Independents

The Jefferson-Madison Debates: The Problem with the Supreme Court Today

November 13th, 2018 // 7:31 am @ Oliver DeMille

I.

The Supreme Court is the biggest potential danger to the United States.

Too strong? Not really. Thomas Jefferson warned a long time ago that the Supreme Court would eventually be the downfall of the Constitution and even the United States.[i] His concern was simple: there are no effective checks or balances on the Court. When push comes to shove, the Court can rule whatever it wants by majority decision. And that’s that.

It is also why the demonstrations were so intense during the 2018 Kavanaugh hearings and confirmation vote, and the election a month later. It is the main reason such undue pressure—some natural, some funded by Leftist billionaires—was brought to bear against certain Senators during the hearings and in Senate and House races during the election. And why savvy observers on both Left and Right, as well as many Independents, feel uneasy even after the hearings and elections are over. An indelible image remains for anyone who closely watched the protests: Americans standing and clawing helplessly on the giant doors of the Supreme Court building, apparently wailing in forlorn agony.

Why the anguish? Why the writhing and screaming, the threats and promises of more theatrics to come? Why the secretive tactics of politicians and the widening divisions of American politics? It’s more than just anti-Trumpism, or extreme party squabbling. Something else, something deeper, is at play here. But what is it, exactly? What’s all the fuss about?

Answer: Jefferson had it right. The truth is that the Supreme Court has too much power. It can rule whatever it wants. And whatever it decrees isn’t even called a “decree”, or “edict”, but rather a “finding” or “judgment”. It all sounds objective, clinical, innocuous, but the power is real. Indeed, the modern Court “finds” what the Constitution means, and announces such “findings” to the rest of us, to the peons. This isn’t what the Framers had in mind. Make no mistake, the “peons” are everyone that’s not a majority Justice on the Court. Five people can rule us now, on pretty much anything.

This brought the Left to its extreme tactics in 2018. A fifth Right-leaning vote would lead to the biggest nightmares people on the Left can imagine: a government that outlaws abortion, rules unfavorably on homosexuality, or implements laws that raise one race or religion above others or certain races or religions below the rest. Such laws might be extreme or mild, but even the so-called “mild” ones seriously threaten the deepest values of the Left. Imagine a “mild” law that requires your [race, or religion, or whatever it is] to obey a more harsh set of laws than any other race or religion, or face annual penalties. Suddenly it’s not so mild.

For those on the Right, the danger is just as real. If the Court can do any of the things just listed above, a five-decision majority by some future Court, or the current Court with just one Justice switching sides on a specific decision, can also create the nightmares of the Right: drastically regulating religion and the way people worship, or outlawing religious practice, entirely outlawing guns except for those carried by government agents, taxing at extreme rates or government fixing of prices in the economy, ending state sovereignty and making all states the same (becoming mere enforcement hubs of the national government), or outlawing all education except mandatory public schools.

If a future Court rules 5-4 on any of these things (say massive regulation of religion and forcing people to worship a certain way outlined by Washington D.C., or outlawing all firearms except those carried by police and secret government agents), members of the Right may well find themselves clawing and wailing at the front doors of the Court. Or, not unlikely for some people, refusing to obey, and facing the violent consequences. If Hillary Clinton had been elected in 2016 and appointed a second Justice to the Court in 2018, how would the Right have responded? And if Trump gets to appoint a third Justice, or even a fourth, the backlash will likely be even more extreme.

There are at least two major issues at play in all this:

• First, we’ve had partisan majorities on the Court before—so why is this such a big problem right now?
• Second, what can be done about this situation? How can we fix the problem, before it becomes a violent battle within our nation, a new Civil War of some kind?

II.

The answer to the first question makes the second even more relevant, because the types of issues currently at the center of the division are matched in U.S. history only by the rift between North and South prior to the Civil War. The Court mirrored the nation in this divide, and bad Court decisions just before the War fueled the problem. However, no single Court decision caused the Civil War, largely because the national divide was sectional—meaning the large majority of people in Southern states, and the large majority in Northern states, respectively, were willing to allow the different states to do their own thing, different from any universal national decree, and the Court went along with this. Thus the battles were mostly fought outside the Court.

Today’s scenario is different. The national division is now found in every state, and while some states lean Left or Right, there is no clear Sectionalism, no geographical region in the nation where almost everyone loves the values of the Left and hates the values of the Right, or vice versa. There are, of course, Blue coastal states that typically vote Left, and a Red state interior that votes largely Right, but in each state there is also a significant rural-versus-urban division in values, as well as a large number of Independent voters who side some Left and some Right (at differing levels and without formal organization). Likewise, there are significant generational divisions in terms of Left-versus-Right values, which manifests in most organizations, and even families.

Given this new arrangement, a Civil War in today’s world would literally pit neighbor against neighbor, and in many cases sibling against sibling and lots of Boomer/Gen X parents against a number of Millennial/Gen Z offspring and youth. This divide extends across the nation, to every state and almost every neighborhood and home. This is the exact kind of potential conflict the Supreme Court was created to prevent. Unfortunately, by forcing itself into numerous unconstitutional arenas that it was supposed to leave to other branches and levels of government, the Court has sacrificed much of its original moral authority. It has far too much power in some things, and not nearly enough moral power now to address some of the main reasons for which it was established. This is both ironic and dangerous.

Some observers argue that the real danger now, as opposed to just before the Civil War, is that the Court has become hyper-partisan. This is a problem, but it isn’t the problem. More on that later.

First, it’s worth noting that hyper-partisan divides on the Court are inevitable. The Framers didn’t want political parties, but they knew there would be strong political divisions at times—and that on occasion this would extend to the Court. When such divisions are based around core values, the Framers wanted the Constitution or the voters to have the final say–not five individuals in black robes. The Court was designed to address the two sides of any specific case, as needed, but not to create a general legislative framework or law for everyone.

Moreover, the Court isn’t equipped to deal with the realities of hyper-partisanship. It is structured in a particular format that doesn’t translate to the nuanced needs of fixing the nation’s political and values divide.

Specifically, the Court hears cases and decides a winner and loser in each case. This doesn’t lend itself to long-term solutions of problems that require deftness, flexibility, and widespread individualization. That’s why the Framers put all legislative powers in the hands of Congress, state legislatures, and local representative and even fully democratic bodies (e.g. Townships and Town Meetings, at the neighborhood level of local governance). Legislation is needed to address multiple, leveled, complex negotiations and outcomes. No decision of the Court can do this, not even with well-articulated dicta (since the words of the majority opinion are open to wide interpretation, without the benefit of floor debate, hearings, rebuttals, direct amendments, etc.).

For example, consider one of the largest value divides in current American politics. The Left often hurls claims of “racism” or “sexism” when fighting battles with the Right; the Right tends more to claims of “Socialist” when battling the Left (it once appealed to “Atheist” as well, but this has lost much of its sting in recent decades). If such a battle were taken directly to the Court (it’s hard to imagine a case so perfectly aligned), the decision of the Justices, whatever the arguments of the two sides, would choose a winner and select a loser.

The winner would immediately tend to promote its entire ideology as vindicated by the Court; the loser in this case would try to narrow the scope of what the Court actually decided, but the moral loss would be real, and no doubt a lot of the nation would refuse to accept the decision. And for good reason: If the Court declared you a “racist”, a “sexist”, or a “socialist”, would you just shrug and agree? Most people wouldn’t, regardless of how much they revere the Court in other matters. Their mind and gut (or pride) would tell them that the Court got it wrong in this instance, because you know better than the Court whether or not you’re actually a racist, sexist, or socialist. If you’re not, the Court “finding” is just plain wrong, no matter how many Justices decide against you. On the issue of core values, the Court has little appeal to truth, regardless of how much authority it claims.

The reality of such a divide is much better worked out in the legislative branch. Specifically, the claims of some on the Left that many on the Right are racist and sexist turn out to be mostly false, but partially true. There are a some racists on the Right. But, to be clear and accurate, most people on the Right are not racists. Same with sexist. Also, to be clear, there are some on the Left who are racists as well, along with some sexists.

On the other side of the argument, claims from the Right that most Leftists are socialists turn out to be largely false, but partially true. There are some socialists on the American Left. In the younger generation, there are more who claim to be socialists than in older generations. And there are also a few socialists who claim to be on the Right. Moreover, there are a lot of people who define the word “racist” differently than others, and the same applies to “sexist” and “socialist”, further muddying the waters. Indeed, there are nuances to all such claims.

A Court (no matter how erudite) that is required to decide cases by majority, giving a win to one party in the case and a loss to the other, can’t effectively deal with this level of ambiguity and legislate for the whole nation. The Court is well equipped to deal with one thing: an individual case, with its own set of facts, applicable laws, details, nuances, unique circumstances, etc. This is why the Framers gave us the kind of independent, supreme, and empowered court that they did—to deal with each case as needed. Not to legislate for the entire nation, all in the name of precedent.

