Faint hope for a better American Constitution

kw: book reviews, nonfiction, constitution, law, amendments

I have just finished reading the Constitution of the United States, and all 27 Amendments. It didn't take long; in the Octavo volume I was reading the main text comprises just over 16 pages and the amendments 13. Less than 30 pages in length, it remains the best Constitution so far devised for any nation. Yet no matter how good it may be, the existence of Amendments shows that as times change, the process of constituting "a more perfect union" is ongoing.

Consider Amendment XII, which provides that Electors shall vote separately for President and Vice-President. Following the original prescription in Article II, when the votes of the electors were counted, the person with the most votes became President, and second place was awarded the Vice-Presidency. This practically ensured that the chief executive and his second-in-command would be bitter political foes. After 1804, the POTUS and the VEEP have at least had some chance of having similar political views. But imagine the outcome of recent elections had the amendment never been proposed or ratified: President Clinton and Vice-President George H.W. Bush, or President George W. Bush and Vice-President Al Gore!

The authors of the original Constitution kicked a few problems into the future, slavery and universal suffrage among them. They were also perhaps a bit idealistic, and didn't foresee how human nature would distort the application of constitutional law. I suspect they never dreamed an "activist court" would arrogate the right of "Judicial Review", to determine what is and what is not "constitutional". One way and another, times continue to change, though people do not, so after the Bill of Rights, a new Amendment has been adopted about every decade or so.

In a new book, Retired Justice John Paul Stevens proposes six. The book is titled Six Amendments: How and Why We Should Change the Constitution. Justice Stevens served just under 25 years, or 11% of the time that the Supreme Court has existed, and as a Circuit Court Justice for some years before that. He believes that time has outpaced a couple of the Amendments, and that distortions in the political process have resulted, necessitating new Amendments beyond the repeal or rewording of those two.

I don't presume to understand everything I have read in the book, so I'll just comment on a few items. Firstly, Gerrymandering. Hardly anyone knows what this is any more except those who practice it, which leads to rather amazing contortions of district maps whenever they are re-drawn, usually following a Census. Take a look at what the Texas legislature wrought following the 1990 Census:

This was Texas District 30 from 1991-96. It gathered a great many Democrats into it, which raised Republicans to a majority in several surrounding Districts. The current district map of several states also show troubling levels of "non-compactness" in districts, which can result in, for example, a state in which 52% of the electorate votes Democratic having Democrats holding 66% of the seats in the state legislatures.

The key words in Justice Stevens's proposed amendment are "compact" and "contiguous". The District shown is probably contiguous, but it certainly isn't compact. However, the word "compact" needs defining. I propose the following: The area comprising a compact district shall comprise 80% or more of the area of the tightest-fitting convex polygon that wholly encompasses it.

Basically, wrap a string around the shape and measure its area, then the area of the proposed district. The district shown would only fill about 30% of an encompassing polygon.

Secondly, he proposes abolishing the Death Penalty via an Amendment that adds five words to Amendment VIII so that it reads

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted. (my emphasis)

I have long favored capital punishment as the only certain means of ensuring that certain persons convicted of the most heinous crimes could never repeat their offense, nor any other. The Justice's arguments have convinced me otherwise. Most states now have laws imposing imprisonment without possibility of parole for those crimes. Though a capital offender very rarely escapes, technology is making this less and less likely. Life without parole accomplishes two things:

1. The incredible cost of the death sentence appeal process would be much reduced (though LWOP appeals might grow to fill the gap), and
2. As time passes, new evidence or new technology will lead to certain convicts being exonerated and, equally likely, certain others becoming even more clearly guilty. The latter case might also foreclose certain lengthy appeals.

Finally, I am only partly in agreement with Justice Stevens in his proposal to amend Amendment II. His proposal is to add five words, so that it reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed. (his emphasis)

I think he is right that the NRA in particular ignores the first clause of Amendment II. This is why he would add the five words, to tie the two clauses together in the way he believes the Authors understood it. However, I also understand the principle, "If it is a crime to own a gun, only criminals will have them." It's a little hard to get the American firearms toothpaste back in the tube.

