized citizens are barred from the presidency simply because they were born in the wrong place to the wrong parents. We can look back to the readings from Bourne and Chesterton and relate their views on transnationalism or as Chesterton called it the "the nationalization of the internationalized" to this restriction. Do you think Bourne and Chesterton would be in favor of lifting this restriction? Do you think it is fair to continue this restriction, or should any citizen regardless of birth be eligible to one-day become President of the U.S.

The fourth piece by Elizabeth Price Foley argues for the importance of federalism. Federalism is a doctrine which divides the power of government between the federal government and states that retain some independence and autonomy. Some other countries have what is called a unitary government where the top-level of government appoints all the lower levels as well, thus power and control is in the hands of the top government officials. In our country, the governor of New York for example has certain freedoms to act that the President and Congress cannot limit. In practice, however, especially in recent times the extent and influence of the federal government has increased, mainly as a result of the influence the federal government has in directing funds for the states in multiple areas like education or even to maintain roads.

Foley argues that this expansion of government power threatens the idea of federalism which the Constitution is based on:

Federalism isn't about states' rights. It's about individual liberty. The Supreme Court emphasized this in Bond v. United States (2011): "By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake." And lest you think this emanates from the court's right wing, Bond was unanimous.
As the last line indicates however, this view has increasingly become seen as more of a conservative or right-wing opinion. She goes on to point out how the Supreme Court had recently ruled against certain aspects of the health care law that would force state governments to act.

The fifth piece by Alexander Keyssar argues to abolish the electoral college. We know the President is not elected through a direct popular vote, but is chosen by electors equal to each states representation in Congress, meaning that elections are decided on a state by state basis. This is one of the more well known and controversial aspects of the Constitution today. As he says:

Moreover, we have learned a lot in the last 225 years about shortcomings in the framers’ design: the person who wins the most votes doesn’t necessarily become president; the adoption of “winner take all” rules (permitted but not mandated by the Constitution) produces election campaigns that ignore most of the country and contribute to low turnout; the legislature of any state can decide to choose electors by itself and decline to hold an election at all; and the complex procedure for dealing with an election in which no candidate wins a clear majority of the electoral vote is fraught with peril. As a nation, we have come to embrace “one person, one vote” as a fundamental democratic principle, yet the allocation of electoral votes to the states violates that principle. It is hardly an accident that no other country in the world has imitated our Electoral College.

The sixth piece by Michael Rappaport looks at the process by which the Constitution is changed. Paradoxically he argues that the process of changing the Constitution has come to a point where it is virtually impossible to change. There are two methods for changing the Constitution. The first requires that 2/3 of both houses of Congress agree to an amendment which is then sent to the states to ratify, or approve of the proposed amendment. There is a second method but is has never been used as he says:

The second method is for two-thirds of the state legislatures to call for a constitutional convention that would then propose an amendment (which, again, would have to be ratified by the states). This second method has never been used, because the state legislatures fear a runaway convention. They are concerned that if they call a convention to draft a balanced budget amendment, the convention will end up proposing an amendment on same-sex marriage or school prayer. This argument matches up well with Foley's federalist argument since it reserves a more active role for the states, again quoting his argument:

The Constitution should be changed to eliminate the possibility of a runaway convention. The best way to do this is to dispense with a constitutional convention and instead have the state legislatures agree to propose a specific amendment. But any method that allows for a working alternative to Congress’s amendment monopoly would be an enormous improvement. 

The seventh piece by Melynda Price deals with another highly publicized and controversial aspect of the Constitution, the "right to bear arms" in the second amendment. Price who is in favor of abolishing this right argues:

I am not naïve enough to believe that doing away with the Second Amendment would do away with gun violence, but I know firsthand the impact of guns and gun shots on children. This nation was constructed and reconstructed in the aftermath of violent and bloody conflicts. Still, the Framers believed that not only the Constitution, but also the peaceful way the document was created, would penetrate the Americans' minds and change they engaged. The Constitution would be the only weapon needed unless there was an external enemy. Arguably, the issues of guns and the right to bear arms is one of the most controversial issues now. Even if you do believe firearms should be regulated, how would you regulate it?






The eight piece by Jenny Martinez deals with the interpretation of the Constitution in a more international setting, that being how important are treaties signed with other countries in the legal process of this country. Martinez points to what is called the "supremacy clause" in the Constitution, “Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

However she addresses the often conflicting tendency of courts to ignore treaties that have been signed with other countries, as she points out:

But the Supreme Court has interpreted the supremacy clause in ways that contradict its text and original purpose; the court has suggested that the clause doesn’t mean what it says as far as treaties are concerned. One of the strangest of these decisions came a few years ago in a case involving Texas’s failure to notify Mexican citizens facing the death penalty that they were entitled by a treaty to speak to their consulate. In that case, Medellín v. Texas, the Supreme Court held that the treaty (and a decision of the International Court of Justice interpreting it) weren’t actually enforceable against Texas. The ninth piece is by Randy Barnett and concerns the Commerce clause of the the Constitution. This gives Congress the power to regulate business in the country. Barnett argues that this power also has grown too much and exceeds what it is meant for. He argues the clause should be reworded as:

"The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States." Compared with its original text in the Constitution which is much shorter (Article 1 Section 8 Clause 3): "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Is this more complex version necessary? Barnett argues that this is more in line with the original intention, but he does not make an argument for why the original intention is better. In other words why is it better to return to the original meaning of the commerce clause, given that the environment is much more complex now and boundaries between states much less important?

The final piece by Pauline Maier looks at the most well known part of the Constitution, the first amendment to the Bill of Rights. However she argues that the wording of the text is flawed and argues it should be expanded on:

“Congress shall make no law” is a peculiarly stingy way to begin an amendment that protects the rights of conscience, speech, press, assembly and petition. James Madison proposed more capacious language for those rights. He would have said, for example, that “the civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.” He would also have stated that “the people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” She argues that this would clearly separate the protections giving to people and to corporations which also appeal to first amendment rights to justify lobbying the government.

These authors represent different political perspectives and isolate different problematic areas of the Constitutions which continue to be debated in the present. Some call for new interpretations of how we understand our rights, others for re-wording or altering certain parts of the text, others still call for getting rid of what they see as outdated features of the Constitution.

People often say that the Constitution is a "living document" meaning that it changes and adapts itself to fit the needs of the era. These writers and others suggest several ways in which the Constitution can be adapted. What areas of the Constitution would you try improve on? That would definitely be a question people should be asking themselves after reading this, would you choose something else? Do you find one of the writers more persuasive than others? What is offered here is of course only a little preview, but if you like any of these authors you should try reading up on them more.

Finally, I would like to add what I think is missing from this. It is interesting that not one of these writers thought to include things like a right to healthcare, housing, education, or other basic means of life. We will talk about this more when we talk about the different kinds of rights later in the class. In short, most other countries besides the US do recognize these as important social rights.

However, Franklin Roosevelt did speak of these as important rights, what he called an "Economic Bill of Rights" or even a Second Bill of Rights. Here is a link to him speaking about this in 1944.

https://fdrfoundation.org/a-second-bill-of-rights-video/

Here is the text of the speech which is slightly different.

https://www.ushistory.org/documents/economic_bill_of_rights.htm

He concludes by saying:

All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.

America's own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens.

In a similar fashion, Karl Marx once wrote: "The realm of freedom begins when the realm of necessity is left behind." In other words, you really are not free when you have to worry about securing the basic necessities of life, especially when this makes you dependent on others to secure these means (i.e. an employer). For all of the talk about our cherished freedoms in this country, if we adopt this definition then most people are not free. Some are, but just the top 10% or even 1%. This has always been an argument made by socialists, even before Marx, and I think it it is still one of the strongest arguments you can make, and really exposes the contradictions at the heart of our society: that we are not really free in spite of constantly being told that we are, which at least shows you that freedom is one of the most important things people can strive for. 