The problem with precedent is obvious: no two cases are the same. Trying to apply the “findings” in one case to almost any other case changes, by definition, the actual “findings” to a more general legislation, and the Court has no constitutional authority to legislate. Articles I, II, and III are clear about this. Except, of course, for the legislative authority the Court has unilaterally usurped over the years. The use of any such authority by the Court is, of course, unconstitutional, illegal, and wrong. We’re using here the definition of “unconstitutional” used by the American Founding generation, meaning in conflict with the words of the actual Constitution and Amendments. The Court has also usurped this word, defining “unconstitutional” as whatever the Court says is unconstitutional. How convenient for them. And, let’s be honest, this is itself unconstitutional according to the original meaning of this word as used and intended by the Framers.

III.

Hyper-partisanship is a problem because it catalyzes extreme views and even extreme actions. When the Court becomes part of the frenzy, it loses its power to peacefully resolve the greatest problem of all free nations—irreconcilable divisions about the use of force, law, and state-imposed violence against citizens (including large groups of citizens, be they protestors, political parties, etc.). The purpose of the Court was to reconcile just such divisions without requiring bloodshed. This is why the Framers gave the Court final judicial power in any given case arising in the nation.

The problem with such levels of power is that…well…the holders of such power might use it poorly. Corruptly. Ignorantly. Or, unwisely. To see the potential danger of this possibility, imagine the mobs and violence that would ensue in certain parts of the United States if the Court reversed Roe v. Wade and made all abortions illegal. Or, alternatively, ruled that ownership of any gun is illegal, or that people of one skin color (yours, for example) don’t have any more rights under the Bill of Rights, or that all members of one religion (yours, again) may no longer legally practice their faith. Wherever you stand politically, one or more of these probably sounds drastic to you—worth fighting against, possibly even worth dying for.

The problem is that the Court, as currently understood by most Americans (including some of the Justices), has the authority to do any of these, or all, along with a number other things equally drastic. So when the Court seems to be swinging one way or the other, a lot of people are going to feel deeply threatened. Their most cherished values seem to be in peril. In some cases, they truly are in peril.

Let’s get personal. If the Court decided some certain things, you would likely be willing to fight to the death to stop them. One of those things might be on the list above, or it may not. But something could probably cause you to stand up and fight, and whatever that thing is, the Court has the power to decide it. Its power and reach is basically unfettered, at least in theory. It likely won’t do the kinds of things that make large masses rise up in blatant or even violent refusal. But it has that power. That’s the rub. The protestors clawing at the door of the Court could have been you, given the right situation. And such a situation may still come. For many on the Left, it is a daily worry that such a thing might happen. For many on the Right, the same worry weighed them down for 8 years under Obama (after all: with a Left-leaning President in the White House, one who openly ridiculed religion and gun ownership, among other things, and a Centrist carrying the swing vote on the Court, they reasoned that almost any decision was possible—and they would be even more worried with a significant Leftist majority on the Court).

Ultimately, few Americans should feel safe in their deepest values when the Court can do as it pleases. Jefferson warned of this when he first read the Constitution. And hyper-partisan efforts typically exacerbate the problem. For example, when the Democratic majority in the Senate strategized to get rid of the power of the filibuster and push things through with just a simple majority vote, it mocked Republicans who felt a major loss of their own minority power. Some warned that the time would come when Democrats would feel the other side of this same decision. It happened less than a decade later, when voters put Republican majorities in both House and Senate. At this point, Democrats mourned the loss of filibuster power—but it was too late.

Today many Republicans feel a sense of relief that the Court leans Right, at last. But things have a way of swinging to the other side of the pendulum—at some point the Court may lean strongly Left. As long as the Court has too much power, half the nation is going to live under threat of serious peril.

Something needs to give.

IV.

What can be done to fix the problem? First, a number of proposals have already been made. Jefferson put it succinctly:

“At the establishment of our constitutions [both federal and state], the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous…that their decisions, seeming to concern individual suitors [cases] only, pass silent and unheeded by the public at large; that these decisions nevertheless became the law by precedent, sapping by little and little the foundations of the Constitution, and working its change by construction, before anyone has perceived that that indivisible and helpless worm has been busily employed in consuming its substance.”[ii]

Strong words.  The Framers wanted to reject the old-world practices of judicial precedent and political parties, and they tried to write the Constitution in a way that would elect officials without political parties and create a Supreme Court and judiciary that decided individual cases but created no precedent from any case or dicta. A clear reading of the Constitution, particularly Article III, shows this—as do the Federalist Papers and writings of the leading Framers and other Founding Fathers. Jefferson continues:

“There is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore un-alarming, instrumentality of the Supreme Court.”[iii]

No bigger danger to the United States? This is serious business. Today, as mentioned, the same threat is even bigger. Jefferson wrote that “One single object” would significantly improve the Constitution, specifically, “that of restraining judges from usurping legislation. And with no body of men is this restraint more wanting than with the judges of what is commonly called our general government [the federal government], but what I call our foreign department.”[iv]

Note that Jefferson calls the federal government “our foreign department”, since if the Constitution is followed the only powers of Congress, the Executive Branch, and the Supreme Court are to protect the nation from outside attack and keep the peace between the states. Everything else is left to the states, or the people in a more local setting. And, of all three branches of the federal government, Jefferson was most worried about the usurpation of power by the federal courts.

But what exactly were the federal courts, including the Supreme Court, doing that was so bad? Why was Jefferson so concerned? He says that the Judges and Justices “are practicing on the Constitution by inferences, analogies, and sophisms as they would ordinary law.”[v] He declared that the Justices didn’t seem to realize that the Constitution was written to them as much as to other branches of government.

To repeat: the Constitution was written to limit the Court, too, and the Framers and those who ratified the Constitution believed that the Court and Justices would be required to obey it. Justices have the authority to use inference, analogies and other arguments to apply the laws of the land, made by Congress, or by state legislatures, but they have no authority whatsoever to do this to the Constitution. The Constitution itself forbids it. The Court is supposed to apply the Constitution to any case it hears, and it can review and apply ordinary laws—those made by Congress, following the Constitution—to a case as well, but neither the Justices nor federal judges get to restructure or redefine the Constitution by informing the rest of us what the document means. The Court, according to the Framers, is just as bound by the Constitution as the President, the House, or the Senate. It can’t just announce that the Constitution means whatever a majority of the Court wants it to mean—or “finds” it to mean. At least, that’s what the document itself allows.

Jefferson warned that ignoring this part of the Constitution would lead in the wrong direction: “Our government is now taking so steady a course as to show by what road it will pass to destruction, to wit, by consolidation first, and then corruption, its necessary consequence. The engine of consolidation will be the federal judiciary; the other two branches the corrupting and corrupted instruments.”[vi]

What exactly does he mean by “consolidation”? Answer: the Court at the time was announcing that it had the Constitutional authority to determine the meaning of the Constitution—each word and phrase (the Court would later claim that their power applies even to ideas not actually mentioned in the document). Jefferson questioned where in the Constitution this authority was given? What Article, what section, what phrase. The response, from members of the Court, was that this was the natural course of the Court’s power. In other words, no such power exists in the Constitution itself, but the Court could do it anyway because that’s just what Courts do.

Jefferson disagreed. He maintained that, while the Courts in Britain had at times wielded such power, the U.S. Constitution specifically and purposely changed this type of jurisprudence. The Framers (and those who ratified the Constitution in all 13 colonies) didn’t want the judicial branch in the United States to follow the British model, to consider itself above the law, able to “find” and “decide” what the Constitution means. Again, the federal judiciary was designed by the American Framers to apply the Constitution, to hold the Executive and Legislative branches, and the states, to the bounds of the Constitution in any given case.

But neither the Framers nor the words of the Constitution give the Court any authority to define or determine its own power, and certainly not the authority to consider itself above the Constitution or re-frame the meaning of words and phrases in the Constitution by judicial review or decision. No such power exists in the Constitution, and it was written this way on purpose. Nevertheless, the early Court adopted such powers, usurping them, and the Executive and Legislative branches submitted to such power, not based on the words of the Constitution (indeed the words are the opposite) but based on the fact that so many American lawyers were steeped in the customs and habits of English law.

As mentioned above, Jefferson saw this as the biggest threat to the American system and Constitution. Following the English approach, instead of the Constitution, was a major mistake. And it was unconstitutional.

Why did anyone allow it to happen? The Court did it to expand its power. This is easy to understand—government entities almost always try to expand their power. But what about the other two branches, who were designed to check and balance each other and the Court?

Answer: By allowing the Court to do this, the Executive and Legislative branches in Washington received a huge benefit—the “consolidation” (Jefferson’s word) of power away from the states and local governments and into the House, Senate, White House, and federal bureaucracies. In essence, as Jefferson warned beforehand and later pointed out when it actually happened, the Congress and Executive Branch looked the other way and allowed the Court to unilaterally crown itself the final power in the nation—to say what the Constitution means and doesn’t mean, by a majority decision of just 5 people, with no check or balance that can contradict it. As a reward, the Congress and Executive Branch get to rule the nation in all things, as long as the Court agrees, instead of being limited by the specific words of the United States Constitution.

