Paradigm Shift - Part 1
Preamble
Like the Preamble to the U.S. Constitution, this section helps frame the remainder of the present paper. The current preamble establishes the set of principles through which ‘Paradigm Shift’ might be best engaged or most fruitfully approached.
First, because this is a paper and not a book, there are many facets of the following which are set forth in a somewhat compressed, rather than a fully delineated, form. Although I believe there are enough details present in the following to provide a sort of annotated map of the conceptual terrain through which the paper travels, there are many issues that could have been developed more but which have been left for another day, another paper, another discussion.
Secondly, since this paper tends to deal with basic principles and since principles tend to be inherently complex, layered and given to nuance (more on this shortly), the task of unpacking the substantive character of any given principle tends to be something of a work in progress, and, in effect, this means there is unfinished business which accompanies this paper. However, such unfinished business should not be confused with the issue of logical lacunae, anymore than one should take exception to the fact that a child is not, yet, an adult simply because further maturation is required.
The foregoing point leads to a third issue. Any time one proposes a paradigm shift, there will be those who will read such a proposal through the colors of the glasses with which they normally view experience and expect the former to conform with the latter and may become agitated when this does not happen and, as a result, tend to dismiss what is being written as so much nonsense. Yet, the whole idea of proposing a paradigm shift is to challenge the usual way of doing business.
We live in desperate times. There is considerable degradation of the human spirit, of community, and the environment which is taking place and has been occurring for quite some time.
Change is necessary. The argument is no longer whether, or not, to undergo a transition in the way we think about, and do things, but to identify the sort of change which is most likely to stop the present process of degradation and help lead in the direction of healing – on many, many levels.
Consequently, I request you to read the following material slowly, as well as with considerable reflection and equanimity. For a variety of reasons, the terrain in this paper is not always straightforward or easy to navigate, and I hope you will meditate on the themes being explored here rather than rush to judgment concerning the heuristic potential of the principles set forth.
Proposal
What if someone could offer a way to (a) substantially cut property, state, and federal taxes, while simultaneously: (b) revolutionizing the process of education so that the emphasis is on learning instead of accountability wars, political agendas, and self-serving means of generating money for those whose primary interest may be other than the welfare of learners; (c) bringing an end to the, till now, interminable wrangling over discrimination-reverse discrimination and affirmative action debates by truly leveling the playing field for all concerned; (d) enabling citizens to gain complete control over their learning; (e) shifting the burden of responsibility for identifying competence to where it belongs and, thereby, ending a form of subsidization which has done nothing but undermine the process of learning; (f) reducing the costs of both public and higher education by billions, if not trillions, of dollars; (g) re-thinking the meaning and purpose of the Constitution; (h) and, doing all of the foregoing by requiring only nominal expenditures for underwriting the transition entailed by such changes? Does this all sound like a Rube Goldberg device, a perpetual motion machine, a quixotic quest, and/or the ranting of someone without proper monitoring of medication who has been dumped back into the community from a mental facility?
Read on. You might be surprised.
Rules and Principles
One of the keys to the above possibility rests with the Constitution. Or, said, perhaps, more accurately, one of the keys lies in how one approaches the problems and challenges that are inherent in the Constitution.
The word “inherent” which appears in the previous paragraph is not used inadvisably. Almost by necessity, the Constitution is a hybrid of specific rules and general principles.
Principles are different from rules. Rules are linear and principles tend to be non-linear.
In other words, the very nature of a rule is that it should be understood, and applied, in the same way from one situation to the next. This is the essence of what is meant by something being linear.
A principle, on the other hand, has degrees of freedom within it’s structural character which provide for variations on whatever theme(s) is(are) at the heart of that principle. These degrees of freedom establish boundary conditions which cannot be transgressed without violating the principle, while at the same time giving expression to the conceptual area within which the principle is intended to hold prominence and relevance.
