[Written for Lucky Pierre's America/n
, a "13-hour Election Day discussion/performance of the Constitution" at Chicago's Defibrillator Gallery, November 6th, 2012. All of the presentations from the event were later published in book form by Half Letter Press. ]
So many of the basic concepts associated with our history
were presented to us at such a young age that it can be very difficult for us
to see them afresh. For example: Who were the authors of Constitution and
Declaration of Independence? Some fellows called The “Founding Fathers,” we reflexively
utter. To the extent we give it any thought at all, most of us take this term to
indicate those men who founded, built, or established, a new nation, conceived
in liberty, and so on and so forth.
But I’m afraid we have fallen victim here to a bit of folk
etymology. Sometimes the obvious definition is not the correct one. For
instance, our word to “buttonhole” is a misrendering of “button-hold,” a little
loop that holds down a button on a garment. And in the context of pinning
someone down with your scintillating conversation, it makes much more sense
this way, despite the etymological corruption. So too in the case of these men
we call “Founders”: Washington, Jefferson, Hamilton, Franklin, Sam Adams, John
Jay, Roger Sherman, Patrick Henry—the whole lot, were actually foundlings, abandoned by their mothers
and left to die of exposure, only to be rescued and raised by wolves.
Happily, the proper recovery of this term can give us important
new insights to help understand this most essential of foundational documents,
from which so much of our national philosophy, psychology, and jurisprudence springs
forth.
***
One of the main functions of a constitution is to locate
sovereignty. We’ve deposed the Prince, the traditional residence of sovereign
power, necessitating a new home for it. In searching for this home, the first
question we may ask is whether our sovereignty is unitary
or federal. Unitary sovereignty is
centralized; federal sovereignty is distributed among states or provinces. (This
can be a little confusing to those of us who paid attention in history class,
because the original Federalists—people like Alexander Hamilton and James
Madison--actually opposed the “federalist” model, which they felt was
inadequate to the job of effective governance. The first American government,
promulgated under the Articles of Confederation, was too decentralized, they
argued, while the Anti-Federalists—in other words those who supported the
federalist model—argued that placing too much power in a centralized unitary
government would only lead to a resurgence in the kind of tyrannical oppression
the Revolution had just thrown off. Monarchy again, in all but name.)
Where, then, is our sovereignty located? Is it in “The People,” in the several states,
in the Federal government, in the foundling document itself?
***
The typical wolf litter is around 5 to 6 pups. A female wolf
has around 8 to 12 breasts. It is rare thing in nature for a wolf litter to
number higher than the total amount of its mother’s breasts. But it is also a
rare thing in nature for a group of human infant boys to simultaneously be abandoned
by their mothers and left to die of exposure, only to be rescued and suckled by
wolves until they are strong enough to fend for themselves. We owe our origin
as a nation to a very unique historical event, precipitated by Oracular
pronouncements that these infant boys would cause great upheaval (as they did).
We don’t know exactly how many She-Wolves there were on hand to suckle the
Foundling Fathers; that has been lost to history. We do know that at a certain
point, the feeding of the Foundling Fathers was supplemented by woodpeckers and
other birds. Nothing in the historical record indicates that any of the
Foundling Fathers were lost to malnutrition or starvation. But it seems fair
enough to surmise that—at least at first—the Foundlings experienced a great
deal of anxiety over the impression that there were just not enough nipples to go around—a pathology universally glossed
over in the many myths and fairy tales of Foundling heroes.
We can see the remnants of this anxiety reflected in the
debate, in the pages of the Federalist
Papers, and later at the Constitutional Convention itself, over whether or
not to enumerate a Bill of Rights. Hamilton felt that the presence of enumerated
rights would imply that any unenumerated rights would be presumed not to apply,
which would lead to Tyranny. Anti-Federalists, in turn, argued that enumerating
no rights whatsoever would guarantee Tyranny from the start. In both cases it
is important, for our present purpose, to mentally substitute for the word rights, the word nipples; and for the word tyranny,
a Deprivation of Nipples.
This is our founding document. We should know the minds of
the men who wrote it, what their concerns, preoccupations, and even obsessions
were. What we discover is that they were so fixated on whether or not there
were going to be enough nipples that they never really got around to solving
the problem of where sovereignty resided in our system of governance.
Orthodox historians will tell you that
the lack of a clear solution owes to a stalemate between the opposing
philosophical views of the Federalists and Anti-Federalists, but this view
overlooks what all the Foundling Fathers had in common—that they were foundlings! It is much more parsimonious to suggest
that they were spending so much energy on nipple anxiety that there wasn’t
enough left over to creatively solve the problem of where sovereign power lies.
So they fudged it, as in Amendment 10:
The
powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people.
In other words, some sovereignty is delegated to the States, or possibly to the
citizens of those states (to whatever extent these constitute a separate
political entity), except that more powers
may be granted back to the central government at any time by constitutional amendment,
which may be proposed by either
Congress or a majority of states. Are we clear?