This is our problem today. Jefferson’s warning has come to pass, “by little and little”,[vii] just as he said it would. He even forecast how the Court would do this, by calling foul what it was already doing in his time: “…it has proved that the power of declaring what the law is ad libitum [optional, up to the decision of the judge], by sapping and mining, slyly, and without alarm, the foundations of the Constitution, can do what open force cannot dare to attempt.”[viii] According to the Constitution and its Framers, its words and meanings were not optional: the government, including the Court, had to follow it. But the Court decreed differently. Jefferson, and anyone who simply reads the Constitution for its original meaning, disagrees.

“Consolidation” also meant that once the Court centered power away from the states and locales and vested most of it in Washington D.C. (the opposite of the Framers’ intent), the Court would continue “consolidating” power from the Executive and Legislative branches to the Court. Again, Jefferson’s own words:

“We already see the power [of the Court]…advancing with a noiseless and steady pace to the great object of consolidation. The foundations are already deeply laid by their decisions for the annihilation of constitutional state rights, and the removal of every check, every counterpoise, to the engulfing power of which themselves are to make a sovereign part.”[ix]

In short, the Court decreed itself the sovereign, the final power and highest authority in the United States—above the Legislative, above the Executive, above the States, even above the Constitution itself. If the Court gets to decide what the Constitution means and doesn’t mean, and everyone else must obey the Constitution, the Court is the crown. In this case, in fact, the Court is the only power in the nation that doesn’t have to obey the Constitution, since it can simply change what the Constitution means whenever five Justices agree.

Jefferson’s response? He warned, in strong language:

“Before the canker become inveterate, before its venom has reached so much of the body politic as to get beyond control, remedy should be applied.”[x]

And what is the “canker”, the “venom”? The nation ruled by the Court.[xi]

Clearly, Jefferson had a lot to say on the topic. After all the blood and sacrifice given by his generation, he wanted the Constitution to last, and he predicted that the flawed, and unconstitutional, use of power by the Court would eventually spell our nation’s decline. If five people can rule, some group of five eventually will exercise this power in the wrong ways—either by malice or error, as Jefferson put it.[xii] It may take a long time for this to happen, but when it does, the nation’s freedoms will be forfeit. Indeed, once such power is used, it will be used again and again.

We are on the cusp of such usage. And given the growth of partisan rancor over the decades, we now seem closer than ever before. Such a watershed event may occur while five Justices lean Right, as they do now, or at a later date when 5 lean Left. But if [when] it happens, the United States will be no longer a limited federal democratic republic; or free.

The fact that the wrong side of this debate is now being taught to nearly all law students in nearly all law schools is a serious problem. Most law students, and almost everyone else close to the legal profession, now fully adopt and promulgate the British system of jurisprudence, as applied to the United States–the very thing that Jefferson was so worried about–instead of the actual meaning of the U.S. Constitution as written by the Framers and ratified by the states and the people. The result is an internal coup, subtle but real—like Squealer in Orwell’s Animal Farm, sneaking into the barn at night and changing words in the laws that all the animals agreed upon when they were first inscribed in chalk on the barn wall. No wonder Jefferson called it “sly”, “silent”, “usurping”, “sapping” of our “foundations” toward our “destruction.”

Remember his solemn warning:

“There is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore un-alarming, instrumentality of the Supreme Court.”[xiii]

V.

The remedy Jefferson recommended is simple: Follow the Constitution.

Specifically, as it relates to our time:

• Demand that the Court (or any lower court) stop pretending it has Constitutional authority to tell everyone what the Constitution means. The United States Constitution does not grant the Court any such authority. Read it. No such grant is found. This tradition is simply a holdover from the way English lawyers were trained; and most early American lawyers were trained in the same way. But while the English Constitution allows this, the U.S. Constitution does not. (Again, we’re referring to the U.S. Constitution as written, and ratified, along with Amendments, not as defined and redefined by the Court.)
• Citizens can read the Constitution for themselves, and see what the Constitution means. After all, the Constitution was written by the people to the government (including the judiciary), telling the government (including the Court/courts) what things it can and cannot do.
• The Supreme Court, as outlined in the Constitution, should apply the Constitution, as applicable, to all cases. Any such application must apply to that case only—it must not create a precedent (any precedent is a legislative act, which the U.S. Constitution doesn’t allow the Court). This same Constitutional limit must be binding on all courts operating under the Constitution. Again, many early American lawyers trained in the English system got this wrong by applying their English training to the United States. But where significant parts of English law promoted stare decisis, or precedent, the U.S. Constitution patently does not.
• A lower court may look to a higher court or even a Supreme Court decision and judicial dicta for wisdom; but any court decision—by any court, including the Supreme Court—must only apply to that one case. This makes it constitutional, by the Framers’ definition–the only definition that the people of the United States ever ratified.

The greatest obstacle to this change (ironic that the “change” is simply to follow the actual Constitution and Amendments) is the same in our day as it was in Jefferson’s time: Nearly all attorneys, judges, Supreme Court Justices, law professors, and legal scholars are trained almost solely in the other way of doing things—where the Court is allowed, even expected, to unconstitutionally defy the words of the Constitution and follow the now-accepted tradition of the Court acting above the Constitution. Most of them literally believe that, for all practical purposes, the Constitution means whatever the Court decides it means. Many, if not most, believe that it actually should be this way. They refer to this as the American style of jurisprudence.

If by “American” we mean the intent of the Framers who wrote the Constitution, and the people and state representatives who ratified it, nothing could be further from the truth. There is a way provided in the Constitution to amend it, to change it, and this has nothing to do with what Jefferson called the quiet “sapping and mining, slyly, and without alarm, the foundations of the Constitution”[xiv] by Court decisions, dicta, and precedent.

Remember how strongly Jefferson opposed this. He forcefully declared:

“At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous [members of the government]…that their decisions, seeming to concern individual suitors [cases] only, pass silent and unheeded by the public at large; that these decisions nevertheless became the law by precedent, sapping by little and little the foundations of the Constitution, and working its change by construction, before anyone has perceived that that indivisible and helpless worm has been busily employed in consuming its substance.”[xv]

He really means this. It’s a serious problem. And Jefferson noticed the danger at its infancy. Today we face it full-grown and spread across the nation, now part of nearly every civics textbook, social studies curriculum, U.S. history lesson, college university, law school, late-night talk show, movie, television legal drama, media outlet and government branch, agency, court, and institution. The idea that the Court is above the Constitution, that in fact the Constitution is whatever the Court decides, has become part of a national myth. Yet it is both unconstitutional[xvi] to the core and antithetical to the intent of the Framers. In this much worse iteration, it presents itself to the world as fact. No debate needed. No discussion. End of story.

Five rulers.

No recourse.

What a predicament. We live now, unfortunately, in interesting times, as the old Chinese proverb warned. In truth, from the vantage point of the Framers’ intent, we experience a serious Constitutional crisis in this nation every time the Court delivers a decision that in any way assumes the Court gets to decide or alter the meaning of the Constitution. If the Framers had intended this arrangement (for the Court’s authority to include changing the Constitution in any way), they would have characteristically required a 2/3 or even a 3/4 decision by the Court on any such question, and additionally required a 2/3 or 3/4 consent by at least one other branch of government. They demanded this for amendments, and for treaties, both of which they knew could change the Constitutional law of the land. But they didn’t require anything like this in Court decisions, simply because such decisions were only designed to apply to one case, never intended to legislate by precedent—itself a major unconstitutional change to the Constitution.

Had judicial defining and redefining of the Constitution, or creating legislation by precedent, been the intent of the Framers, all the founding commentary about amending the Constitution would apply. Federalist Papers 39 and 85 are among the best explanations of what is needed to amend the Constitution, and why, and what should be considered in any amendment process, or anything else that changes the Constitution—yet these documents wholly ignore Supreme Court decisions. Why? Again: Because any Court decision was, according to the Constitution, and the Framers, applicable only to a given case—creating no precedent whatsoever.

VI.

As far as I can tell, this leaves us three options. I would be very interested to consider others that readers come up with, or find, but these are the three I can currently conceive.

Option One: End the practice of judicial precedent. This immediately puts decisions about core values back in the hands of the voters. The Court will no longer legislate. The fear of 5-person rule will disappear.

The courts will become a more powerful line of defense for the accused, a place where someone who believes the laws are bad [or don’t apply] in a given case, and that true justice will take this into account in their specific case, can turn for remedy with more efficacy. The courts will also stand once again for the actual Constitution (not the ad libitum version of it they make up as they go), holding other branches and all levels of government to its standard—not whatever they can “mine” from history, individual views, or any other source.

Again, this was the original intent of the Framers. On a practical level, of course, this is a major shift. Every law school would have to be entirely revamped, and every practicing lawyer and legal thinker would need to scrap much of what they’ve learned and refocus their legal knowledge in a whole different direction. Every citizen, potential juror, would also need a new education on freedom. A good change to our society, no doubt. But far from easy.