Being non-linear, principles have a capacity for flexibility which is not present in rules. Without transgressing its spirit, a principle is capable of responding to varying circumstances in a way that rules are unable to do without undermining the essence of the idea underlying such a rule.
One should not suppose the foregoing suggests that principles can be anything one wishes to make them. Degrees of freedom are not the same thing as license.
For example, many people speak of the Golden Rule, which, sometimes, is expressed in the following fashion: ‘Do unto others as you would have them do unto you’. First of all, referring to this maxim as a rule is a misnomer, for there is no clear, identifiable theme in this saying which can be applied under specifiable conditions in a determinate way, and, consequently, this moral precept is devoid of the very qualities which are necessary to establish it as a rule.
A general recommendation is being offered, not a hard and fast stipulation. The form of a rule frequently reflects an ‘if/then-like’ structure such that if certain conditions are met, then, certain behavior or procedures should come into effect or be pursued or applied, but this property is absent from the foregoing moral precept.
The Golden Rule is really a Golden Principle. There are degrees of freedom encompassed within this principle which permit one to go, simultaneously, in a variety of directions.
Can one say this Golden Principle is about kindness, compassion, empathy, love, forgiveness, tolerance, honesty, nobility, magnanimity, being charitable, friendship, and so on? Not necessarily, although all of these qualities are quite consistent with that principle.
If you wish others to be honest with you, then, you should be honest with them. If you wish others to forgive you, then, you should forgive them. If you wish others to be tolerant of you, then, you should be tolerant with them.
The Golden Principle neither explicitly mentions any of these possibilities, nor does it enjoin upon anyone that she or he must be kind, compassionate, loving, and so on. All it says, at least on the surface, is the following: however one wishes to be treated, then, one should not only treat others in a like manner, but the onus of responsibility for living in accordance with this principles begins with oneself and is not dependent on others treating one in a certain fashion, nor does the principle guarantee that even if one acts in a certain way in relation to others that, therefore, one’s mode of engaging people will be reciprocated.
If one looks at the life of the giver of the Golden Principle, one might say that, by implication, qualities of love, kindness, honesty, generosity, forgiveness, and so on are inherent in this principle. Such an understanding presupposes one knows what was in the mind and heart of the giver of the principle at the time the principle was issued – and such a presupposition is rooted in a theory of interpretation or a hermeneutical system about someone’s intentions, mind-set, purposes, and so on.
Moreover, even if one were to admit that qualities such as kindness, compassion, love, forgiveness, and so on, were, by implication, entailed by the Golden Principle, one is faced by, yet, another problem. What is meant by kindness, compassion, love, forgiveness, etc.?
All of these terms refer to principles not rules. There is no one way to be kind, or compassionate, loving, or forgiving, and what one person considers to be kind or loving may either not be seen as such by someone of a different understanding or has an alternative way to demonstrate kindness, compassion, love, forgiveness, and so on.
The spirit or deep-structure of this Golden Principle tends to revolve about good, moral, just, constructive, or positive behaviors. Nonetheless, someone may want to say that, for example, a person with sado-masochistic inclinations might invoke this principle to justify pathological behavior, and while such an application is consistent with the surface character of the precept, such behavior may not be consonant with the underlying spirit of that principle -- at least as envisioned by the one who initially introduced this precept.
Whatever the deep-structure of the Golden-Principle may be, its surface structure only says that if one has any hope of having someone else treat one in a certain way, then, everything begins with oneself and what one does with respect to others. Everything else is mere theory, speculation, opinion, and interpretation -- as one sometimes hears in the courts: objection, your Honor, this calls for conclusions based on testimony which has not yet been entered into evidence.
Constitutional Issues
There are some portions of the Constitution which are expressed as rules. Many of these rules are clear and straightforward, while others contain language that is ambiguous, and, therefore, in such cases one is not certain how to proceed even though one is dealing with a rule rather than a principle.
Other facets of the Constitution are in the form of principles. How one should understand such principles is both a huge problem and a challenge.