Marxian economists like Richard Wolff still make this argument today, in fact many do, but he seems to really emphasize this issue. How can you say you are free when you spend most of the hours of a day (at least 8 hours) for most of your life (30-40 years of your adult life) in the workplace which is basically run like a dictatorship?

The fact that things like healthcare are tied to your employment reduces freedom and makes you more dependent on your employer. Former Chair of the Federal Reserve, Alan Greenspan referred to this and the fact that workers are not asking for higher wages as the "traumatized worker" syndrome. He never used this phrase in public, but in private according to reporter Bob Woodward. He did publicly speak of "greater worker insecurity." Here is a link to an article about this: 

https://www.politifact.com/factchecks/2014/jul/21/facebook-posts/social-media-meme-says-alan-greenspan-said-insecur/

This has implications in foreign policy as well. We are constantly being told that America is spreading freedom around the world, but that is a lie and one easily shown by the record of supporting dictatorships, or the pointless devastation we have brought to countries like Vietnam, Afghanistan and Iraq. Now, as we are gearing up for another Cold War against China we are told that this is about "freedom v. authoritarianism," but it is really about preserving the capitalist American empire in the face of its greatest challenge since the Soviet Union, as well as justifying America's massive military expenditures, and finding a scapegoat to blame all the problems of America on, especially the persistence of poverty and the reduction of living standards for middle class Americans, which we are told is because China is "stealing American jobs" and things like that.

I have enjoyed reading the discussion posts so far. I am looking forward to hearing what people have to say about this and what these authors have said about the Constitution.

The Constitution and the Federalist

"Scene at the Signing of the Constitution," Howard Chandler Christy, 1940, U.S. Capitol, Washington D.C.

The Articles of Confederation established the first system of government, first ratified in 1777 and again in 1781. The period between 1783-1789 the government was organized according to the Articles of Confederation. Notably, this system of government had no president, there was a Congress of the Confederation but there was only one branch or house, instead of two, and there was no supreme court. The 13 states which were really more like separate countries at this point and had very broad powers, maintained their own state militias, and in many cases even printed their own money and came up with their own rules on trade. The general consensus on this period of time was that the government was weak and ineffective and as a result of this conflict and disorder was increasing within the states and even between the states.

In 1786, the Annapolis Convention met in Maryland. The major result of this convention was an agreement to set another Convention in Philadelphia with purposes of "amending" the Articles of Confederation. The result was between 1787-88 the Constitutional Convention met and produced an entirely new document and with that an entirely new system of government. This is the Constitution that most people are familiar with.

The Constitution is a rather short document consisting of seven articles that broadly lay out the powers and responsibilities of the government and its operation. You may have noticed The Declaration of Independence was not very long either. When your aim is to persuade people often times keeping things short works much better than writing long volumes of text. Public meetings and gathering-places were thus an integral part of the political process and a means by which "ideology" or a set of political beliefs and attitudes, becomes meaningful for individuals.

The US Constitution, despite its many flaws, is an important moment in world history, as it marks the transition to a "modern" society. Sociologists like Emile Durkheim and Jürgen Habermas have argued that the evolution of law from something based on religion or divine authority, to a "rational consensus" based on argument and agreement is one of the major dividing lines between a pre-modern, or traditional, society from a modern one. Laws have of course existed for centuries and millennia going back to things like "an eye for an eye" in Hammurabi's code of law. If you look throughout history most civilizations base political authority on divine inspiration. Europeans had the doctrine of the "divine right of kings"; imperial China had the "mandate of heaven"; Islam has the "caliphate"; Japan has its Shinto religion that deifies the emperor, etc. There are still countries where the law is based on religion like Saudi Arabia and Iran. 

On the other hand, traditional authorities may have had some enlightened ideas on debt forgiveness, as the economist Michael Hudson has argued. Debt forgiveness was a regular institution in ancient societies, who realized that debt would always increase faster than economic growth, resulting in large debts. Economic concentration of power, leads to political concentration of power, as happened in the Roman republic, leading to the growth of an oligarchy, or creditor class, that leverage power through debt. Ancient rulers like Hammurabi realized this, that rich elites pose a threat to their rule, and would periodically issue debt forgiveness, this was possible since most debts were owed to the state anyway in the form of taxes, but would have the effect of rebalancing the economy by providing more resources to the poor. This has interesting parallels with today's society as well, since consumer debt is at all time highs. High levels of debt, in particular private debt, is easy to explain when you consider that wages have been stagnant since the 1970s, despite record breaking productivity growth and corporate profits:
https://michael-hudson.com/2018/08/and-forgive-them-their-debts/

Wages = hourly compensation

The US Constitution and Declaration of Independence are based, not on divine authority, but reasonable consensus, the laws exist not because they are divinely inspired, but because people agree that we should have laws, and gain legitimacy from the "consent of the governed." Even the idea of rights, which the Declaration says comes from the Creator, are based on consensus. We have rights, because we agree that we should have rights, and their existence depends on this belief. As Habermas argues, the values of liberals like Jefferson had contradictions, and were used in ways to exclude or conceal the lack of power of black people, women, and indigenous people in the US, but as he says these ideas were "more than ideology" and set in motion social forces that they could not contain or control. The Constitution is flawed, it defends slavery, but it marks an important moment in world history, and after it, most countries would move towards constitutional government, arguably creating "better" and more inclusive constitutions, with more rights. Since we can acknowledge the Constitution is a human creation, not divine, of course allows us to remake or revise the Constitution, as shown in the 27 amendments to the Constitution. Even the Soviet Union and Communist China had constitutions that were very extensive, but only a formality, and do not provide the rights inscribed within. Wolin's critique of American institutions builds on this idea: the formality of democracy exists, but the substance is missing. 

There were many debates within the Convention (the official records of which are still sealed). Many of the conflicts revolved around sharing power between the large states and the smaller states; questions of national debt and state debt incurred during the war; and of course slavery.

Montesquieu

The first three articles set up the basic separation of power between the Legislative, Executive, and Judicial branches of the federal government. Many of the Enlightenment thinkers like Locke or the French thinker Montesquieu (1689-1755) adopted similar frameworks for the division of power and it has become accepted as standard in virtually every government in the world.

 Originally, the legislative branch (the law-making part of government) was supposed to be superior. The British Parliament, which was an inspiration to the founders, was meant to place a check on the power of the "king" and also to protect the "private property" of individuals. The executive branch which is charged with physically carrying out the laws is thus dependent on the legislature for funding (it must get its permission more or less) and the power to raise taxes rests with the legislature as well. 

The Legislative branch is entrusted with making all laws for the country and is composed of two branches: the House of Representatives and the Senate. Representatives are drawn based upon the population of the state. Larger states with larger populations have more representatives. Also if the population of the state increases past a certain point it will gain more representatives (or lose them if the population decreases). Representatives are drawn from different districts drawn up by the states who also control the laws for voting in their respective states. All bills for raising revenue are supposed to originate with the House since it is the more democratic branch of government. Because of its size the position of a Speaker for the House is created as well. The Senate is composed of two senators from each state regardless of size. This was intended as a compromise to give smaller states more equality in government. Senators were originally chosen by the state legislature, and not by the people directly, that lasted until the Progressive era in 1913. 

In order for proposed legislation to become law it must pass through both houses of Congress and be approved by the president. The president can veto laws, but the Congress can override the veto if it gets a 2/3 majority in both houses. 