Option Two: If we can’t—or choose not to—end the practice of legislation by judicial precedent, which (as mentioned) is really an alternative legislative power that largely skirts the voting electorate, we will need to amend the Constitution to include the kinds of checks and balances the Framers always required to change the Constitution. Specifically, on any Court decision that redefines, in any way, the meaning or scope of the Constitution and Amendments from their original meaning, the Court will need to decide by a 3/4 majority, and receive the consent of either 2/3 of Congress or 2/3 of State Legislatures, or both. The numbers could be flipped, meaning Court decision by 2/3 with the consent of 3/4 of state legislatures and/or 3/4 of Congress (or, if not these precise arrangements, something similar).

These are high marks, to be sure; but they are exactly the standard the Framers required for any actual, lasting change to the Constitution. The other kind of change to the Constitution, from treaties, demanded similar arrangements, as outlined in Article II, Section 2 of the U.S. Constitution. If the Court is going to be allowed to change the Constitution and meanings of words or phrases in the Constitution by precedent, or infer meanings as it chooses, the Framers would demand such changes/amendments to meet at least the same standard—and we as their inheritors should accept no less.

Option Three: If we don’t fix the problem, we will, as Jefferson forecast, see a major decline in freedom and eventually lose our Constitutional system. Rule by five individuals in black robes is much closer to full implementation right now than in Jefferson’s time; and under the current system, given this flaw in the way the Court is allowed to behave, it will inevitably come—unless we address this and make changes. Make no mistake, unless changed this will ruin the entire system, and our entire nation.

The sad part of this all seems to be that, given human nature, when the Left had a majority on the Court, it was content with the system that favored its views; more recently the Right has discovered the same type of comfort with a Right-leaning majority on the Court. Eventually, however, this system will not hold. Government power always tries to centralize, and then expand and dominate. It has already centralized to the Court and those it holds close as allies. No limits, checks, or balances stand in the Court’s path to the crown. Sovereignty has already consolidated from the people and states to Washington, where it has been rapidly expanding for decades.

Now, 5 Rulers need only exert their power. History proves that, unless this power is limited, or at least effectively checked and balanced, it will eventually be used in ways detrimental to all. Unless something changes in this model, the corrupt execution of this power is inevitable.

*To learn the 3 specific, effective things we as citizens can do about this issue, that will really make a difference, read FreedomShift by Oliver DeMille—available here >>

NOTES

[i] Collected Writings of Thomas Jefferson, Bergh, vol 15, p 241.

[ii] Ibid., p 486.

[iii] Ibid., p 241.

[iv] Ibid., vol 16, p 113.

[v] Ibid.

[vi] Ibid., vol 15, p 31.

[vii] Ibid., vol 15, p 486.

[viii] Ibid., vol 16, p 113.

[ix] Ibid., vol. 15, p 355.

[x] Ibid.

[xi] Ibid.

[xii] See ibid., vol 1, p 120.

[xiii] Ibid., vol 15, p 241.

[xiv] Ibid., vol 16, p 113.

[xv] Ibid., vol 15, p 486, emphasis added.

[xvi] The original meaning of “unconstitutional”, not the “new” definition of “unconstitutional” self-servingly adopted by the Court.

Category : Aristocracy &Blog &Citizenship &Community &Constitution &Culture &Current Events &Education &Generations &Government &History &Independents &Leadership &Liberty &Politics

Jefferson-Madison Debates: Mobs, Mobs, Everywhere

October 24th, 2018 // 7:31 pm @ Oliver DeMille

Rising Emotions, Rising Problems

What Next?

I recently read a very thought-provoking article on this topic, and I recommend it for all Madison-Jefferson Debate readers. If you’re like me, you won’t agree with everything you read in it, but you’ll agree with some, and it is full of ideas that are poignant and timely. The article is in the October 2018 issue of The Atlantic: “James Madison vs. the Mob”, by Jeffrey Rosen.

Enjoy the read. And ponder, debate, and think about this. It’s a true sign of our times…

https://www.theatlantic.com/magazine/archive/2018/10/james-madison-mob-rule/568351/

Category : Blog &Citizenship &Community &Constitution &Culture &Current Events &Economics &Education &Featured &Generations &Government &History &Independents &Information Age &Leadership &Liberty &Politics &Postmodernism

The Madison-Jefferson Debates: What Isn’t True

August 7th, 2018 // 1:22 pm @ Oliver DeMille

Reality or… Not?

Some things just aren’t true, even if we think they are. Even if we are assured that “everyone” says they’re true; and even if the experts—almost always unnamed—have formed a consensus on the matter. Actually, the more you get know the experts, the more you realize they aren’t in consensus on almost anything.

Now, let’s be clear. A lot of what we’re told is true. But not everything. And that’s why sometimes it’s important to take a step back and really dig into things. Research. Find out. There are whole websites dedicated to setting the record straight about urban myths, generally accepted “truths”, quotes that are attributed to someone who never said those words, etc. We give “Pinocchios” to politicians who fib, and “Fact Checker” is a growing career field in the Information Age. (Is it really? Or does it just seem like it? Ask the question on Google and you can spend hours studying the various listings. Or ask the same question on social media and wade through hundreds, or even thousands, of opinions.)

Falling for Everything

Here are few items that most people consider truth. Unassailable. Set in stone. Incontrovertible.

• Lie Detector Tests
• DNA Evidence
• Election Polls
• Carbon Dating

Which are sure? Which are certain? Not all. Do you know which of these are fully accepted by the experts in the field—no exceptions? Answer: none. All of the above are rejected by at least some experts, even where a majority of experts agree. Have you studied the arguments, evidence, tests and conclusions on each? Or any? Note that even where the science is firm, like with DNA evidence for example, the way experts present such science is at times incomplete or misleading. Or, another example, even if the statistics used in a pre-election survey are accurate, the wording of a specific survey question can skew the entire result; and what if survey respondents are afraid or ashamed to tell the truth, like in the 2016 U.S. presidential election when many voters didn’t want people to know they planned to vote for Donald Trump? In such cases, the math and the science can be technically correct, but the way experts use them turn out “wrong”, because all the variables aren’t controlled.

In short, on many things we simply know less than we need to. And yet most people are comfortable making decisions based on things they know very little about—just taking someone’s word for it. It’s a habit for most people.

But things are not always what they seem. Truth isn’t always what the experts claim. This doesn’t mean that every crackpot theory questioning the experts is correct. But it does suggest that we should be independent thinkers who read the original data or studies where possible and scrutinize things for ourselves. Independent thinking is required to maintain independence. This is obvious, isn’t it? But most people don’t follow this approach.

Time to Think

For our Madison-Jefferson conversation this week, I’m recommending the attached article. It is a great read, and an important one. It demands that we look at things more deeply, and think more wisely. It calls us to research more, question more, dig deeper, and not just accept conclusions at face value. It is one of those articles everyone should read and deeply consider. Agree or disagree, this article will make you think!

Enjoy…

How Social Science Might Be Misunderstanding Conservatives >>

Category : Aristocracy &Blog &Business &Citizenship &Community &Constitution &Culture &Current Events &Economics &Featured &Generations &Government &History &Independents &Information Age &Leadership &Liberty &Mission &Politics &Producers &Prosperity &Science &Statesmanship &Technology

The Jefferson-Madison Debates: The Third Layer

July 17th, 2018 // 7:08 am @ Oliver DeMille

“When technology advances too quickly for education to keep up,
inequality generally rises.”
—Eric Brynjolfsson and Andrew McAffee

“Your true greatness comes when you focus not
on building a career but on finding your quest.”
—Vishen Lakhiani

“Engaged students are 16 times more likely to report being academically motivated than students who are not engaged. Finding ways to engage the 40% of students who are not engaged would have a significant impact on their academic motivation.”
—Quaglia Institute

Foundations

Education is like a map. Or, more precisely, it mirrors the entire field of maps and map-making.

Understanding the massive change now occurring in how we make and learn from maps is in many ways directly applicable to the coming changes in education. And like in education, many people in the older generations (born before 1980, or even 2001), don’t understand that a major revolution is ahead—one so big that what we call a “map” today won’t even qualify as a map in twenty years. (And much of what we call an “education” today won’t even count as education two or three decades from now.)

The pre-modern map (Layer One) emphasized the physical traits of the earth: continents, oceans, seas, rivers, mountain ranges, islands, etc. More advanced pre-modern maps included things like ocean currents, the altitudes of mountain peaks, and the trade routes most effectively used by overland and shipping merchants.

During the modern era, we added governments to our maps (Layer Two): national borders, towns, cities, capital cities, provinces, states, counties, etc. This was part of the great shift from pre-modern to modern. Governments and their jurisdictions became as prominent in world affairs as the natural physical features of the earth. People using maps needed to know what government they’d be dealing with in a given spot as much as where the ocean currents would take them and what mountains or rivers they’d need to traverse.

Further Up and Further In

The current shift from modernism to post-modernism is equally momentous. Our maps now require another set of symbols, colors, and words—to tell us what we need to know about our world. The physical features on the maps (continents, oceans, rivers, mountains, lakes, etc.) are still there, as are the political borders that tell us what government controls each area on the illustration.

But now a third layer of understanding is superimposed on top of the physical and political levels of each map. Most people haven’t even seen such maps yet, so they think of a “map” as something made up of Layer One (mountains, rivers, oceans, etc.) and Layer Two (borders, cities, etc.). They barely fathom what else could be needed.