There were 39 people who signed the United States Constitution. Among this group there were no women, Native Peoples, Blacks, Asians, or poor people. The signatories were lawyers, bankers, financiers, physicians, landowners, businessmen, and high-ranking soldiers.
These 39 individuals were selected by a larger sub-set of the population encompassed by the original thirteen states. This larger group is but a sub-set of a still larger group of people who had little, or no, role in the selection process which led to these 39 people being identified as signers of the Constitution.
Signing the Constitution is not necessarily synonymous with framing the Constitution. Furthermore, there is ample evidence to indicate that Native Peoples had a substantial hand in helping to frame a variety of substantive ideas which shaped the final form of the Constitution even though none of these indigenous individuals were signatories of that document.
All of the foregoing leads to five important questions: when one speaks of the ‘Framers of the Constitution’: (1) to whom is one referring? (2) what did they mean? (3) even assuming one could identify what this involved, why should one give precedence to what they meant over those who did not participate in the selection process and/or whose views were not represented by the individuals who were selected? (4) why should people of today be bound by a document which they had no role in framing or giving consent to; and, (5) even assuming people are bound, in some way, to adhere to the Constitution, what is the precise nature of that obligation? -- is it moral, legal, political, or logical, and what is the structural character of the argument which demonstrates the undeniable truth of such a moral, legal, political, and/or logical binding authority?
Lest one forget too quickly, the Declaration of Independence, signed just 11 years, or so, prior to the Constitution, states:
“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. –
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. –
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –
“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience has shown, that mankind are more disposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Rights belong to people, not to governments. Governments are instituted to serve as guardians of such rights and fiduciary agents for creating conditions that are conducive to people being able to access and secure such rights.
So says the Declaration of Independence. So says the Constitution.
The Preamble to the Constitution stipulates:
“We the People of the United States, in Order to from a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
The Constitution establishes the framework of rules and principles within which Governments may be formed and operate. However, Governments are established to serve the people in securing rights, justice, liberty, domestic tranquility, common defense, and the general Welfare.
There is an interesting possibility associated with the fact that only six of the 39 individuals who were signers of the Constitution were also signatories of the Declaration of Independence. Four of the 56 signers of the latter document died prior to the gaining of independence, and several others retired due to ill-health.
One of the interesting dimensions of the foregoing is that the spirit and language of the Declaration of Independence has not only been, substantially, toned down when some of its principles are included in the Constitution, but provisions have been etched into the Constitution which render the spirit of the Declaration moot – namely, that people should have the right, if not duty, to abolish Governments which do not serve the unalienable rights to which all human beings are entitled has been transformed into the electoral process, and, unfortunately, the Constitution provides people few remedies in the event that many or most of the politicians turn out to be either hawkers of conceptual snake-oil, self-serving proponents of vested interests, or the political version of the world’s oldest profession.
One might say the difference in spirt and language between the two documents is the difference between revolutionary zeal and the practical business of politics. One also might say that the people who assumed control of the United States by means of the Constitution did not want something to be done unto to them which they had been willing to do unto others.
Or, one might say that since these politicians didn’t want to run certain risks of real accountability or being summarily dismissed, they instituted provisions which placed some institutional restraints on what could be done to and with them, as well as when and under which circumstances such things might be done. In short, they would treat others in a certain fashion, if those others would treat them in such a fashion – a gentlemen’s agreement if you will aimed at keeping gentlemen in control.
The individuals who crafted the Declaration of Independence said things correctly in a number of ways. For instance, “Governments long established should not be changed for light and transient causes.” Moreover, human beings “are more disposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”
Nonetheless, the people and Governments should both understand and take heed that “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” In other words, when the unalienable rights of human beings are placed at risk, then, “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
When the signers of the Declaration spoke of the right of people to “alter and abolish” destructive forms of government, they were not speaking about voting in a new King of England or having a new round of elections for the parliamentary system across the Pond. They were talking about a form of alteration and abolition which would totally disenfranchise the powers that, until then, were interfering with the rights, liberties, and pursuit of happiness of people in the colonies.