This is probably the most well known example of the second major principle guiding the Constitution, the system of checks and balances. Similar to the separation of powers, this principle stipulates that the different branches of government have to be in agreement on major decisions and that each branch has the power to limit the power of the other branch. The idea of separation of powers would be pretty much meaningless if it did not include this as well. These two principles were designed above all else to prevent tyranny, even at the expense of effective government, or what Hamilton would call "energetic government." 

This is controversial, because although preventing some (not all) abuses of government authority leads to what is called "gridlock." This was common during the Obama administration. After 2010, Republicans controlled the House of Representatives, while the Senate was Democratic until 2014, but even controlling one branch of the Congress is enough to block any  policies favored by the executive. This is even more complicated because of the Senate filibuster. Throughout most of its existence the Senate has decided most bills through a simple majority, however, since the 1970s, they have relied more on the filibuster that require 60 votes. Leaving aside that terms like filibuster and gerrymandering are notoriously unclear in their meaning, the filibuster is basically a law that allows Senators to speak for an unlimited amount of time, effectively stalling the Senate, unless you get 60 votes to end the filibuster. The practical importance of this is that the rules of the Senate have been rewritten so you need 60 votes instead of 51. This was important during the passage of "Obamacare," as Democrats had more than 51 votes but did not have 60 (after Ted Kennedy died), and were forced to abandon a "public option." This is also notable because the filibuster it is not in the Constitution. Eventually, Congressional gridlock grew so bad in the second term of the Obama administration, that the "nuclear option" was used to effectively end the filibuster, this was first done in a limited capacity by the Democrats during Obama's second term, but the practice has continued under Republicans, most notably pushing through deeply unpopular tax cuts for the wealthy. 

The first article is the longest, again an indication that the legislative branch is supposed to be the most important and lays out several other responsibilities of the government over things like immigration and trade. 

 For example, the Commerce Clause in Section 8: "To regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes." This short passage actually provides the legal justification for Congress to pass laws regulating things like healthcare, or even narcotics, which are made "illegal" by an act of Congress. 

There is also the Necessary and Proper Clause: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." This clause is controversial because it gives power to Congress to pass laws "necessary" to accomplish its goals. This of course sparks controversy over how the Constitution is interpreted. 

Some favor what they call a strict interpretation of the Constitution meaning the government has no right to pass any laws or act in any way not explicitly mentioned in the Constitution. This interpretation is mostly used by conservatives to limit the government's ability to regulate business or provide "privileges" to minority groups. Others favor a more broad interpretation of the Constitution and use this clause as a legal justification.

The second article deals with the executive branch of government headed by the President of the United States. This article explains the controversial electoral college, an institution that was set up to prevent presidential elections from being decided directly by the people. Instead votes are allocated based upon a number of "electoral votes" possessed by the individual states not by the people of the states. So when we count the results of the election we count the states the president won, not the people who voted for the president. This system tends to benefit the less popular candidate: some elections that were very close in terms of popular vote seemed like huge victories in terms of electoral votes, some have even lost the popular vote and still won in the electoral college like George Bush in 2000 (even counting Florida, Bush still lost the popular vote, though there is reason to suggest Gore should have won Florida). Of course, the election between Clinton and Trump showed this even more, with Clinton winning 3 million more votes, but losing in electoral votes. 

The major flaw in the electoral college is the idea of "wasted votes." Consider a state like New York. Since New York traditionally votes for the Democratic candidate in Presidential elections (it did go for Reagan though twice in the 1980s), in theory only one vote more than the Republican candidate is necessary to win the election. To use small numbers if a Republican gets 1,000 votes in NY, the Democratic candidate only needs 1,001 votes to receive the electoral votes for the whole state. If 5,000 people voted, most of those votes will be wasted, since they will not add anything to winning the election. Now, consider real life population demographics, and the fact that the population of New York outweighs the populations of so many other states, with a few exceptions, and it is easy to see why many would criticize this system, since the votes of many citizens of New York are not counted, and thus under-represented compared to smaller states.

For example, in the 2016 election Hillary Clinton won the state of New York with 4.5 million votes over Trump's 2.8, however, because of the electoral college that means that roughly 1.7 million votes are "wasted" because Clinton only needs to get one more vote than Trump to win all the electoral votes from that state (29). This process would be repeated for all the states, that is how you get to a result where Clinton had nearly 3 million votes more than Trump, but lost, those 3 million votes are wasted.
https://en.wikipedia.org/wiki/United_States_presidential_election_in_New_York,_2016

In terms of "electoral systems," or a way of selecting candidates for election, this is known as single-member district (SMD), and all elections in the U.S. are decided this way including for Congress and local government as well. An alternative method is known as proportional representation, where the proportion of votes captured by a political party equates into the proportion of representatives they have in the legislature or Congress. In this system votes are not wasted, to go back to our example, all of the votes cast in New York will then go towards the overall proportion of votes received by a party which would increase the proportion of their party representatives in Congress. However in this system there is less of a personal relationship between members of the legislature and their voters or constituents. The SMD system, since it focuses on a specific person in a specific district tends to establish more of a personal relationship between the candidate and potential voters. Although, in reality, most people have very little contact with their representatives in Congress.

The impeachment process is also explained in Article II as it is in Article I. A president can be impeached or removed from office but it has to follow a precise procedure. The House must formally lay charges against the president, for "high crimes and misdemeanors," and the Senate then becomes like a court where the president is tried. The House brings the charges and acts as prosecutor, but the Senate votes on it and acts as jury. The House only requires a simple majority to bring charges, but the Senate requires a 2/3 majority to convict.

There have only been four impeachments in U.S. history against Andrew Johnson after the Civil War for supposedly sabotaging Reconstruction in the South, and Bill Clinton in 1998, and the two impeachments against Trump (the only President to be impeached twice). So far, no President has ever been convicted and removed from office. 

The primary responsibility of the president is dealing with foreign affairs, and in this area the president has more room to act without the approval of Congress. Notably, the power to "declare war" on another country rests with Congress, yet this is another aspect we do not follow anymore, there has not been a "declared" war since World War II. 

The third article deals with the Supreme Court and the Judicial branch which is charged with interpreting the laws of the country in reference to the Constitution. Judges are appointed by life-terms, something which is highly controversial. In the next class we will explore ideas like term limits for judges. Although not provided in the Constitution this evolved into the power of "judicial review" which gives the court power not only to interpret laws in reference to the Constitution in specific cases, but to strike down or cancel laws which conflict with it. Courts can also overturn previous cases. The most recent example is the court overturning Roe v. Wade, which we will talk about more when we get to the section on the Judicial Branch later in the semester. 

The article also separates "original jurisdiction" from "appellate jurisdiction." Original jurisdiction refers to cases that would go directly to the Supreme Court. They are fairly few mostly affecting cases involving foreign officials, federal officials, or if the U.S. itself is a party in a case including treason. Most of the time, and most of the famous cases that have come before the court, the court was hearing a case on appeal from a lower court. People appeal to the Supreme Court after they have gone through lower courts, although the Supreme Court can choose not to hear a case. The Supreme Court receives thousands of requests a year, but only grants about a 100 of these requests a year. Most crimes are under the jurisdiction of the state court, including the most serious crime murder. If you kill someone you will most likely be tried by the state not the federal government, unless you kill a federal official. However the Supreme Court does have the power to override the decisions of lower courts.