It has been said, "The reason for the Second Amendment is in case the government does not keep the First Amendment." Seriously? Tell that to the Branch Davidians, or the folks at Ruby Ridge. No, the "reason" was the expectation of invasion by Britain, which happened in 1812, and the memory of the Revolutionary War which was very, very living memory to those writing the Amendment. There was no standing army, though the Constitution provides for one. There was only the Militia, and all men were expected to be ready to serve at a moment's notice.

From time to time there is a protest by NRA members against proposed legislation or regulation regarding firearms. The ragtag, motley bunch that typically shows up at such events would be laughed out of any real militia. They give a bad name to the NRA. I certainly hope that the majority of loyal, patriotic members of the NRA are as deeply ashamed of those antics as I am. Such dern fool protesters are the kind who say, "You'll have to pry my gun out of my cold, dead fingers." Americans who honor the law silently reply, "That's a challenge we'll accept when needed."

Is there any serious chance for Justice Stevens's six proposals being adopted? I think not. America is no longer the Land of the Free but the Realm of the Rich, and there is too much money to be lost by powerful entities should even one of the six be enacted. Were I king of the country, here are a few Amendments, even less likely to be enacted, that I believe would be equally salutary to the American commonweal and her political health:

• Congress shall pass no law exempting its Members from liability to obey any statute of the Federal Government or any State.
• Corporations are not Persons in any political sense. Only persons who can vote have the right to donate to political campaigns either for a candidate or in favor of any ballot issue.
• No member of the Senate or the House of Representatives shall be entitled to vote upon any measure who has not read the document in its entirety and is able to orally present a summary of its salient arguments upon demand by any constituent.
• [Line Item Veto] Any measure passed by both the Senate and the House of Representatives, presented to the President, shall be written in the form of clauses not to exceed one page in length each. Each clause is to be signed separately, and any clause not so signed is to be deemed Vetoed.

I think the good Justice might be halfway favorable to at least one or two of these. Anyone else?

Copywrongs

kw: book reviews, nonfiction, law, art, intellectual property

Just over twelve years ago, with the "Copyright Term Extension Act" (CTEA) the U.S. Congress extended copyright terms a further twenty years, to "life+70" for persons and "creator's live+95" for corporate-owned copyrights. The latter term is further "limited" by the provision of 120 years from first publication, should that term expire first. Let's see: Suppose I write a book and publish it next year. In this instance "publication" would be the day I render the completed work as a PDF and release it to be converted to an e-Book or "print on demand" item. Pick the date March 21, 2012, my father's 90th birthday; and yes, I expect he'll be alive.

I come from a long lived family. Let's be conservative and assume I live "only" 90 years, until 2037. My personal copyright will then run out in 2107. If I've assigned the rights to a corporation (after going stark, staring mad), their rights will continue until 2132, because 2012+120 = 2132 and 2037+95=2132 also. Both terms run out about the same time.

Get serious, now! Does it make any sense that anything I write will be capable of generating a revenue stream into the 2100s? Seriously? And why should I care? I've trained a son who writes well and will presumably be able to generate his own revenue stream without my posthumous help—whether by writing or in some other way. Besides, he'll be 119 in 2107, most likely having shuffled off the scene in his own right a couple decades before that, and will have grandchildren older than I am now.

The 1998 CTEA adds insult to injury. The prior law had already stipulated excessive terms. In the nannyish way of much post-1950 legislation, no longer was a work's creator required to register to obtain copyright; now it is impossible to avoid the automatic copyright, and a great deal of trouble to ensure that a work enters the public domain prior to the deaths of your grandchildren.

A voice of sanity has emerged, now that Lewis Hyde's book Common as Air: Revolution, Art, and Ownership has hit the shelves. He takes serious issue with the whole notion of "Intellectual Property." Because of that word property, otherwise reasonable people submit to having their children indoctrinated that "Theft is theft" in the schools, in anti-piracy programs (piracy is another loaded word), and there is a Boy Scout merit badge for "Copyright respect".

Author Hyde presents a long argument for the view that creative works together form a commons that is for the benefit of all, a view that is echoed in the Creative Commons movement and the Open Source software movement.

Many have a vague notion of the "Tragedy of the Commons", based on an essay by that title by Garrett Hardin. What very few know is that the "commons" as depicted in that essay is a straw man, which Hardin later acknowledged as "unmanaged commons." A commons such as a forest or grazing field (like the Boston Commons) was a managed entity, in which citizens bore responsibilities to a commons and were required to work towards its upkeep. The idea of free, unfettered exploitation of a commons was totally foreign to our forebears, and was considered barbaric. "The Tragedy of the Commons" does accurately describe most modern fisheries (which are running out of fish), but not the always-restricted, well-managed commons that worked so well for many generations, and still work well where they are in use.