If this process of alteration and abolition could have been accomplished peacefully and through diplomatic means, then, so much the better. But, if not, then, force would be used to defend that Declaration (and for those who may be worried that the following seeks to advocate any form of forceful overthrow of government, please rest easy, for this is not the intent or purpose of this paper).
Consent of the Governed
The South (and none of what follows should be construed as either an apologia for, or criticism of, pre-Civil War Southern politics -- the discussion points in an entirely different direction) issued its own form of Declaration of Independence some four score and a few years later. The South found out that what is good for the goose, it not necessarily good for the gander.
Despite complying with the words, format, and spirit of the document of 1776 and stating the causes of their disaffection with the reigning federal government, and despite indicating that the people (or, at least, some of them) were not giving their consent to be governed, and despite indicating how the policies of the federal government were destructive of the rights of people (including women, native people, Blacks, and children -- although none of these groups or their problems were among the grievances listed by the leaders of the South ... at least not in any constructive or just sense), nonetheless, the alleged leaders of the South were told they didn’t have the right to go their own way – whether those ways be good, bad, or indifferent. May the spirit of 1776 rest in peace.
The spirit of 1776 was not about saving governments or a country. It was about saving people. When governments get in the way of how people wish to come together as a community, Union, state, or nation, then, governments, not people, should step aside for the people who have the right of way -- and, here, power is not synonymous with the issue of ‘right’.
How quickly some people forget the road less traveled which had been taken in order to be able to get to where we are in relation to issues of freedom, choice, self-determination, and democracy. Lincoln, playing King George to the upstarts of the Confederation, seemed to forget about the meaning of the Declaration of Independence, as well as the Constitution, for he, along with Jefferson Davis, decided that they had the right to force their views of the Constitution, and what it, supposedly, meant, upon others, and, as a result, hundreds of thousands of people died.
Apparently, Lincoln failed to recall that in 1854 he had said: “No man is good enough to govern another man without that other’s consent.” But, then, politicians often tend to be children of the moment believing that ‘consistency is the Hobgoblin of little minds’.
Moreover, Lincoln also seemed to be unfamiliar with the maxim that one who lives by the sword shall die by the sword. He did live by the sword (or he ordered others to do so), and, consequently, his fate was sealed in Ford theater, as was that of his assassin who also forgot the aforementioned lesson -- and, seemingly, they both forgot the Golden Principle, or, maybe, they just didn’t think that it applied to them or applied to them in the way they wished to apply it to others.
None of the foregoing should be construed as saying the causes of the South were justified, or that the Causes of the North were unjustified (or vice versa). This is not about territorial squabbles involving states’ rights versus federal rights, or about one style of living versus another, or about who was exploiting whom economically and politically, or about the right to own slaves (and the Emancipation Proclamation was not declared until September 22, 1862 -- a year, or so, after the Civil War started and would not become law until January, 1863, and quite a lot longer before that law actually began to take effect through, among avenues, the advent of the 13th Amendment in 1865). Rather, both the South and the North seemed to have forgotten that the Declaration of Independence and the Constitution were about guarding and securing rights for people, not governments, and, consequently, both the North and the South failed in their fiduciary responsibilities to their respective constituents.
If Lincoln and Jefferson Davis had not been so intent on imposing their ways of interpreting how Governments might best secure rights, liberties, defense, happiness, tranquility, and welfare for people, then, maybe, in time, the North and South might have evolved in a socially integrated manner which actually could have served the interests of everyone without hundreds of thousands of people having to die, and without the ensuing bitterness, another legacy of the Civil War, constantly poisoning the well of the Body Politic from which we all have had to drink so many scores of years down the line.