The post-modern Layer Three is based on what Parag Khanna calls “Connectography.” For example, look at a traditional map of Africa. The Nile is there, and the Cape. The Horn of Africa is obvious, along with the Sahara. There are regions of jungle, and large swaths of savannah. Then there are the many nations and their borders—most of them originally established by European plantation owners. Capital cities are listed in bold letters, the names of nations in larger type.

But where is Layer Three? At its most basic, Layer Three shows highways, airports, and hospitals. In a more detailed Layer Three map, you might find illustrations showing the route of pipelines, Internet cables, or even power lines. These were the simple beginnings of Layer Three maps. A little more advanced Layer Three maps don’t just tell you what road to take, they tell you how long it will take to arrive in current traffic—or redirect you if an accident occurs and is now blocking traffic. They are cast in real-time and they are always changing—truly interactive. Layer Three is a major upgrade.

But more is coming. For example, narrow the map of Africa to Kenya or Ghana. Where are the hotspots of Internet usage? Where are the Internet deserts? What about smartphone usage rates? What food is shipped to a place, and can you get the kind of banana and cereal you want while you are visiting? If you want salmon for dinner, will what you are served be farm raised or wild? – Come from the Atlantic or the Pacific? What nation’s laws governed the fishermen who caught your dinner? Such information tells you a great deal about the probable quality and freshness of what you’ll be eating, and whether or not to even order it.

Put these on the map, and you’ll begin to see how Kenya, Ghana, or any other nation in Africa, or anywhere else in the world, is actually connected. Not understanding such connectivity—or its absence in a certain area—is akin to not knowing what the political lines denoting borders signify on the map. Such ignorance basically renders the user of the map illiterate.

Consider an almost-absurd example, to illustrate:

“Are these lines just very straight rivers?” a total map novice might ask. The laughter that follows is kindly, but surprised. “How can anyone not know about government borders on a map?”

In the future, however, this will apply to much more than national borders.

A Missing Piece

Another Layer Three example is very important: For example, on the map of Kenya, what natural resources are owned by or contractually promised to Chinese companies or the Chinese government? Versus what resources are owned by or contracted to U.S. firms? Or Canadian?, Dutch?, Japanese?, Italian?, British?, French?, German?, Korean?, Indian?, etc. What multi-national companies have their own security forces at work in these places—governing, citing, controlling? Where have they blocked mobile phone and Internet service—and why? If you know the Layer Three map of Africa this way, you’ll understand the world in ways other people simply cannot grasp. As Khanna put it: “China’s relentless pursuit of [natural resource contracts around the world] has elevated…to the status of a global good on par with America’s provision of security.”[i]

In other words, if anything happens militarily in the world, the U.S. is sure to get involved (or at least consider getting involved); and if anything happens concerning natural resources—oil, minerals, food, wood, precious metals and gems, water, etc.—China is sure to jump in. It likely already has contracts signed and sealed. In fact, put alliances and treaty requirements on the map, and something stands out: China owns numerous economic resources around the globe that the U.S. does not. Moreover, as of 2015 the United States was bound by treaty to defend 67 nations in the world; China was only bound to protect 1.[ii]

In short, a lot of global resources and money are slated to flow to China in the decades ahead (it has already begun), while huge assets and cash are scheduled to flow away from the United States. One has an economy that is programmed to head up, the other down. If you don’t consult a Layer Three map, this information is unknown.

Look at the map with the Layer Three approach, however, and the future becomes immediately clear: It belongs to China. The U.S. and Europe[iii] are falling further and further behind. This is obvious on a Layer Three superimposition.

But remove Layer Three and all you have are the continents, oceans, lakes, mountains, political borders, cities and towns. Nothing about Levels One or Two tell you that China is on the rise—with contracts across the globe, and a growth rate in ownership of natural resources and supply chains for these resources that all but assure them monopoly status in the decades ahead. And this example, China, is only one of the many hugely important things missing from Layer Two maps—which are the only ones most of us ever engage.

To reiterate: the pre-modern and modern maps fail us. They don’t even tell us what we need maps to communicate (rather than merely travel) in order to help us make the best local decisions. As a result, the old maps are almost worthless. They are historical relics, but not the most effective tools of decision-making or strategy.

For that, we need Level Three maps superimposed on the older models. As Joshua Cooper Ramo put it: “Ball up your right hand into a fist. Take your left hand and open the fingers wide. Hold the hands a few inches apart. You can think of your left hand as the vibrating, living network of connection and your balled-up fist as concentrated power. Right hand, Google Maps; left hand, millions of Android phones. This is the picture of our age.”[iv] But it is only an early picture. By the time you read this, will Google Maps and Android phones be replaced by something more advanced? Not unlikely.

What is Not Seen

Again, most people today have no idea this is happening. At least not at this scope, or pace. Many feel a general sense of a rising challenge, even a threat, from China, for example. But they don’t know what it means, why it is real, or how it is developing. They have no clue how to prepare for or address it.

The same is true of education. To wit: geography is still taught in two layers—much like it was in the 1960s. Technology makes it easier to teach and learn, but Layer Three tools and Layer Three thinking are absent in all but a very few out-of-the-box classrooms or learning environments. As Toffler put it, too many of today’s young are being raised to show up on time, do repetitive tasks without complaining, follow instructions, and memorize a great deal of knowledge without deeply understanding it. This is the focus of most schools.

These three lessons—punctuality, repetitive work, and rote memorization—routinely pass for what we call “education.” They are, in fact, the key lessons of schools in modernism. The pre-modern era emphasized “the 3 R’s: readin’, ’ritin’, and ’rithmetic,” and these prepared the young for success in the agrarian economy. Likewise, the three lessons above were often effective training for landing and keeping a job during the industrial age.

But today’s emerging information economy demands something different. Success now demands the Third Layer of education. It includes the kind of knowledge learned from the 3 R’s and also post-World War II schooling in history, literature, math, science, and social studies, but it also superimposes a Third Layer of education as well, which is more attitudinal and skills based: initiative, innovation, creativity, resilience, ingenuity, tenacity, recognizing opportunities, go-getter-ness, and entrepreneurial risk-taking.

The Third Layer is as different from most modern public and private schooling as the typical 1960s, 1980s, or 2000s high school or elementary was from the one-room schoolhouse. If the pre-modern age gave us Mary and Laura in the Little House series, studying at home or the local school (which was also the town hall, town theater, and community church), the modern age gave us the high school of Pretty in Pink, The Breakfast Club, High School Musical, Dead Poet’s Society, One Tree Hill, 90210, or even 22 Jump Street.

All are outdated now. All fail to prepare our nation’s youth for the actual economy of the 21^st century. We are still training the young to succeed in a world they can only study about in history books. Indeed, it is no exaggeration to note that the more time they spend in the modern school system, including the increasingly outdated university campus, the less prepared they’ll likely be to compete effectively in the rough-and-tumble emerging global marketplace with its worldwide competition and demands.

For example, a university degree isn’t what it used to be: The average graduate from the class of 2016 had $37,000 in student debt and couldn’t get a decent job in his or her field—or in any other equivalent field. There are of course exceptions, but the numbers of those leveraging college degrees into effective careers significantly decreases each decade (Note: in North America, Europe, and Latin America, but not in China). In short, today’s young adults are too often receiving a Layer Two education in a world that demands Layer Three knowledge, choices, and skills.

Past, Present, and Future

Few current students are being taught the skills of success that are needed in the new economy. The real economy. Layer Two schools simply do not teach initiative, ingenuity, or innovation. They don’t purposely teach chutzpah, audacity, grit, wise risk-taking, entrepreneurialism, or nerve.

Note that these are precisely the character traits that made America the world’s superpower. And Britain before her, and earlier, Spain and Portugal. These are the very traits that put Egypt at the top, then the Greek city states, and later Rome. These are the characteristics that gave the Gauls, Franks, Anglos and Saxons their edge.

They didn’t have Layer Three maps, to be sure, but they engaged in their era’s “Layer Three” education of the youth, teaching them the skills of resourcefulness, inventiveness, and daring in the face of difficulties. Some of these societies emphasized good purposes (such as life, liberty, and the pursuit of happiness, etc.), while others embraced less noble goals (aristocratic rule of an elite class over the rest of the people, dominance over neighboring nations, a pursuit of wealth through violence, etc.).

But whatever their dreams—good or bad—it was Layer Three skills (initiative, boldness, pluck, enterprise) that lifted every great-power nation in history to the top. As the society that now holds this spot, we (North America, and to a lesser extent Europe) are stunningly lax about teaching these traits. We increasingly downplay them as unimportant and even unattractive. Even “against the rules”. As a result, we have lost our edge. We have largely lost our drive. Too many modern Americans have lost our shared vision and purpose. Unity is a thing of the past.

Indeed, Americans were once unified in the goal to spread freedom, opportunity, and prosperity to the world. Now, the best we seem to be able to muster is a hope to afford college for our kids, and that they’ll get a safe, secure career with good benefits—and as little fuss or struggle as possible. Most colleges themselves seem committed to shielding our young adults from challenges, difficulties, thinking, and any diverse or challenging ideas. This is not the behavior of a nation on the rise. It is the opposite. To paraphrase C.S. Lewis, we are castrating the stallions of the younger generations, then hoping they’ll be fruitful.