Constitutional provisions and laws that provide for patents and for copyright were, prior to 1978, designed to encourage creativity and provide a limited monopoly before a work was released into the public domain. It is that public domain which provides the fodder for further creativity, for no creative person produces in a vacuum.

For example, I have written a few songs. The ones people like the most are my "family love" songs, originally written for my parents' fiftieth and fifty-fifth wedding parties. They are strongly based on concepts found in some country songs I like such as "I Come From a Long Line of Love" by Paul Overstreet. I just mixed my own experiences with a narrative structure I am familiar with. There is a bit of tune-copying there, also: a portion of one chorus starts out like the chorus of "Long Line of Love." I wonder to what extent I might have to pay a royalty if I ever perform my song for a paying audience? What price four or five notes?

Then there's a favorite rag, "Alice's Restaurant," by Arlo Guthrie. The chord pattern is used in thousands of blues rags. If that chord pattern were copyright-protected, old Arlo'd have been out of luck getting that song recorded! Luckily the rag's structure is older than dirt. So is the "La Bamba" tune, which the Beatles recorded as "Twist and Shout." In fact, just about every rhythm & blues writer has produced a La Bamba clone, and "La Bamba" itself is derived from an older Latin folk tradition. And lest you think the words make all the difference, compare some of the lyrics of "Twist & Shout" with "The Twist" by Chubby Checker.

In the Commons tradition of pre-Enclosure England, there was a yearly bounds-walking exercise by interested townsfolk. They would break down any fence or enclosure that encroached on the commons, and warn other perpetrators who had committed infractions against its proper management. We are seeing a similar exercise arise today, though it is being called "piracy" by the powers-that-be in the entertainment industry. File-sharing is the primary way most people I know get their music. Not being one to listen to music, I don't even have an iPod, but if I did, it'd be full of Western Swing tunes that are easily obtained via one of many free Torrent services.

For those who don't want to download stuff, there is always the public library. The local one is well stocked with CD's of popular bands. It is rather easy to bring a laptop to the library and rip tunes from a handful of CD's in an afternoon, and you don't even need to check any out. Let me ask you, how does this differ from reading the library's copy of a book? Hyde makes an excellent point about the First Amendment: that it primarily protects, not just the right to free speech, but the right to free listening.

There is an amusing dichotomy at the corporation for which I work. The company employs strong safeguards to protect the electronic copies of technical reports, for after all they are the crown jewels upon which innovations and products are built. Those reports are based on laboratory notebook records. Until recently, the notebooks were all paper books issued by company libraries at all research sites, and microfilmed recently. Mostly, this is still happening. But electronic notebooks are increasingly used, which are electronically published. There is a lot of worry about the contents of around half a million notebooks which exist only on microfilm, because they contain the records of millions of experiments. It costs money to perform an experiment. If you don't know what was done in the past, you are likely to repeat work. So there is a push to get the old notebooks into electronic form also. All this material has to be indexed and cross-referenced so it can be found.

Here's the rub. The easier it is to find, the easier it is to steal. Every research company, mine included, has had incidents of theft of such records. So the safeguards are beefed up every few years as new ways are found to circumvent them. This kind of "arms race" has been going on since before the invention of the test tube. And do you know what? It is OK! The rapid expansion of knowledge and technology that results is a benefit to all, even if it sometimes makes a dent in this or that company's bottom line. A rising fleet is good for all the ships.

There is plenty of evidence that sharing can be more lucrative than secrecy. That is why there are so many joint ventures. Genuine creators don't have to look over their shoulders. They always have something new up their sleeves, so if one particular song, or book, or pharmaceutical, or plastic, or movie, or anything else starts to lose market share, there is a pipeline of new stuff coming along to replace it.

Stuff gets old. Newer stuff can be better. Edison was issued about a thousand patents. Guess how many Edison inventions are still in use? Exactly one, the light bulb. And in the U.S., the incandescent light bulb has just been legislated almost out of existence. 100-watt bulbs are now illegal to manufacture. In two to four years, the 75- and 60- and 40-watt bulbs will follow. Only little "chandelier flame" bulbs will be allowed. By then, LED bulbs will begin to replace the CFL's that we're using today to replace "light bulbs".