The remaining articles deal with the relationship between the federal government and the states, the process of adding amendments to the Constitution, and the process of ratifying or approving the Constitution. Following that is a list of the Bill of Rights and the other amendments to the Constitution. Article IV deals with some of the rights of the states and their relation to the government. The U.S. government is set up as a federal system, this means there is a division of power between the U.S. government, the state governments, as well as local municipal government. These different levels of government also follow the Legislative, Executive, and Judicial division of power. The American political system is very complex because of this. Many states like France, the United Kingdom, and Japan have unitary states meaning there is one government authority and all local officials are usually appointed by higher officials. Germany has a federal system, although it is only made up of 16 states instead of the 50 states now in the U.S. (originally 13 of course). India is also a federal system made up of 28 states and 7 "union territories" directly administered by the federal government. Russia is a federal state made up of 83 different units. A federal system is most common in countries where there is either a lot of ethnic division like in Russia or India or smaller autonomous states are now part of the unified federal state like in the case of the U.S. or Germany.

There is a controversial passage in Article IV that protects slavery: "No person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law of Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due." There is also a clause in Article 1 Section 2 that refers to counting slaves as 3/5 of a person for determining representatives and taxes. 

There was controversy over this when in 2011 the new Republican majority House of Representatives began their session by reading out the Constitution, however they omitted these controversial passages. What is the meaning of reading out the Constitution word-for-word except to symbolically show they are adhering to the "true principles" of the Constitution, and implying that the country has lost its way perhaps. Yet, does it not defeat the purpose when they are not willing to confront these aspects of the American past, in effect censoring aspects of American history that do not fit their idealized vision of American history? It undermines the whole idea that they are trying to return to the "true" America, when their idea of truth is so selective and sanitized, maybe they are unfamiliar with the saying, "the truth hurts." This has serious consequences, it was the failure to deal with slavery in a system supposedly based on open debate that eventually led to the breakdown of the system and the Civil War (the word "slave" or "slavery" is nowhere mentioned directly in the Constitution). Censorship today suggests a massive failure to learn the lessons of history more than anything else. 

After the Convention had completed its work, copies of the Constitution were circulated throughout the states. People in the states elected delegates to serve on state conventions to ratify the Constitution. The first state to ratify was Delaware in late 1787, New Hampshire was the decisive ninth state to ratify in June 1788. Nine states out of thirteen provided the 2/3 majority needed to ratify the Constitution. Two states, North Carolina and Rhode Island did not ratify the Constitution till after George Washington was elected president. The system of government established officially went into effect March 4th, 1789. Washington was inaugurated as president April 30th, 1789, the only president to be unanimously elected (both terms).

Supporters of the Constitution began to refer to themselves as "federalists" for the support of the federal system of government. Opponents who favored independence for states and wanted to keep the federal government weak, were referred to as "anti-federalists." 

The Federalist Papers were written by James Madison (1751-1836) who would become the 4th President of the US, Alexander Hamilton (1757-1804), and John Jay (1745-1829). To persuade the public to support the ratification of the Constitution, they published articles in New York newspapers under the pseudonym, or pen-name, Publius. These essays, now collected as a whole, form the definitive interpretation of the Constitution, from pretty much the same people who wrote it, Madison and Hamilton in particular. 

Federalist No. 10, for example, is important because it lays out the theoretical framework for the current system of government, in other words why do we have this government in the first place? Madison makes it clear that the purposes of the federal government, or the Union, the union of states, is beneficial because it will best control the effects of "factions," what he calls the "disease" of all popular governments. Today, we call them "special interests" or just interest groups, but the meaning is the same. Some people seem to think the government was founded by moral idealists, but on the contrary, the founders had a pessimistic view of human conduct. Madison's theory presupposes the theory of pluralism associated with Dahl, Bachrach, and Baratz. Modern pluralists, like the federalists back then, argue the only way to control factions are to balance them against each other. Madison cautions that you cannot even deal with the "causes" of faction because to do that would very likely violate our liberties, but can only control the "effects" of faction, as he says:

James Madison

The latent causes of faction are thus sown in the nature of man, and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation and practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society.

In language that sounds very much like Karl Marx and Friedrich Engels, Madison argues for the centrality of class conflict in politics, although this was written decades before Marx is even born. Nor, was Madison the only great political thinker to come to this conclusion, it is clearly evident even in Plato and Aristotle, and indeed all major political philosophers.

Where Marx sought the abolition of class conflict through socialism, Madison seeks to contain class conflict through the Constitution. The greatest danger from factions, Madison thought, were "majority factions" (i.e. the poor). Madison is confident that a minority faction can be handled by the mechanisms of popular government, although modern research has cast doubt on this assumption. Majority factions have spelt doom for democratic governments since ancient times, Madison argues. He believes that the Constitution contains the "cure" for the democratic "disease." He singles out two aspects: representative government and the large size of the state. He identifies these as the major difference between "republican" and "democratic" government. Democracy was kind of a dirty word for many of the founders and they preferred "republic" (Latin for "the people's business") instead. The point he is trying to make is that he believes that voting for representatives, from among the "wise property owners," would add stability to the government. 

In a reversal of ancient political philosophy: he argues the large size of the republic is more stable than a smaller democracy (the ancient polis) which must remain close to the local people. His arguments for size are: 

a) The more people there are in the country the more chance competent and capable people will be found for office where you are more limited in choices in a smaller community. 

b) And that in a larger population it will be harder to fool all the people. 

c) He also argues that a larger population makes it harder for factions to dominate, as he says: "Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other"

Again, the economic dimensions of this conflict are clear to anyone who has ever read The Federalist Papers: "A rage for paper money, for an abolition of debts, for an equal division of property, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State" 

In No.s 39 and 48 he outlines some of the principles of the federal system and when it impacts the states (federal) and when it will impact the people directly (national) and outlines the importance of "separation of powers" and the dangers of legislative tyranny if too much power is concentrated in one branch of government.

In No. 51 he again outlines the dangers of factions and again suggests that the diversity of society will reduce the influence of factions. This is called "pluralism" today and is still dominant in American politics, for example in Robert Dahl's research on political elites:

Whilst all authority in it will be derived from and dependent on society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of the individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of the country and number of people comprehended under the same government.

 Madison's essays also deal with the infamous 3/5 compromise in the Constitution. Since the number of people in your state influences the number of representatives your state gets, Southern politicians hypocritically thought to count slaves as people, in order to increase their representation without of course granting any political rights to slaves. Northerners, hardly more moral, objected that slaves are property not people, and should not be counted. The "rational" compromise was to count slaves as 3/5 of a person, and is found in the Constitution as I said in the previous lecture.


85 articles were written altogether. Madison wrote 29, Hamilton wrote 51, with some debates over authorship, (Jay wrote five and is hardly mentioned).

Hamilton’s articles 

Alexander Hamilton

are focused on pointing out the weaknesses of the present government under the articles of Confederation, and advocating the stronger national government, or in Hamilton’s terms, "energetic government," that he argues is the design of the Constitution.

No. 78 is an early defense of the principle of "judicial review" that gives power to the Supreme Court, to strike down laws, or other actions, that contradicts the Constitution. This concept would not be practiced by the judicial branch until the landmark Supreme Court case Marbury v. Madison in 1803.

What were the flaws of the government under the Articles of Confederation that Hamilton was specifically concerned with? Why was a strong national government the solution to the problems that Hamilton saw? Consider the following quote by Hamilton from no. 15, “Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged", another way of stating the idea of checks and balances: power checks power.

In Federalist 23, Hamilton says this about the Union, the term used to describe the national government as representing all the states together: “The principal purposes to be answered by union are these--the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.” 

“Internal convulsions” is most likely a reference to Shay’s Rebellion, an uprising of farmers in Massachusetts in 1786 protesting the high levels of debt they incurred, many of them war veterans, and whose houses were being foreclosed on.