But apply Layer Three to the map. Where in the world do we find whole populations burning passionately with drive, initiative, innovation, nerve, entrepreneurial risk-taking, resilience, a hunger to achieve, audacity, ingenuity, resolve, and tenacity? Where do we find the largest concentrations of people who thrive in the face of uncertainty and embrace whatever is hard, and flourish even in an environment of impermanence and difficulty?

When you find a lot of people who have these traits, note where they live. Not in North American or Europe (at least not in large concentrations). In our modern American schooling/career system, for example, our major focus seems to be avoiding uncertainty, impermanence, and difficulty—yet these are the unavoidable realities of the global economy.

Through the Magnifying Glass

Look even closer. Enter this data electronically on a map and you’ll find these traits in China. Indeed, the heartbeat of China is a new “eye of the tiger.” A similar fire burns in India, and a less populated but angrier flame blazes across the Middle East. Layer Three also shows us the rise of such passion in parts of Latin America, Africa, and Russia. These are trigger-points of the decades just ahead.

Where such passion does show up in North America—from California to British Columbia, from Texas to New Hampshire to Newfoundland to Florida, it is usually personal, career-oriented, and commercial. A better job. A marketable education. A promotion.

These hardly match the resolve or intensity of China and its new economic allies across the developing world. They want to lead the world, change the world, and do great things. They want victory, and they see their lives as part of a battle.

In Europe the irony is even more pronounced. The Layer Three map shows numerous pockets of extreme passion in the nations of the E.U.—but zoom in, and you’ll note that most of the people with this kind of fire in the belly are usually recent immigrants from the Southern half of the globe.

The one great exception in North America and Europe is the entrepreneurial class, those who Steve Jobs called the dreamers, the rebels, and the risk-takers. They graduate from college and reject job offers from the Fortune 500 to pursue risky start-ups or launch non-profit charities. Or, increasingly, they skip college altogether, or drop out, and get started on their business or charitable ventures even younger, with an edgier, more idealistic and relevant education.

Their Layer Two parents and grandparents try to talk them out of such endeavors, but these young people have a hunger that typical education and careers won’t fill. They are a Remnant, throwbacks to the earlier Americans who got on the Mayflower, worked and died in Jamestown, went West by horseback or wagon to explore, start, create, and change things. They are the New American Founders, enlightened and ennobled by hindsight of the mistakes of the past, and impassioned by their view of the future – and we desperately need them.

We need a generation of them.

Now.

In the Now

If you are one of their parents or grandparents—worried that your youth are making such choices, decisions that make no sense to you—you can relax. Yes, the kind of risky leadership they are engaging is scary to the older generations who were raised to seek security. But the Third Layer maps clearly show that we no longer live in an era of security.

Even young people who follow the traditional path of college and career suggested by their elders will find that for most people it doesn’t endure in the new economy. We are in an era of tumult, change, and uncertainty—and this is only going to increase for the next few decades.

Those who try to live by Second Layer rules will fall further behind. College degrees won’t bring most of them secure jobs, and seemingly secure careers will suddenly be lost to recessions, new technologies, outsourcing, mergers, regulatory changes, companies sold to foreign investors, and competition, along with a host of other unforeseen realities.

Indeed, those who will do the best in the new economy—whose contributions and livelihoods will end up being the most secure—will be the new entrepreneurial class. The innovators. The roll-with-the-punches change agents. Those who can think, lead, initiate, and wisely assess risk. We are indeed entering the Age of Risk, and this massive shift in the world economy is here to stay. Business has already caught on and is changing things to meet the new reality. But education is still in denial, along with most in government.

Sadly for those who allow themselves to be swayed by the current denial of many in the educational sector and Washington, people caught in Second Layer thinking will be the losers of the next thirty years. The winners will be Third Layer risk takers who tenaciously create ways to succeed in the new environment. Who make a way.

Many of them are already looking at the world through the lenses of Third Layer maps and mindsets, and they understand something very real: The future is theirs. Moreover, our future is in their hands.

The more we can do to help and support them, the better things will turn out for all of us. The successes and failures of our entrepreneurs will determine the future. Just as it has determined the past.

Fall or Rise

This reality causes serious concerns. Anyone who takes a good look at the current university campus model of learning finds a number of problems. Not the kind of challenges that demand reform, mind you, but rather a systemic, structural network of problems that will require a true educational revolution. The need for change is, to put it lightly, drastic.

Just consider the following commentaries by some of today’s top thinkers on the topic of the emerging economy and its ties to the type of education we now need. For example, MIT’s Eric Brynjolfsson and Andrew McAffee wrote, in a section of their book labeled “Failing College”:

“Richard Arum and Josipa Roska…and their colleagues tracked more than 2,300 students enrolled full-time in four-year degree programs at a range of American colleges and universities. Their findings are alarming: 45 percent of students demonstrate no significant improvement on the CLA [Collegiate Learning Assessment, which tests ‘critical thinking, written communication, problem solving, and analytic reasoning’] after two years of college, and 36 percent did not improve at all even after four years.

“The average improvement on the test after four years was quite small…. What accounts for these disappointing results? Arum, Roska, and their colleagues document that college students today spend only 9 percent of their time studying (compared to 51 percent on ‘socializing, recreating, and other’), much less than in previous decades, and that only 42 percent reported having taken a class the previous semester that required them to read at least forty pages a week and write at least twenty pages total.

“They write that, ‘The portrayal of higher education emerging from [this research] is one of an institution focused more on social than academic experiences. Students spend very little time studying, and professors rarely demand much from them in terms of reading and writing.’

“They also find, however, that at every college studied some students show great improvement on the CLA. In general, these are students who spent more time studying (especially studying alone)…”[v]

The authors also wrote: “The good news, though, is that technology is now providing more…opportunities than ever before. Motivated students and modern technology are a formidable combination. The best educational resources online allow users to create self-organized and self-paced learning environments—ones that allow them to spend as much time as they need with the material, and also to take tests that tell them if they mastered it.”[vi]

Futures Past

The quality of learning in such online venues is very often extremely high. For example, when a graduate level AI course at Stanford was opened to participants on the Internet for free, over “160,000 students singed up for the course. Tens of thousands of them completed all exercises, exams, and other requirements, and some of them did quite well. The top performer in the course at Stanford, in fact, was only 411^th best among all the online students. As Thrun [the instructor] put it, ‘We just found over 400 people in the world who outperformed the top Stanford student.’”[vii]

Likewise, “…Laszlo Bock, Google’s senior vice president of people operations, notes that college degrees aren’t as important as they once were. Bock states that ‘When you look at people that didn’t go to school and make their way in the world, those are exceptional human beings. And we should do everything we can to find those people.’ He noted in a 2013 New York Times article that the ‘proportion of people without any college education at Google has increased over time’—on certain teams comprising as much as 14 percent.”[viii]

Mindvalley founder and CEO Vishen Lakhiani wrote: “I’ve personally interviewed and hired more than 1,000 people for my companies over the years, and I’ve simply stopped looking at college grades or even the college an applicant graduated from. I’ve simply found them to have no correlation with an employee’s success.”[ix] Sadly, too many people still hold on to old educational models that no longer deliver what they once did, or what they now promise.

Lakhiani put it this way: “But here’s the problem. Most of us are using systems that have long [since] become obsolete. As Bill Jensen said in his book Future Strong: ‘Even as we enter one of the most disruptive eras in human history, one of the biggest challenges we face is that today’s systems and structures still live on, past their expiration dates. We are locked into twentieth-century approaches that are holding back the next big fundamental shifts in human capacity.’”[x]

Bestselling author Neil Pasricha told the following story: “A senior partner at a prestigious global consulting firm once said to me after a boozy dinner: ‘We find Type A superachievers from Ivy League schools who need lots of reward and praise…and then dangle carrots just over the next deadline, project, and promotion, so they keep pushing themselves. Over every hill is an even bigger reward…and an even bigger hill.’”[xi] This is enlightening. It’s not the actual education the big corporations are looking for as much as a sense of over-achievement and needing lots of rewards and praise.

Look at this same scenario from the student’s viewpoint. Is this really the career environment we want our young people to pursue? Is this the life we want for them, or the use of their talents that will best benefit the world—or bring them the most fulfillment and happiness? Sometimes, the answer may be yes. But very often, it isn’t.

Billionaire Paypal co-founder and educational innovator Peter Thiel said it even more bluntly: “Higher education is the place where people who had big plans in high school get stuck in fierce rivalries with equally smart peers over conventional careers like management consulting and investment banking. For the privilege of being turned into conformists, students (or their families) pay hundreds of thousands of dollars in skyrocketing tuition that continues to outpace inflation. Why are we doing this to ourselves?”[xii] After happily reminiscing that he eventually took the entrepreneurial path of founding tech companies instead of following his major in graduate school, Thiel said[xiii],

“All Rhodes Scholars had a great future in their past.”