Hyde hopes, but doesn't much expect, for a new "breaking the enclosures" movement to arise and restore some sanity to the Intellectual Property arena, particularly where the big money is, in entertainment. Copyright terms are much too long. In the consumer products arena, patents are still limited to twenty years. Very few products have a marketing cycle even ten years long before something better comes along. Some songs may last generations, even the occasional film, but will people still be watching episodes of Twilight in 120 years?

No room for any gods in the legal dictionary

kw: book reviews, nonfiction, religion, law, sacred practices, tombstones, memorials

I picked up The Impossibility of Religious Freedom by Winnifred Fallers Sullivan, thinking it might be a discourse on conflicting religious traditions, or on the increasing persecution many religions are experiencing around the world. I found instead a narrowly-focused history of the civic and legal conflict between the city of Boca Raton, FL, and a number of citizens who had erected various memorials on their relatives' graves in the city cemetery. The memorials followed various traditions, Catholic, Protestant, and Jewish among them.

Though the practice was variously tolerated, overlooked, and even abetted at times, over decades, the cemetery rules clearly stated that memorials were to be confined to brass plates set into the ground, that could be mowed over. The city officials eventually decided to enforce the regulations, and ordered that the "nonconforming" displays be removed; they set a deadline, announcing that the displays would be removed by the city thereafter.

The ACLU and about a dozen of the citizens brought suit. It is nearly the only case in which the ACLU has brought a suit that is favorable to religious practice. Their nickname around here is "Anti-Christian Legal Union". Dr. Sullivan was an expert witness in the case, hired by the plaintiff's attorneys. The plaintiffs lost the initial case in 1999, it has been appealed, and to date, the matter is not resolved.

I confess I skimmed much of the material. Ms Sullivan has both JD and PhD, is an academic, and writes too drily for my taste, though her style is among the more facile...which means most academics write abysmally. Sad, but true.

Short version: the five experts on religion, three for the plaintiffs and two for the defendants, have impressive credentials and experience. The conflict in the courtroom resolved to a decision based on "organized" versus "personal" or "folk" religion. It was made clear that "personal" religion is really where the rubber hits the road. Our faith is what we do in our daily life, not the local edifice we happen to visit weekly.

Yet, the author made it clear that the judge disregarded all the experts' testimony and based his decision on his own understanding of religion. That made the appeal a slam-dunk decision. The author's thesis then is that this kind of treatment is typical: only "organized" religion has legal standing.

However, in these days of "sensitivity" and "respect", it is possible to attain at least tolerance, even legal tolerance, of one's personal religious practice. In the 1980s, I was one of several that set up a nonprofit corporation on behalf of our church. We then went through the application process for nonprofit—section 503(c)(3)—status, formally recognized by the IRS.

The crux of the matter was a statement in our bylaws (you gotta have 'em to file), that the church would meet in a location or locations as decided by the officers. I spent an hour on the phone with an IRS official who wanted us to state the church's address in the bylaws. I said I couldn't do that, that the church was the people, and wherever they happened to gather, that was a meeting of the church. At one point, I said, "This is a matter of our religious freedom. It is very important to us. To us, the real church cannot have an address." At that point, the gentleman thanked me, hung up, and shortly our registration was approved.

Just an aside to those who are bent out of shape, on either side, about the "prayer in school" issue. While we practice vocal, group prayer, we also learn to "pray at all times," which is solitary, silent or nearly so, and carried out in the midst of our daily activities. We train our children so.

Prayer has nothing to do with whether you stand, sit, kneel, walk, lie down, or are swimming. It has to do with Someone with whom you are communicating all the time. Groups of our young people do sometimes gather together, usually just before school starts, for a quick prayer group session. They are rather quiet. (And if several of us work in one location, we pray together on occasion) But, whenever the issue arises, our attitude (stated by parents; we don't burden kids with adult burdens) is, "There is exactly one way to stop me or my child from praying at any time, in any place. Kill us. If you are unwilling to go to such lengths, you'd do best to ignore us."

Some other time I'll get around to how one can "pray at every time in spirit."