Hamilton was less restrained about using military force than most of the other founders, even George Washington. Consider this quote also from Federalist 23: 

The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means to which may be necessary to satisfy them [Hamilton’s italics].

In Federalist 78, Hamilton gives his argument for judicial review. He says:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

Also: 

A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

How does this relate back to the idea of separation of powers and checks and balances, which define the American system?

Although Hamilton invokes “the people” to justify the power of the courts over the legislature, the courts were often times used to strike down laws that were seen as hurtful to business interests. Since the legislature was more democratic there were fears that popular interests would pass laws to redistribute wealth, or tax profits.

These documents make up what G.K. Chesterton called the "creed of America", and form the foundation of American political culture.  However, societies have always had to create some kind of mechanism to transmit culture from generation to generation. Traditionally, this role has been played by religion and the education system. At the same time, every generation has to also reinterpret these values to some extent to fit into modern circumstances, something definitely easier said than done.

Political Identity & Political Culture

How do we define the political culture of the US? Does this culture actually contribute to, and support, democratic self-government, as we are commonly led to believe? These are questions asked by the most important political thinkers.

Randolph Bourne
1886-1918

A good example would be the next essay, "Trans-National America" (1916), published in the The Atlantic, an influential literary and political newsmagazine, founded by American poets Ralph Waldo Emerson and Henry Wadsworth Longfellow, in 1859. "Trans" is a prefix that means beyond, so, in a sense, he is arguing for a position "beyond nationalism." The essay is divided into three sections: 
I. He explains the failure of the "melting pot" as a metaphor for assimilation; II. He argues that true "genius" of America is its ability to incorporate diverse cultures into a national culture based on citizenship, rather than ethnicity; III. Finally he argues for some ways to further "transnational" America, and emphasizes cultural diversity in the universities, and dual-citizenship status as means to further this goal. If the nation is a cultural entity, then he is arguing for going beyond a certain culture, but what is that culture? The so-called cult of Anglo-Saxons common during this period of time, tracing its lineage to the Pilgrims and the Puritans. 

Bourne, is writing shortly before the U.S. enters World War I in 1917, before the US becomes an empire, as it will after the Second World War. During the war (1914-1918), the US was allied with the British, the French, and the Russians, against the Germans and the Austrians. This essay is as much an anti-war essay as it is a defense of what we today call "multiculturalism," or "cosmopolitanism." The year after this essay is published, the U.S. Congress, at the urging of President Woodrow Wilson, will declare war on Germany under the pretext of "making the world safe for democracy," and will later pass the Immigration Act of 1917 and 1918, along with the Espionage and Sedition Acts in 1917 and 1918. 

These acts gave the state tremendous power to detain and deport immigrants (or hyphenated Americans) suspected of sabotage, espionage, or other subversive activity. Domestic dissent, even free speech, was suppressed as radical leaders like Eugene Debs of the Socialist Party were thrown in jail. German language was banned in schools, German food was renamed (frankfurter to hot dog, sauerkraut became "liberty cabbage," etc.). In solidarity with their English allies, many parades and public displays were held emphasizing the nation's Anglo-Saxon heritage, and the term Anglo-American was invented to separate the British and Americans from other races and ethnicities. 

After the war, increasingly more restrictive immigration laws would be passed, like the national origins quota, which significantly reduced the flow of immigration, and the total number of immigrants in the US, until the late 1960s when these laws were repealed. As economists like Richard Wolf have argued, immigration policy in the US has always been dictated by business interests. In the preceding period, between 1870-1920, open immigration policies were the norm, as business owners relied upon the infusion of cheap labor to increase their profits and fuel economic growth. However, the growing size of the population, and the increasing radicalism of many segments of the working class, led to business owners changing preferences by the 1920s, preferring a smaller, more manageable working class, as well as tendency to focus more on financial activities and speculation. The current period of more open immigration is also favored by business interests, who are able, once again, to exploit low wage labor in the era of globalization.
https://www.youtube.com/watch?v=hW23-k5WRJA

The Espionage Act is still in force today and forms the legal basis of the so-called "war on whistleblowers," a war which was carried out under the Obama administration and continued under Trump. It is likely that Julian Assange will be brought to the U.S. to stand trial. If convicted he could serve life in prison. His only real "crime" is exposing the war crimes committed by the U.S. and other governments throughout the world.

https://www.politifact.com/punditfact/statements/2014/jan/10/jake-tapper/cnns-tapper-obama-has-used-espionage-act-more-all-/

The world economy suffered greatly during the war years, but the end of war saw a brief economic boom that lasted, until the stock market collapsed in 1929. By the 1920s, many modern technologies have been created. Designs and operations are primitive but people are able to buy or use the following: automobiles, airplanes, electric lighting (the first electric automobile was invented in 1892), electric stoves, other electric household appliances, washing machines, refrigerators, air conditioning, elevators, credit cards, color photography, telephones, radio, movies, caterpillar tractors, skyscrapers, and many other inventions. These scientific achievements also helped reinforce the sense of cultural superiority of "Anglo-Americans". Years later, in 1959, then Vice-President Richard Nixon would have his famous "kitchen debate" with Soviet Premier Nikita Khrushchev. Nixon would argue for the supremacy of US capitalism over Soviet communism based on its superior standard of living, playing up the ease and luxury of consumerism that became identified with the American way of life, and as mentioned, the source of American soft power on the world stage. 

Even today, the enthusiasm people have over technology giants like Apple, Google, and Facebook speaks to the important role technology plays in legitimizing  capitalist economic development. The United Nations defines what it calls "human development" in terms of education, health, and income, and has a "human development index" based on this. In communist China, the one-party government maintains its hold on power through economic development, raising the standard of living, even as it brutally represses political dissent. In short, economic development has always been used by political authorities to maintain power, both domestically and internationally.  https://en.wikipedia.org/wiki/Human_Development_Index

Obviously, American culture in some part is derived from the Anglo-Saxon (British) colonists who settled here in the 17th century, displacing the original Native American settlers. The most notable contribution are political institutions modeled after Anglo-Saxon tribal customs, including representative government and elected monarchs, but some have argued American institutions may also be modeled from the Iroquois Confederation as well. In any case, Bourne argues over time this culture has become rigid, and difficult, if not impossible, to change. Furthermore, he argues the imposition of Anglo-Saxon culture upon other ethnic groups, what he refers to as the melting pot, has been a dismal failure and has had the opposite effect of strengthening loyalty to ethnic culture:

To face the fact that our aliens are already strong enough to take a share in the direction of their own destiny, and that the strong cultural movements represented by the foreign press, schools, and colonies are a challenge to our facile attempts, is not, however, to admit the failure of Americanization. It is not to fear the failure of democracy. It is rather to urge us to an investigation of what Americanism may rightly mean. It is to ask ourselves whether our ideal has been broad or narrow--whether perhaps the time has not come to assert a higher ideal than the "melting-pot" Surely we cannot be certain of our spiritual democracy when, claiming to melt the nations within us to a comprehension of our free and democratic institutions, we fly into panic at the first sign of their own will and tendency. We act as if we wanted Americanization to take place only on our own terms, and not by the consent of the governed. All our elaborate machinery of settlement and school and union, of social and political naturalization, however, will move with friction just in so far as it neglects to take into account this strong and virile insistence that America shall be what the immigrant will have a hand in making it, and not what a ruling class, descendant of those British stocks which were the first permanent immigrants, decide that America shall be made. This is the condition which confronts us, and which demands a clear and general readjustment of our attitude and our ideal.