The Gettysburg Address gives expression to great literature but a rather distorted understanding of history. The “new nation which was brought forth on this Continent” was not only “conceived in liberty and dedicated to the proposition that all men are created equally”. It was a new kind of nation which, supposedly, was being brought forth ... a nation in which people were to be the primary focus, and governments were merely the means through which such ends were to be served.
Lincoln ended his address with the famous sound-bite that a nation which is a “government of the people, by the people, for the people shall not perish from the earth” -- language, by the way, which appears nowhere in either the Declaration of Independence nor the Constitution. Be this as it may, apparently, from the perspective of the North, the people of the South were not among those whom government was of, by and for ... and, consequently, perhaps this set of circumstances was one of the many possible inspirations for George Orwell’s idea in Animal Farm which stipulates that ‘all animals are equal, but some are more equal than others.’
In any event, Lincoln gave priority to the wrong idea in his famous wartime Address. America was not intended to be a nation which is a government of, by and for the people. America was supposed to be a Union of people to which government had a fiduciary responsibility ... people came first and government was meant to offer a purely procedural means for serving those people.
And, less anyone be too quick to store such issues in the attic of our collective unconscious, the Civil War did not free people of color. It merely redesigned the nature of the cage in which they were placed – indeed, the northern ghettoes and slums did for black-skinned people what the reservation did for red-skinned individuals ... namely, provided white people with a ‘workable’ solution which was paid for by the misery of those who were forced to make that solution work and quite independently of the many injustices inherent in such a ‘solution’.
All too quickly, the process of government became an end in itself, and the people about, and for, whom the Declaration of Independence and the Constitution were allegedly written became the means to help public servants serve themselves. The people were conned into swapping one King George for thousands of them, and although many in the Colonies saw the necessity of the Declaration of Independence, the logic of that necessity was not permitted to extend to the way that politicians and so-called public servants abuse the intent and purpose of the Constitution, and, instead, use it for self-serving reasons and to compel people to live in accordance with arbitrarily derived understandings of the Constitution -- with no small thanks to the role of the Supreme Court.
<.u>Judicial Tautologies and Non Sequiturs
Supreme Court justices can pontificate all they like about the nature and meaning of the Constitution, but the curtain should be drawn back by some human counterpart to Toto. There is a need to expose the fact that they have created a judicial Wizard of Oz in relation to the Constitution -- lots of thunder and bellicose meanderings, signifying little or nothing, uttered by people pretending to be something which they are not and alluding to knowledge and wisdom which they do not necessarily have.
While the members -- both present and past -- may take umbrage with the following, in truth, there are two, and only, two differences between a Justice of the Supreme Court and the average person on the street – (1) the former has power and the latter has none with respect to possessing any say about what the name of the game is in relation to Constitutional flimflam sleights of mind; (2) a Jurist has an education into the history of how other similarly empowered individuals have perpetrated the Wizard of Oz myth in order to hide the very real fact that most Jurists, whether current or past, do not have the slightest capacity to prove that any interpretation of the meaning and purpose of the Constitution which they wish to force on everyone else can be either: (a) fully reconciled with the principles of either the Declaration of Independence and/or the Constitution; or, (b) demonstrably justified as being ‘the’ interpretation which is most likely to secure and guard rights to: a more perfect union, justice, tranquility, defense, welfare, or the blessings of liberty for all of the people of this country.
To say a given legal argument has plausibility is not the same thing as saying that such an argument gives expression to a valid proof. When the rights, liberty, tranquility, welfare, security, justice, and desire for a more perfect union are at stake for millions of people, one needs something more than an “I call them as I see them” sort of mentality from jurists.
The criterion of ‘beyond a reasonable doubt’ which weighs in at most criminal trials, rather than the far less rigorous guideline of a ‘preponderance of evidence’ which holds sway in matters of civil litigation, should be the principle governing the decisions of the Supreme Court. Any time one has judicial decisions which carry by a 5-4, 6-3, or even 7-2 majority, one has prima facie indication that reasonable doubt may be present with respect to whatever issues are being deliberated upon.