The Next Normal

The modern college/career system, which is increasingly Level Two education in the new economy, is more and more outdated. In the book Platform Revolution, technology experts Geoffrey G. Parker, Marshall W. Van Alstyne, and Sangeet Paul Choudary argue that the old-style university model is surviving largely because government regulations keep true innovators from competing on anything close to a level playing field.[xiv] If this were to change, no doubt online educational platforms would do for education what Amazon has done for bookstores (and other retailers), Uber has done for taxi services, Wikipedia has done to the encyclopedia publishing industry, and online news sources have done to many newspapers.[xv] Again, over 400 online students tested better than the top Stanford student in the exact same class.

Parker, Alstyne, and Choudary wrote: “The long-term implications of the coming explosion in educational experimentation are difficult to predict with certainty. But it wouldn’t be surprising if many of the 3,000 colleges and universities that currently dominate the U.S. higher education market were to fail, their economic rationale fatally undercut by the vastly better economics of platforms.”[xvi]

Just imagine much cheaper and higher quality higher educational offerings for all. Consider the work by Khan Academy,[xvii] Minerva,[xviii] Peter Thiel, and other educational innovators. If the government ever ends the current educational monopoly supporting the old-style conveyor-belt approach to higher education, the results will likely dwarf the kind of change we witnessed with the advent of cable television programs, or when Ma Bell was deregulated and replaced by an entirely different kind of telecommunications.

Parker and his colleagues also noted:

“In the years to come, the spread and increasing popularity of teaching and learning ecosystems will have an enormous impact on public school systems, private schools, and traditional universities. Barriers to entry that have long made a first-class education an exclusive, expensive and highly prestigious luxury good are already beginning to fall.

“Platform technologies are making it possible for hundreds of thousands of students to simultaneously attend lectures by the world’s most skilled instructors, at minimal cost, and available anywhere in the world that the Internet is accessible. It seems to be only a matter of time before the equivalent of a degree from MIT in chemical engineering will be available at minimal cost in a village in sub-Saharan Africa.

“The migration of teaching to the world of platforms is likely to change education in ways that go beyond expanded access—important and powerful as that is. One change that is already beginning to happen is the separation of various goods and services formerly sold as a unit by colleges and universities. Millions of potential students have no interest in or need for the traditional college campus complete with an impressive library, a gleaming science lab, raucous fraternity houses, and a football stadium.”[xix]

They’d rather pay a lot less and get a better learning experience.

Focusing In

“Education platforms are also beginning to unbundle the process of learning from the paper credentials traditionally associated with it.”[xx] The authors note that many students now “…appear to be more interested in the real-world abilities they are honing than in such traditional symbols of achievement as class transcripts or a diploma.”[xxi] They want to learn knowledge and skills that help them achieve their life and financial goals, not traditional symbols that no longer really work in the 21^st century economy.[xxii] Results-Based Learning is increasingly in demand.

For example, “A high ranking on TopCoder, a platform that hosts programming contests, will earn a developer a job at Facebook or Google just as fast as a computer science degree from Carnegie Mellon, Caltech, or MIT. Platform-based students for whom a traditional credential is important can often make special arrangements to receive one—for example, at Coursera, college credit is a ‘premium service’ you pay extra for.”[xxiii] Another example is Duolingo, a crowdsourcing foreign language platform that is teaching more people a foreign language than all the students studying foreign language “in high school in the U.S. combined.”[xxiv]

“Once there is an alternative certification [to college degrees] that employers are willing to accept,” Parker and his colleagues affirm, “universities will find it increasingly difficult…. Unsurprisingly, developing such an alternative certification is among the primary goals of platform education firms such as Coursera.”[xxv] Other organizations are trying to build such educational platforms as well, including Udacity, Skillshare, edX, and others.[xxvi] Even top specialty schools, like MIT and Julliard, are offering open enrollment online courses. (Their selling point is often focused on “Learn from the MIT faculty,” or “Learn from the Julliard faculty,” a nod to the new reality that mentoring is becoming even more important than institutionalism.)

No doubt more innovative higher educational options will thrive (and at the high school level as well), until some of them restructure modern education like eBay, Amazon, Facebook, Uber, the Internet, or Google have done for other fields. As far as student learning is concerned, numerous self-produced online tutorials, on platforms like YouTube and others, provide excellent educational opportunities—both to learn and teach.

All of these developments and trends are part of Third Layer education, and they are almost universally moving away from outdated traditions, methods, and beliefs of conveyor-belt-style education and schools. A new economic era is already here, and for those who know what to look for, new educational models are rising to support what is now needed. Third Layer, Results-Based learning is the future of effective education. The focus is on individualized learning, thinking, and applying rather than conveyor-belt schooling.

The new maps are here, if we’re willing to look.

(This topic is addressed in more detail in Hero Education by Oliver DeMille, available here>>)

NOTES

[i] Parag Khanna, 2016, Connectography, xvii.

[ii] Harper’s Index, Harper’s Magazine, September 2015.

[iii] The Brexit and election of Donald Trump didn’t seem to make much difference in this trend. See, for example, Geoffrey Smith, “The Brexit Crisis That Wasn’t,” Fortune, October 1, 2016; See also, Jeff Immelt, “After Brexit, Global is Local,” Fortune, August 1, 2016, 71-72.

[iv] Joshua Cooper Ramo, 2016, The Seventh Sense, 122.

[v] Erik Brynjolfsson and Andrew McAfee, 2014, The Second Machine Age, 197-198.

[vi] Ibid., 199.

[vii] Ibid., 200.

[viii] Cited in Vishen Lakhiani, 2016, The Code of the Extraordinary Mind, 24.

[ix] Ibid.

[x] Ibid., 93.

[xi] Neil Pasricha, 2016, The Happiness Equation, 150.

[xii] Peter Thiel, 2014, Zero to One, 36.

[xiii] Ibid., 37.

[xiv] See Geoffrey G. Parker, Marshall W. Van Alstyne, Sangeet Paul Choudary, 2016, Platform Revolution, 263-268.

[xv] See ibid.

[xvi] Ibid., 268.

[xvii] For example, see commentary in Brynjolfsson, 199.

[xviii] For example, see commentary in Parker, 268.

[xix] Ibid., 266.

[xx] Ibid., 266-267.

[xxi] Ibid., 267.

[xxii] Ibid., 265-268.

[xxiii] Ibid., 265.

[xxiv] Cited in ibid.

[xxv] Ibid., 8.

[xxvi] See, for example, ibid., 265.

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Jefferson Madison Debates: John Adams on How to Fix Washington D.C. in 1791 and 2018

June 28th, 2018 // 7:26 pm @ Oliver DeMille

“Odd, that so many should favor frames that seemed to be trying to outdo the art they held.”

~Brandon Sanderson, The Alloy of Law

What You Think You See

In the old American West, a façade town featured two- and sometimes three-story buildings lining Main Street, so visitors to the town would be impressed with how up-and-coming the community must be.

But when a person walked around to the side and back of the buildings, it turns out they’d find mostly one-story structures—sometimes little better than shacks or huts.

A few were even a façade built on the front of a rickety lean-to.

Some were respectable buildings, but they were usually made of adobe or pine rather than the fine hardwood edifices promised by their Main Street facades.

And, as I mentioned, they were only one story tall despite their appearance from the front.

Indeed, the only purpose of the two- or three-story façade was to impress.

In modern times, the idea that perception is reality has reached the level of myth.

To Conform or Not To Conform

It is taught in various circles as unquestioned truth, parroted in movies and television programs as a lasting principle, and often used to scold would-be individualists into working harder to conform and fit in.

“We must impress others to get ahead in the world,” the common wisdom seems to assure us.

C.S. Lewis lambasted this view in his classic, “The Inner Ring.”

If you spend your life trying to impress and fit in, as almost everyone does, he warned, you’ll waste a lot of time and energy and miss many of the important things that really matter in life.

Moreover, he predicted, you’ll fail to appeal to the only real society of substance, the other people who ignore trying to impress and fit in and instead set about doing good things in the world without worrying what others think.

He called this group the true inner ring, whose motto was something along the lines of “perception is merely perception—truth, reality, integrity and quality are what matter.”

John Adams wrote about this topic in his little-known and seldom-read classic, Discourses on Davila, which may be his best book next to Defence of the Constitutions of the United States (in fact, he referred to Davila as the fourth volume of Defence).

He said that nearly every person is plagued by a debilitating desire to be esteemed by others, to impress and fit in, to be admired, and that this is the basis of many human flaws including jealousy, envy, ambition, vanity, hatred, revenge, pride, and most human pain.

These are Adams’ specific words.

Adams said this desire for admiration is as real as hunger, and the cause of more suffering, anxiety, stress and disappointment than famine.

In contrast, the really good things in life, including virtue, nobility, honor, loyalty, wisdom, service, strength and so on, may or may not increase the admiration of others, but are often valued only to the extent that they do.

Competing for Mediocrity

Sadly, many people seek these things only if, and to the degree that, they increase admiration from others.

Far too many things are sought by mankind only because they attract “attention, consideration, and congratulations…” Adams said.