However, he also seems to suggest that there is no real American national culture, that in fact it has always been sort of a mash-up between all kinds of different cultures–the Anglo-Saxon being just more predominant, but never exclusively. What he wants to do is separate Anglo-Saxon culture from its identification with "America." American culture then is really a mixture of different cultures and customs, that collectively form a unique, transnational political culture. He refers to this as a "federation of cultures," playing up the fact the US does have a federal system of government which is somewhat distinctive. In a federal system local political units, in this case, state and municipal governments, have some degree of independence and autonomy from the central government. So, the US is literally a federation of states, however, the US federal system has coalesced around at least two geographical regions, the North and South, arguably the West as well defined by their cultures. The modern day equivalent would be the blue state and red state distinction, or roughly speaking the East and West coasts "versus" the interior of the country. In a sense, Bourne is quite right to speak of a federation of cultures, rather than a federation of states since culture is what links these regions together, even more than geography. Bourne is also quite critical of modern consumerism which he sees as fake substitute for culture. When he speaks of the culture of the North and South, he is referring to the old ways of life stretching back to colonial days, but fading with the advent of modern mass society. Aside from that, he sees no distinctive American culture, and so it is quite absurd to ask people to assimilate to something which does not exist. Assimilation really means to assimilate to consumer culture and most importantly become part of the working class, and fill some niche within the various layers of modern production.

In the North where this mixing has already taken place to a large extent, the whole region has grown and developed, it is in the South which has remained more "Anglo-Saxon" that has lagged behind in development:

The South, in fact, while this vast Northern development has gone on, still remains an English colony, stagnant and complacent, having progressed scarcely beyond the early Victorian era. It is culturally sterile because it has had no advantage of cross-fertilization like the Northern states....The foreign cultures have not been melted down or run together, made into some homogeneous Americanism, but have remained distinct but cooperating to the greater glory and benefit, not only of themselves but of all the native "Americanism" around them.

In this regard, he sees the process of "Americanization" as flawed, as he says: 

But if freedom means a democratic cooperation in determining the ideals and purposes and industrial and social institutions of a country, then the immigrant has not been free, and the Anglo-Saxon element is guilty of just what every dominant race is guilty of in every European country: the imposition of its culture upon the minority peoples.

Ironically, Anglo-Saxon it is itself a mix. The Saxons are a German tribe. The Angles were another Germanic tribe that settled the land earlier and were the original inhabitants of the land that is England (Angland) when the Saxons arrived beginning around the 5th century CE. The English language is actually considered a Germanic language, that has over time synthesized different elements of Latin, French, Scandinavian and other languages–all of these linguistic influences can be traced to foreign conquerors.

What Bourne's essay suggests, in part, is that national identities are social constructions, and in the modern era people are more aware of these identities, as opposed to a biological or mystical explanation for nationalism. Consider the Germans: Deutschland means "Germany" but it also means "Fatherland" as in the word patria, as if they were somehow the children of the land they were born on (nativus or natus). It also explains in part why symbolic depictions of the nation are commonly portrayed as a woman or maternal figure:

"Germania," Philipp Veit, 1848

"Columbia," from WWI poster an early personification of U.S. predating "Uncle Sam." The Columbia Pictures logo depicts the same figure.

 Of course paternity or maternity suggests a sense of obligation to the parent as well. Instead, nationality is a more or less made up idea. This is not to deny the influence or power that this idea has over people. In fact, cultural constructs such as nationalism seem to have even more influence over people, than supposedly "natural behavior." Nationalism persists: because many share this value already, because it is supported by the state, and because it gives people a sense of meaning in life.

However, by becoming more self-conscious of the influence of culture over people's lives, gives people greater control over the shape of this culture. So in one regard, Bourne seeks to strip away the mask that conceals the prejudice behind the process of Americanization; at the same time, he does not want to abolish citizenship or the process of Americanization, but to redefine it in a way that allows more equal expression from different groups in society, as he says "Let us not speak, of inferior races, but of inferior civilizations. We are all to educate and be educated. These peoples in America are in a common enterprise. It is not what we are now that concerns us, but what this plastic next generation might become in the light of a new cosmopolitan ideal." (Cosmopolitan meaning "cosmos" as in universe and "polis" meaning city-state or political community, universal political community. Or, cosmopolitan is a derivative of metropolitan or metropolis, also a Greek word, meaning "mother city"–like Fatherland using familial language to describe a relationship to land and community.

He argues that the growth of nationalism is dangerous and has contributed greatly to the violence of the war. The U.S. is unique in that it contains all the diversity of Europe without the bitter antagonisms that characterize actual life in Europe:

The voices which have cried for a tight and jealous nationalism of the European pattern are failing. From that ideal, however valiantly and disinterestedly it has been set for us, time and tendency have moved us further and further away. What we have achieved has been rather a cosmopolitan federation of national colonies, of foreign cultures, from whom the sting of devastating competition has been removed. America is already the world-federation in miniature, the continent where for the first time in history has been achieved that miracle of hope, the peaceful living side by side, with character substantially preserved, of the most heterogeneous peoples under the sun. Nowhere else has such contiguity been anything but the breeder of misery. Here, notwithstanding our tragic failures of adjustment, the outlines are already too clear not to give us a new vision and a new-orientation of the American mind in the world.

Bourne is not a total relativist and does judge cultures as being better than others. He only looks at different European cultures, the major immigrant groups at this time. Until the 1960s, the U.S. would restrict immigration from most non-European states. Bourne also does not really say anything about race relations between blacks and whites, in this essay at least. He does suggest that at an institutional level, colleges and universities play a role in developing this cosmopolitan ideal:

 In them he finds the cosmopolitan note. In these youths, foreign-born or the children of foreign-born parents, he is likely to find many of his old inbred morbid problems washed away. These friends are oblivious to the repressions of that tight little society in which he so provincially grew up. He has a pleasurable sense of liberation from the stale and familiar attitudes of those whose ingrowing culture has scarcely created anything vital for his America of to-day. He breathes a larger air. In his new enthusiasms for continental literature, for unplumbed Russian depths, for French clarity of thought, for Teuton philosophies of power, he feels himself citizen of a larger world. He may be absurdly superficial, his outward-reaching wonder may ignore all the stiller and homelier virtues of his Anglo-Saxon home, but he has at least found the clue to that international mind which will be essential to all men and women of good-will if they are ever to save this Western world of ours from suicide.

He also advocates allowing immigrants to hold dual citizenship:

Dual citizenship we may have to recognize as the rudimentary form of that international citizenship to which, if our words mean anything, we aspire. We have assumed unquestioningly that mere participation in the political life of the United States must cut the new citizen off from all sympathy with his old allegiance. Anything but a bodily transfer of devotion from one sovereignty to another has been viewed as a sort of moral treason against the Republic. We have insisted that the immigrant whom we welcomed escaping from the very exclusive nationalism of his European home shall forthwith adopt a nationalism just as exclusive, just as narrow, and even less legitimate because it is founded on no warm traditions of his own. Yet a nation like France is said to permit a formal and legal dual citizenship even at the present time. Though a citizen of hers may pretend to cast off his allegiance in favor of some other sovereignty, he is still subject to her laws when he returns. Once a citizen, always a citizen, no matter how many new-citizenships he may embrace. And such a dual citizenship seems to us sound and right. For it recognizes that, although the Frenchman may accept the formal institutional framework of his new country and indeed become intensely loyal to it, yet his Frenchness he will never lose. What makes up the fabric of his soul will always be of this Frenchness,-so that unless he becomes utterly degenerate he will always to some degree dwell still in his native environment .