At the heart of The Constitution and Bill of Rights is this
paradox: If Sovereignty resides in the People (“popular sovereignty”), then
what do we even need government for? Isn’t need of a structured legislative,
executive and judicial branch all the evidence you would require for the absence of sovereign power? A mob is not
sovereign, nor is any random collection of people in a subway car. On the other
hand, if Sovereignty resides in the Government, then what do we need Democracy
for? Why should the “will of the people” be any more germane to our welfare than
it was to the divine emperors of China or the Holy Roman Empire?
A corollary paradox: if the People who reside in the Several
States are the same People who reside in the United States—as they must be—and
Sovereignty resides in the People, then how can the states and the Federal
government be at cross purposes? After all, each is the political expression of
the same sovereignty. Why even have a debate over Federalism at all, if we are
taking any of this seriously? Furthermore, if there really is such a thing as
“The People;” if we are, as the Preamble says, a unitary “We the People” and
not a collection of many peoples or persons, then again I ask what the point of
Democracy is. One People, One Vote?
In that one first phrase in the Preamble, “We the People,”
are so many confusions sown. Being united is, you will notice, something that
we can’t stop talking about. We’re obsessed with submerging our selfhood into a
greater whole, like reverse mitosis. To be united, after all, is more than to
merely be allied, or in league, or in solidarity; it is to be fused, like two
neighboring vertebrae that have insufficient cartilage between them to continue
to function independently. Good fences make good neighbors. “United We Stand,
Divided We Fall” is the motto of the codependent family, terrified above all
that one member will stand up for herself in a healthy way, disclose the family
secrets on Wikileaks, expose the damage, call for accountability. “We must all
hang together,” said Benjamin Franklin, “or we will assuredly hang separately.”
Well, speak for yourself, Ben.
This is just the kind of confused pathology one would expect
to emerge out of the trauma of being abandoned and left to die, then being
suckled by an indeterminate number of she-wolves, and fed by woodpeckers who
never seemed to come around often enough, but it never seems to be the right
time to bring this up, even now, 233 years after the fact. There’s always some
emergency, and if it’s not being abandoned and left to die it’s being taxed
without representation by the Imperial British monarchy, or being attacked by
Indians, or Spaniards, or the Kaiser, or the bomb-throwers in Haymarket Square,
or, Somebody just blew up the USS Maine, or launched Sputnik, or embargoed our
oil, or, Violent extremists have taken over the Civil Rights movement, they
want to steal your car radio and screw your daughter, or, Somebody just tried
to detonate his underwear. There is always some kind of urgent crisis.
And so we eternally fail to confront the fact that we are
living in an incomplete, unidimensional political landscape. It all sounds good
until you get outside the bubble and start to realize how much doesn’t add up,
how much is missing. We got the One For All
part, but we left out the All For One part. We got “From each according to his
abilities” but we left out “To each according to his means.” And this makes it
inordinately difficult to see actual hardship, privation, or injustice when it
resides in an individual citizen or household. We can’t see the trees for the
forest; the persons for The People.
***
Foundlings need to survive, and to keep from going crazy they often need to make up elaborate fantasies. But once these fantasies serve
their purpose, they tend to just get in the way. At a certain point, these
fantasies become useless fictions. Ghosts.
One of the ways you can tell that the Constitution is a ghost-filled
place is that the Supreme Court is always trying to have séances with it. It’s
common practice when the Court convenes for Justice Scalia to actually drag out
a Ouija board and try to contact the Spirit of the Original Intent of the Words
of the Constitution. Scalia, like all originalists, believes that the We The
People Ghost of 1789 is real, and trods the earth in chains, like poor Jacob
Marley. (Little known fact: Before every session of the Supreme Court, Scalia
makes sure to have an undigested bit of beef, a blot of mustard, a crumb of
cheese, and a fragment of underdone potato for dinner the night before.)
As easy as it is to expose this position to the mockery it
deserves, let’s not forget that the opposite interpretation, the “Living
Constitution” of the loose constructionists, is just as spooky and
supernatural. In 1920, Oliver Wendell Holmes wrote that the words of the
Constitution
have called into life a being the
development of which could not have been foreseen completely by the most gifted
of its begetters. It was enough for them to realize or to hope that they had
created an organism… The treaty in
question does not contravene any prohibitory words to be found in the
Constitution. The only question is whether it is forbidden by some invisible radiation from the general
terms of the Tenth Amendment. (my emphasis)
We have on the one hand, the
originalists communing with the One True Spirit who knows the Letter of the Law,
and on the other hand, the loose constructionists Kabbalistically poring over
the letter of the law in hopes of raising the Spirit that resides there. We
are, in each case, spooked, haunted by our Constitution, forgetting it is an
artifact of our own imagination, forgetting it was written under extreme
duress, bordering on madness. Like those letters we would write to our friends,
fresh out of college, right after we got dumped by the love of our life, and we
were heading to Wyoming to become fire watchers. There was some good stuff in
those letters, some good, wise, courageous stuff that holds up even today. It’s
a good thing we saved them! But--we forget at our peril--we, the writers of
those letters, were bonkers. Just like those Foundling Fathers.. We should humbly
and sincerely thank them for what they have given us. But we should also
consider that the custom of revering a political philosophy created by men
raised by she-wolves and fed by woodpeckers may be due for gentle revision. We,
the Parented, the Well-Fed, the Nurtured, the Sane, the Confident, the Hopeful,
the Unhaunted.