In taking on a major malfunction, breaking it into smaller pieces is helpful, but whether in big parts or the little ones it is hopeless when it comes to constitutional jargon. American’s observing the jurist legislators of our nation have nothing better to do than tie knots in their tongues. There are reasons to do homework about how it may be possible to replace all talk, no action legislators with scientists, but step one is to find the source of idiocy.
The Critical Legal Studies movement (Wiki) in the 80s examined liberal legalism of the late 1950s through the 1970s. Since then, observers of the conservative and progressive discourse are rebuilding the debate about our future under the law with discord and bad faith arguments. Common ground will not be found in this noisy place and that is my problem. It is yours too.
In the conservative constitutionalist’s view, normative or private social authority are centers of localized jurisdiction, designed to guide the actions of the republic and protect against legislative or judicial encroachment. The progressive constitutionalists often critique these private sources of power (normative social organizations) as an unacceptable hierarchy to be challenged.
The pathway to social innovations among conservative and progressive views has a constitutional basis. The only common ground here is that both claim the right to system change. It is the pathway upon which they walk that requires clearing. I offer the following example.
Before proceeding with a system change effort, I recommend investing time in a better understanding of two compartments in the sleeves of the same robe known as the Fourteenth Amendment. There are others, but you can see by the top ten list (below) from TIME magazine the Fourteenth plays a significant role, directly and indirectly.
On June 21, 1788, the Constitution became the official framework of the government of the United States of America, but it was not until eighty years and nineteen days later when The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868. as one of the Reconstruction Amendments ending slavery. The Thirteenth Amendment to the United States Constitution “abolished slavery and involuntary servitude, except as punishment for a crime and on this point I highly recommend Ava DuVernay’s 13th (here). The focus here, is the subtle malfunctions of the Fourtheenth that requires equal attention.
The law tucked into the conservative sleeve holds the fire of civil war and the struggle against rulers, something the progressive sleeve shares and knows well. The fabric is the same, but as ideas attempt to move from one sleeve to another, the meaning changes. The only insight I have other than the overabundance of male intellectual hubris of legislators is as follows.
The law demands obedience with rules that either mediate or deactivate. The writers and readers of the U.S. Constitution then speak to normative claims differently. The table below illustrates how oppression as the law was a mediated function between an owner, and the people owned from 1619 to 1865. The conservative mediation of authority accepts and activates a wide range of institutions as separate from the citizen as a subject of law because the State defines a person’s legal status, relation to the state, and other persons.
The progressive view of authority reframes the rule of law in search of new conditions under which a claim to sources of power can become realizable and capable of deactivating practices such as the specific evidence of oppression. That would be the list you see after 1865 as statements of that evidence.
Critical thinking about big problems builds on billions of local event moments, now accelerated with digital communications. Framed in the 402-year sweep of history, the list of post-1865 malfunctions that demand deactivation is a demand for equality with equity. The digital divide is a fact exposing and expanding the educational challenges of resolving these two issues, but the polarizing elements of the Civil War may be a strong contributor to the binary politics of today, it is now a digital freedom-ride world.
These actions of the last century and a half are mixtures of wins and losses. In a four-century framework, these events are brief, even seem temporary, impermanent, cursory, in passing, and can strike you down like lightning or lift one up like the 1965 Voting Rights Bill and Fair Housing in 1968, as one of thousand other ways the arc of history bends toward justice.
The conservative’s and the progressives’ understanding of the Constitution support outcomes for empirical reasons but different ends. Down to a couple of basics, the constitutional outlook is as follows:
|Experience||Interpeted||For Liberty||For Equality|
|Defined by |
|Progressive||Open to the|
necessity of choice
|Defined by |
|Affirm eradication |
The critical thinking outline I use (here), comes down to two items No. 6 – prediction and No. 7 – transformation. Both can be fully imagined, but those are actual steps onto a pathway that seeks to create change. Not the imagination of change, the slap in the face, tearing of the skin variety.
The movie is well-known, as a book The Wonderful Wizard of Oz (published in 1900) was very different. These two works neatly reflect half of the 20th century and the trends to its conclusion. By 1939 the original highly violent animal slaughtering tale in the Oz became a dreamy musical. The film and more importantly, the re-write became more widely known than the book could ever accomplish.
No longer a satirical look at the gold standard, the focus became a hop and skip down a yellow brick road where you and the charming Dorthy (Judy Garland) go on an optimistic quest to get a strawman a brain, a lion some courage, and a tinman a heart. To serve these purposes well it is necessary to have relationships with people in a community with a common goal because there is no place like home.
The transitional sentiment from the book to the film follows the Gilded Age through 1900 (solidifying segregation), the First World War to 1918 (initializing the war/industrial complex), and The Great Depression to 1939. In this last phase of the century that the film seemed to propel foward was the power of the Federal Government. It accepts a securitization role by taking responsibility for contractual debts such as residential mortgages and other investment obligations like a national highway system in the post war era of the 1950s. All of this “interstate” power was built on its proven ability to establish the people’s trust to secure and support human dignity from the Great Depression through the Civil Rights Movement. The national response to these two forces for change should have propelled the American people forward for another century had it not built racism into the Constitution.
Despite the enormous capacity for social resilience and economic growth established since that time, 21st-century America is losing itself in Constitutional jargon in preference to straight talk on social justice. The cost will be the lost confidence and trust of ordinary people and investors throughout the world. Do not get trapped in this dialogue of the jurists. It is now time to turn to the scientists for the truth. The world recognizes us better than we do ourselves. To close and as to why, I offer one example:
“World Bank’s 2019 Migration and Development Brief, $529 billion in remittances were sent to low- and middle-income countries in 2018—an increase of 9.6% over the previous record high of $483 billion in 2017. This figure is significantly larger than the $344 billion of foreign direct investment in these countries, excluding China, in 2018. If we include high-income countries as well, the total amount of remittances jumps to $689 billion, up from $633 billion in 2017.” (Source)