Bourne himself was an intellectual, but one who was limited by various physical disabilities from participating in public life. He was however a prolific writer and contributor to several influential political news magazines like The Atlantic, The New Republic, and The Seven Arts. Sadly, he died at the age of 32, from the influenza pandemic unleashed in the aftermath of World War I. Before his death, Bourne was considered one of the leading Progressive intellectuals.

The obvious question to ask then as we conclude is to what extent has this vision been achieved in the U.S. in the present today? Is Bourne's idea practical, and if so what are the obstacles that prevent its realization?

The other essay we are reading  is actually the first chapter, "What is America?" in the book What I Saw in America, by British writer G.K. Chesterton (1874-1936) in 1922.  Bourne is writing when World War I is still going and as a public intellectual figure, Bourne's writing is serious and meant to persuade and is moralistic to that extent. Chesterton is writing in the aftermath of the war and shows a more ironic and almost amused nature in his writings, it does not have the moral urgency of Bourne's writing, but in its own way it could be equally persuasive for pointing out absurd aspects of modern life. Bourne is often championed by modern advocates of multiculturalism; Chesterton is also was an inspiration for The Sandman comic book series published in the 1990s.

Chesterton, Vanity Fair

 The essay we are reading is his reflection about filling out his passport information at the American Consulate. This leads him to question how much do people really learn when they travel. There are many distortions that prevent people from experiencing another culture. For one, people have a conservative instinct to want to stay by what is familiar, "to travel is to leave the inside and draw dangerously near the outside" (Chesterton, p. 1), in other words the inside representing the family or the community and the outside being the outside world. This can turn into hostility towards those who seem different.

Another reaction is to find amusement in different cultures. He finds no fault in being "amused" by another culture (although that is debatable) but argues, "where they are wrong is that they take their own amusement seriously" (p. 1). In other words most people never challenge their own superficial first impressions and are content with getting by on that. This second reaction he regards as clearly better than aggression or hostility, and argues that under certain conditions amusement can be constructive: "But I believe there is a better way which largely consists of laughter; a form of friendship between nations which is actually founded on differences" (p. 1). We can assume that this is his overall point. The rest of the essay is his reflection of his experience in the U.S. which to him offers a guideline for how this could be created. However what is the source of his own amusement upon reading the passport application? Why are these questions so unusual to him?:

One of the questions on the paper was, 'Are you an anarchist?' To which a detached philosopher would naturally feel inclined to answer, 'What the devil has that to do with you? Are you an atheist?' along with some playful efforts to cross-examine the official about what constitutes an ἁρχη [Greek: archê]. Then there was the question, 'Are you in favour of subverting the government of the United States by force?' Against this I should write, 'I prefer to answer that question at the end of my tour and not the beginning.' The inquisitor, in his more than morbid curiosity, had then written down, 'Are you a polygamist?' The answer to this is, 'No such luck' or 'Not such a fool,' according to our experience of the other sex. But perhaps a better answer would be that given to W. T. Stead when he circulated the rhetorical question, 'Shall I slay my brother Boer?'—the answer that ran, 'Never interfere in family matters.' But among many things that amused me almost to the point of treating the form thus disrespectfully, the most amusing was the thought of the ruthless outlaw who should feel compelled to treat it respectfully. I like to think of the foreign desperado, seeking to slip into America with official papers under official protection, and sitting down to write with a beautiful gravity, 'I am an anarchist. I hate you all and wish to destroy you.' Or, 'I intend to subvert by force the government of the United States as soon as possible, sticking the long sheath-knife in my left trouser-pocket into Mr. Harding at the earliest opportunity.' Or again, 'Yes, I am a polygamist all right, and my forty-seven wives are accompanying me on the voyage disguised as secretaries.' There seems to be a certain simplicity of mind about these answers; and it is reassuring to know that anarchists and polygamists are so pure and good that the police have only to ask them questions and they are certain to tell no lies (pp. 4-5).

At first he is taken back by how invasive the questions seem and makes some comparisons to other authoritarian states and the Spanish Inquisition. This then sets up his main argument about the U.S.: it is founded on a creed, the meaning of the creed is best captured in The Declaration of Independence:

The American Constitution does resemble the Spanish Inquisition in this: that it is founded on a creed. America is the only nation in the world that is founded on a creed. That creed is set forth with dogmatic and even theological lucidity in the Declaration of Independence; perhaps the only piece of practical politics that is also theoretical politics and also great literature. It enunciates that all men are equal in their claim to justice, that governments exist to give them that justice, and that their authority is for that reason just. It certainly does condemn anarchism, and it does also by inference condemn atheism, since it clearly names the Creator as the ultimate authority from whom these equal rights are derived. Nobody expects a modern political system to proceed logically in the application of such dogmas, and in the matter of God and Government it is naturally God whose claim is taken more lightly. The point is that there is a creed, if not about divine, at least about human things (p. 8).

Chesterton is considered to have anticipated the idea of "civil religion" that I mentioned. This relates to what he said earlier about a form of "friendship based on differences," but why does he believe the creed in the Declaration is good for this purpose?

In its most simplest form he believes the creed is based on the ideas of equality and justice. It is only to the extent that government supports these principles that its authority can be considered legitimate. As stated clearly in the Declaration if the government does not and will not change its abuses then the population has the right to rebel and to form a new government.

Being based on the idea of equality the creed is also universal, much like the Christian religion. It is no surprise then that the U.S. is heavily influenced by Christian values. Or more than that: democratic political values are basically Christian values. Chesterton would argue that the "Christian" aspect to American democracy comes out most clearly by using the metaphor of the "melting-pot," or as he says:

Now in a much vaguer and more evolutionary fashion, there is something of the same idea at the back of the great American experiment; the experiment of a democracy of diverse races which has been compared to a melting-pot. But even that metaphor implies the pot itself is of a certain shape and a certain substance. The melting-pot must not melt. The original shape was traced on the the lines of Jeffersonian democracy; and it will remain in that shape until it becomes shapeless. America invites all men to become citizens; but it implies the dogma that there is such a thing as citizenship. Only, so far as its primary ideal is concerned, its exclusiveness is religious because it is not racial (p. 9).

The mixture of races he refers to still needs a government to provide shape to the fluid mix of culture, or as he says, the pot must not melt. He argues that the political system established by Jefferson (the 3rd president) most closely resembles this and is most appropriate for containing the melting-pot. Bourne regards the "melting pot" metaphor as a failure, Chesterton argues otherwise, but both seem to suggest that the exclusivity of Anglo-Saxon culture cannot sustain itself. At the time in which they are writing anti-miscegenation laws make it illegal to marry outside your race, miscegenation, meaning "mixed race."

Chesterton contrasts what he calls the "American experiment" with the European states. Why does he argue that in Europe they do not have a creed because they have a type? He refers to the "national type" of England which he seems to suggest is a set of beliefs, values, and attitudes that are heavily embedded in English culture and reproduced through institutions which leaves their imprint on every English subject (not citizen, they have a king). He seems to suggest that there is an absence of a similar American 'type'. This point is highly debatable. 

He is not unaware of the realities of American life "but the point is not that nothing exists in America except this idea; it is that nothing like this idea exists anywhere except in America" (p. 15). He argues that this experiment is  not internationalism (inter- a prefix meaning "between" as in between nations, similar but not identical to "transnational," trans- being a prefix meaning "beyond"). Instead, he refers to it as "nationalization of the internationalized" (-ize or -ized past tense, is a suffix that creates transitive verbs that usually mean "to create or make something" as in "creating a nation" out of people who have been "created between nations"). This process is sustained to the extent in which equality and justice guide the actions of the government.