Likewise, too many good and important things are not pursued by many people because they do nothing to boost one’s status or station.

By the way, the point of Adams’ book on Davila is to show that because of basic human nature—built on this inner drive of nearly all men and women to rise in station, and not just to rise, but to rise above other people—there will always be conflicts in human societies and institutions.

His solution was to create separate branches of power, and to set up the government so these branches could check and balance each other in a way that no one government entity could become too powerful.

The result, he said, would be that the people in the nation would be able to live free of overreaching government.

In the process of making this argument he spends a great deal of time showing that this drive to fit in, impress, and in fact outdo other people (by being more impressive and fitting in better than them), was a serious obstacle to human happiness in families, schools, business and all facets of society.

When people become more knowledgeable and learned, for example, they tend to engage in more, not less, conflict with other learned persons.

He was not talking of debate, but of serious conflict.

Thus our schools and great universities, which could be the salvation of society in many ways, are distracted from their potential because their leading inhabitants are constantly striving for Reputation, Notoriety, and Celebration.

These three words are those used by Adams, which he capitalized for emphasis in his book.

Likewise, Adams laments, our branches of government are unable to truly lead because those who should be our best hope for great progress immediately, upon being elected or appointed to office, set out to compete with all other officials for more Fame, Glory, Reputation and Credit.

Again, these are Adams’ words.

Growing or Shrinking

Voters send representatives, presidents and others to do their will, to improve things, but the real work of most men and women lifted to leadership is to win this contest with each other.

“Improve the Nation, or Impress the Nation. That is the question.”

And the drive to impress nearly always wins the day.

Adams wrote of humanity’s so-called honors in withering terms:

“What is it that bewitches mankind to marks and signs? A ribbon? a garter? a star? a golden key? a marshall’s staff? or a white hickory stick?”

He is mocking us now.

“Though there is in such frivolities as these neither profit nor pleasure, nor anything amiable, estimable, or respectable, yet experience teaches us, in every country of the world, they attract the attention of mankind more than…learning, virtue, or religion.”

Furthermore, Adams continues, they are sought by the poor, who believe such honors will lift them to equal status with the rich, and they are sought by the rich, who believe that without these symbols they will be lowered to the status of the poor.

This is the great challenge of human progress—we ignore our great potential to focus on silly attempts to impress.

We do it as children, as youth, as adults, and in old age.

The solution, in the case of academia, is to closely avoid putting scholars or administrators in charge of education, but leave oversight to the parents.

For government, the fix is to allow the people to frequently replace their officials at the election booth—to remove them as soon as they forget to do what the people sent them for.

Symbol Above Currency

Adams points out that ribbons, medals, titles, and other symbols of man’s honor, including the white hickory sticks of certain secret societies, aren’t of much use in real life.

Though, if you are freezing, the hickory stick can at least be ignited and bring some warmth.

But these ornaments are nevertheless widely sought because they are symbols of acceptance, fitting in, and impressing others.

Such symbols show that, in fact, the Status Motive is even stronger in humanity than the Profit Motive.

Indeed, giving war heroes and others who accomplish great acts of heroism large sums of money, cars, vacations or estates would be seen as crass by most modern eyes.

Yet these are exactly what many of the ancients gave their champions and heroes, though chariots and carriages were more in vogue than cars.

We give symbols for the highest achievements, precisely because their lack of monetary value communicates just how highly we esteem them—far above money.

For Adams, the honors and symbols are frivolities only because we seek the honors and symbols rather than the actions for which they are awarded.

This is deep insight into human nature, because for true heroes the ribbons and medals mean much less than simply knowing what they did.

Flattery and Failure

It is wonderful to honor heroic acts that truly merit our admiration and thanks, but too often, as Adams puts it, the “great majority trouble themselves little about merit, but apply themselves to seek for honor…”

This is a serious indictment.

He further says that most people try to gain such honors not by going out and serving in ways that merit them.

Such service would be too difficult, or dangerous, or risky.

Besides, just meriting great honors doesn’t ensure that one will receive them.

After all, we are assured, “perception is reality”.

So many people decide that a much better course is to ensure the world’s admiration the old-fashioned way, by directly seeking prestige and hiring publicists, PR firms, and commissioning scholarly studies and the support of experts.

Adams says it this way:

“…by displaying their taste and address, their wealth and magnificence, their ancient parchments, pictures, and statues, and the virtues of their ancestors; and if these fail, as they seldom have done, they have recourse to artifice, dissimulation, hypocrisy, flattery, empiricism…”

But this is more than an interesting philosophical discussion about human nature.

It actually cuts to the very heart of reality.

Because of our thirst for honors, and because façade honors are easier to obtain, all our manmade institutions eventually fail.

Adams mourns that government cannot solve the problems of humanity, nor will institutions of commerce and business.

Plague of Power

Families and churches come the closest, but even here we spend the generations warring about whether husband or wife should be the head, how long fathers should maintain dominance over their sons, and whether newly married couples now report to paternal or maternal grandfathers.

Likewise, too many churches in history took up arms against unbelievers, and various religions and secular groups resort to violence when they fail to convince in other ways.

Indeed, as soon as men create institutions of any kind, they usually begin to war—within the institution and/or with other institutions.

The solutions, the real fixes to our challenges, Adams teaches, will not come from manmade institutions.

We should set up the best institutions possible, but we can’t rely on them for everything because man’s hunger for approval and applause is always at work undermining progress.

Adams quotes the English poets to make his point:

“The love of praise, howe’er conceal’d by art,
Reigns, more or less, and glows, in every human heart;”
—Edward Young

“All our power is sick.”
—William Shakespeare

If “All our power is sick”, indeed. If so, how can mankind progress?

It turns out there is a solution, and Adams is excited to share it.

Building Greatness

In the cases of family, church, relationships and business, one should simply dedicate one’s life and efforts to truly serving in genuine, if challenging, ways that really make a positive difference.

This was also recommended by C.S. Lewis, who said to ignore trying to impress and instead set out to genuinely serve.

Both Adams and Lewis note that such service is only authentic when we give up concern about getting the credit.

But Adams wants our political leaders to do the same.

He sees real government leadership as deep, committed service, devoid of seeking credit or reward.

He doubts that many will truly forget their drive to impress and seek only to frankly serve, but he holds out hope that a few will rise to such heights of true leadership.

The best honors for such exceptionally great leaders aren’t the praise or baubles of men but the highest of all tributes—emulation.

And in this Adams gives us mankind’s solution to its biggest challenges.

Specifically, while mankind limits itself from great achievements to fight the petty battles of impressing others, becoming more impressive than others, fitting in, and fitting in better than others, the solution is to emulate those who do it better.

What Leadership Is

Parents who emulate great parents are the hope of the world, as are great teachers, inventors, artists, statesmen, leaders, entrepreneurs and others who emulate the greats.

Emulation includes improving upon the best of the past, and as generations of parents and other leaders emulate the best and improve upon it, the world drastically improves.

This, as Adams puts it, is a desire not to impress and fit in, “but to excel,” and “it is so natural a movement of the human heart that, wherever men are to be found … we see its effects.”

Moreover, Adams assures us, it blesses communities and society as much as it helps individuals succeed.

For those who are religious, nothing is more effective than trying to emulate the Son of God, the great prophets, Buddha, and other examples of charity, service and wisdom.

We fall short in many ways, but in trying to answer the question, “What Would Jesus Do?,” as the modern saying goes, we reach for our very best.

Our greatest heroes, regardless of our views on religion, should be the great men and women of history whose sacrifice and greatness makes them most worthy of emulation.

Emulation is as strong an emotion as seeking admiration, and in fact most children learn emulation first.

Which brings us to the topic of this article—How to fix Washington and put America back on track as a standard for freedom, opportunity and goodness in the world.

According to John Adams (and C.S. Lewis, Alexander Solzhenitsyn, and many others), the answer is not to turn to leadership from our big institutions, even if they have as much power as the White House, Congress, Wall Street, Hollywood, Silicon Valley, the Justice Department, the Federal Reserve or even the Supreme Court and Madison Avenue.

The solution lies in leadership, but not from the top down.

We will not get back on track as a society until we lead from below, until we become a society of leaders, and the right kind of emulation is our most powerful means of lasting influence and change.

Who you and I choose to emulate—really, truly, deeply, fully—will determine the future.

Becoming Our Future

It is the most powerful symbol, because who we want to be like on the greatest days of our lives will color the rest of our time on earth.

But it is much more than a symbol.

Too much of modern life is merely a façade.

Too many of our institutions are hollow shells of what we need them to be—and of what they claim to be.

Too often we choose the path of prestige over the path of quality.

Too frequently we listen to the credible rather than the wise.

Too many of our hours and days are spent on the things that are least important.

It was Nietzsche, I think, who said that modernism began when we started substituting the morning paper for our morning prayers.

Allan Bloom called this the closing of the American mind.

Adams told us that such things are hollow, but in the Information Age the voice of understanding is too frequently drowned out by the roar of the crowd.

In all this, however, there is an anchor.

Who we decide to emulate, and how faithfully we do so, will make the future.

And that goes for Washington as well.

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