When a Supreme Court justice cites a precedent in order to support his or her legal decision – and a precedent is really nothing more than an allusion to a form of logic used in some previous judicial opinion which the Jurist considers to be persuasive – the Justice frequently has done nothing but state a tautology. This is because the conclusions of the Jurist are often already contained in the premises which collectively encompass that jurist’s biases and preferences with respect to approaching the meaning and purpose of the Constitution.
The highly heralded exploration for so-called ‘legal principles’ with which Jurists occupy much of their time frequently tends to be a ‘Snark’ hunt. The fact of the matter is one has the language of the Constitution and one has the language of prominent authorities (now and over the years), but, unfortunately, the connection between, on the one hand, the foregoing two sets of language packages, and, on the other hand, reality, truth, justice, tranquility, welfare, security, liberty, and a more perfect union is, often times, something of a will-o’-the-wisp.
More often than not, the nature of this will-o’-the-wisp is in the form of a non sequitur in which conclusions do not follow from a set of premises. Alternatively, the form of the argument, euphemistically speaking, is in the form of a tautology in which the prefabricated biases of a jurist are forced, sometimes violently so, upon a set of legal facts and principles, and the only way the biases are made to fit with such facts is through the raw, brute power which stands behind such decisions and not through defensible logical argument.
Einstein, when he was engaged in his running, conceptual battles with some of the creators of quantum theory, once said that “God does not throw dice” in a reply to those who believed the universe operates as a random phenomenon. However one may feel about Einstein’s position, the fact of the matter is, Supreme Court Jurists ought not to treat the principles of democracy as if democracy should be regulated by the rules of a dice game – and all too frequently, unfortunately, such Jurists do play dice with the lives of people ... and often in a very arbitrary manner.
Judicial precedents are selected by a Jurist because they tend to mirror the hermeneutical system employed by the Jurist and not because the precedent can be defended as true independently of what the Jurist believes. Where jurists begin their deliberations is where they tend to end them because they tend to end with the same legal assumptions and philosophy with which they began, and the only difference is that the ending is couched in slightly different language in order to give the impression there has been some sort of transitional bridge of logic which has been crossed over as one goes from the premises of a legal argument to a conclusion that is said to be entailed by those premises.
On occasion, the logical movement from premise to conclusion in such arguments may be impeccable, but this often is more reflective of the nature of a tautology forced upon an issue than it is reflective of any discovery of judicial truth with respect to a given constitutional issue. What needs to be questioned, however, is both the structural character of the legal premises, as well as the underlying assumptions and interpretations, that have led to such a conclusion. In addition, one should pay close attention to the legal sleights of mind which often are woven into the text of an argument – conceptual prestidigitation which seeks to give an appearance of logical validity when none actually exists.
Being able to loosely tie a legal argument to words or ideas in the Constitution does not necessarily justify or validate the former. Moreover, and for reasons which will be developed in the following discussion, a jurist (or a President or Legislator) must not permit his or her personal philosophy of life to color a decision since, Constitutionally speaking, doing this violates both the spirit and purpose of the Preamble as well as the opening salvo of the First Amendment.
This is because every Jurist, on whatever level of review, has a philosophy of law which shapes, colors, and organizes how that Jurist approaches the interpretation of any legal document or legal circumstance -- both in terms of (a) whether law is a matter of rules and/or principles, and (b) how one should go about interpreting such rules and principles. This philosophy of law may be a function of: a theory about what the ‘Framers of the Constitution meant’, or such a judicial philosophy may involve a competing interests evaluation or cost-benefit analysis of the Constitution in conjunction with some legal matter, or a given judicial hermeneutical system may revolve about an underlying theory of social welfare or distributive justice or fairness or moral imperative. Nevertheless, whatever may be at the heart of such a judicial philosophy, it violates, for reasons to be outlined in the following discussion, the very fabric and spirit of the Constitution.
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