What then undermines equality? Besides, racial and gender inequality, Chesterton writing in the 1920s is aware of the enormous income inequality in American society at this time. The period of the Gilded Age (circa 1868-1896) and the rise of the "robber barons" is over and they have consolidated their power. By the 1920s, large international corporations like General Motors and the United Fruit Co. already exist. Automobiles, especially the Model T produced by Ford have now become affordable to many middle and working class Americans. The first suburbs are created as transportation allows people to live further away from where they work. "Culture industries" like radio and film are already developing quickly which also tended to replace the participation of citizens in the public sphere with diversions and spectacles that reinforces the status quo. Despite this income inequality is at an all time high in the 1920s. Economists like Paul Krugman have spoken of the 1930s and 40s as the "great compression" meaning the relatively compressed period of time in which a middle class is created in the country. In other words, before that there was no middle class in the country at least not since before the Civil War.

"Top 10% Share of Income," Saez, 2010

In this economic  context, the "natural law" of equality tends to be obscured leading people to believe that inequality between people is the normal and natural state of being, but as Chesterton says:

In truth it is inequality that is the illusion. The extreme disproportion between men, that we seem to see in life, is a thing of changing lights and lengthening shadows. A twilight full of fancies and distortions....It is the experience of men that always returns to the equality of men; it is the average that ultimately justifies the average man. It is when  men have seen and suffered much and come at the end of their elaborate experiments, that they see men under an equal light of death and daily laughter; and none the less mysterious for being many (p. 19).

In part to compensate for the large size of early 20th corporations large government bureaucracies were created in order to manage and regulate the increasingly complex demands placed on the political system and society. One of these vital demands is regulation of the immigration system which was crucial for American economic expansion since its beginning and provides a large work force for corporations and businesses. However bureaucracies work by creating a standard set of rules that are applied to all cases, however this makes it difficult to adapt to circumstances as well as creating something broad to encompass everyone–this is the origin of the absurd questions Chesterton is asked. It is a product of bureaucratic decision making.

Bureaucracies according to the sociologist Max Weber, despite their flaws, are the highest development of order and rationality. However, at least since the Romantic era of the 19th century there has been a reaction against the suffocating and "dehumanizing" (making people less than human) tendencies of science and reason. Distrust  increased more after World War I (1914-1918) witnessed supposedly "rational" European states massacre each other by the millions in a few years, all appling "science and technology" to more efficiently kill each other with poison gas, machine guns, and tanks. These events loom larger in Chesterton's imagination, who is only writing a few years after the end of the war, and this is probably why he emphasizes the "direct experience" of things rather than more abstract scientific models of understanding (which would never allow laughing at differences or even notice them) and is able to poke fun at the "rational" bureaucracies.

Al Capone

The 1920s is known as the "Roaring 20s" or the "Jazz Age" in part because of the development of consumer mass culture adding more "excitement" to life. The 20s was also the time of Prohibition when the manufacture and sale of alcohol was illegal which created "organized crime" in the U.S. Prohibition was also directed at immigrant groups many of whom consumed alcohol regularly. It is not a coincidence that most of the major beer manufacturers were German. The influence of the time period shows, Chesterton speaks only of "men" and says other things that would not be considered politically correct today.

Chesterton also seems to assume that "nationalism" in the form of the "national type" or personality is natural. He may poke fun at the stereotypes of the English but he does not seem to think that they are unnatural, nor does he give any indication these values will change and seems to assume they are fixed and permanent, and not constructed from institutionalized social practices. In the 1920s the British Empire still existed after becoming the dominant world power in the 19th century and would last until World War II. At one point their empire reached every continent in the world and even had a slogan: "The sun never sets on the British Empire," and at one point it controlled the territories that are now India and Pakistan; Burma; Singapore; Iraq; large parts of East Africa including Kenya and the Sudan; Australia; Canada; and islands in the Caribbean like the Bahamas as well as parts of Honduras, and British Guiana in South America. In a sense, what helped Great Britain become a world power was its geographical separation from the rest of Europe; Great Britain is an island nation separated by water.

Bitram.org

Until World War II (1939-1945), this protected it from attacks from other European powers; it also encouraged the development of a strong navy which was what made Great Britain a powerful empire in its day. Trade and commerce also developed alongside its naval power and Great Britain is usually regarded as the first nation to undergo the "Industrial Revolution" beginning in the mid 1700s. Textile production was the major industry which required raw materials from different parts of the world like Egypt and India and this in turn facilitated colonization of these areas. Even more important was the production of opium by the East India Company whose ships supplied the world. During World War II, its colonial empire in Asia was mostly destroyed by the Japanese. This and the war in Europe and North Africa against Germany destabilized the entire empire. After the war, liberation movements many of which began before the war were able to throw off the foreign control of the British once and for all, in some cases this continued into the 1980s. The last major colony to gain independence was Hong Kong in 1997 when it was returned to China. After World War II, the United States became the dominant world power. At the same in which decolonization as a global process is occurring throughout the world, a massive new influx of immigration to the U.S., and to a lesser extent Europe, occurs as barriers against travel and immigration are lifted.

Chesterton points backwards to many thinkers who have come before him and points forward to many future thinkers who still echo many of the things he said in this essay. Chesterton is an early influence in developing the idea of "civil religion" to explain the relationship of citizens to the state. Chesterton could also be classified among influential American political scientists and historians, writers like Louis Hartz associated with the term "American Exceptionalism" that came about in the 1950s. The basis of this idea was that the development of the United States followed a unique path of development from Europe. Some of the basic "exceptional" characteristics that are isolated are:

1) Lack of feudal history i.e. a division of land and power between hereditary lords who rule over peasants.

2) The Western frontier that until about 1890 permitted almost continuous expansion west.

3) The geographical separation from the rest of Europe and "natural defenses" like the ocean.

4) The influence of the Puritans and emphasis on religious tolerance.

5) Relative income equality compared to Europe.

Tocqueville (1805-1859)

Although originally the term exceptional was supposed to be a neutral term only indicating the uniqueness of American development, although that is questionable. In the present day this term has been taken up conservatives and liberals who equate exceptional with meaning something like "special" or better than the rest.

1) Tocqueville emphasized equality as the chief virtue of democracy (although he saw downsides that Chesterton does not acknowledge as much, he also believed that equality creates anxiety and that's what makes American life so fast paced).
The origins of this idea however runs deep in American political culture and go as far back to the colonial times and the Puritans who saw their community as "a city on a hill," a model for the rest of the world. All of the American "Founding Fathers" were also similarly aware of this and saw themselves in this role as well. Another famous foreign visitor to the U.S. is Alexis de Tocqueville who in 1835 published volume 1 of Democracy in America (volume 2, 1840). Tocqueville basically set the pattern for how everyone who follows American politics studies it. The influence of Tocqueville on Chesterton is apparent in many areas:

2) The emphasis on the Puritans who established small democracies upon their arrival that became the foundation for all democratic institutions in this country.

3) The emphasis on values or what he refers to as "mores" (as in morality) beliefs that are accepted without question for sustaining American democracy.

Here is a passage from Democracy in America that reflects these ideas:

Thus the Americans are in an exceptional situation, and it is unlikely that any other other democratic people will be similarly placed. Their strictly Puritan origin; their exclusively commercial habits; even the country they inhabit, which seems to divert their minds from the study of science, literature, and the arts; the accessibility of Europe, which allows them to neglect these things without relapsing into barbarism–a thousand special causes, of which I have indicated only the most important, have singularly concurred to fix the mind of the American on purely practical objects. His desires, needs, education, and circumstances all seem united to draw the American's mind earthward. Only religion from time to time makes him turn a transient and distracted glance toward heaven. We should therefore give up looking at all democratic peoples through American spectacles and try at last to see them as they actually are (Tocqueville 2000, pp. 455-56).