The Long View

Two Reforms

It's Scripps National Spelling Bee season again, and the championship round is this very evening. ("National" is a little misleading; it's actually a pan-anglosphere event, a word that will no doubt be on next year's word list.) My guys from the ALC and the Spelling Society were out evangelizing the event:

Four peaceful protesters, some dressed in full-length black and yellow bee costumes, represented the American Literacy Council and the London-based Spelling Society and stood outside the Grand Hyatt on Thursday, where the Scripps National Spelling Bee is being held. Their message was short: Simplify the way we spell words.

"Protest" is perhaps too harsh a word for what the demonstrators are doing. The reform advocates who show up for these things are always very supportive of the contestants. The typical anglophone spelling reformer is a retired teacher who finally got to say what she really thinks about the orthography she has been drilling into her bewildered pupils all these years.

I can't say that I ever attended one of the National Spelling Bees myself, but a few years ago in my capacity as an ALC board member I was on television (MSNBC) to explain all this in connection with another Bee demonstration. Latterly, I have confined my contribution to the reform movement by maintaining some resource pages on President Theodore Roosevelt's attempt to implement a partial reform through executive action. (He did not issue an "executive order" in the technical sense of the term, as most histories say; follow the link to see what he did do).

As I have noted before in this space, it has been a long time since the outcome of the Bees turned on "English spelling." Consider this nugget of incomprehension from the Associated Press story linked to above:

Meanwhile, inside the hotel's Independence Ballroom, 273 spellers celebrated the complexity of the language in all its glory, correctly spelling words like zaibatsu, vibrissae and biauriculate.

The last of the three words is a term meaning "two-eared" (I think), coined by mechanically modifying a Latin compound; the second is a simple Latin loan, perfectly regular in its native orthography; and the first is Romanized Japanese. It's not a Spelling Bee, it's an Etymology Bee. Once a contestant identifies the orthography in which a word is written, spelling it is rarely much of a problem. The goal of anglophone spelling reform is to make it possible to do this with English, too.

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One of the difficulties that Anglosphere reformers have is communicating the fact that reform is normal, and indeed that English is unique in not having done a reform since 1755. Portuguese, for instance, as late as the 19th century had a spelling system as whimsical as that of English: lots of conjectural etymologies punctuated by pure entropy. Then Portugal did a reform around 1911 and Brazil did one in 1938. And look, they're at it again:

The spelling reforms have been agreed by Portuguese-speaking nations, but the language seems set to have different written forms for some time to come.

In Portugal, there has been fierce resistance in some quarters to the changes because many of the changes are to spell words the Brazilian way…

Spellings are standardised, and silent consonants are removed in order for words to be spelt more phonetically, turning, for example "optimo" (great) into "otimo". Various accents are also no longer needed. The alphabet grows by three letters to 26 - k, w and y were already in use but until now frowned on by purists.

An ultimate English reform would have to work something like this. The point is to make the pronunciation of every spelling regionally unambiguous, even if the pronunciation is not uniform across the language.

The Wikipedia article on Portuguese shows that there is more to this then just deciding that "night" should be "nite." There is in fact no really satisfactory proposal for English, in part because many reformers think it is that simple. Indeed, as I have often remarked, the use of the term "simplify" is counterproductive; the public hears it as "dumb down." The term is also misleading, since spelling reforms often add rules in order to eliminate exceptions. A far better term is "upgrade."

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I hope that, the next time I'm on television, I'm on for Alternative History speculation in connection with the 2014 centenary of the First World War. I'm actually prepared to talk about that

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Judicial constitutional review will also enjoy a bit of an upgrade if Nicholas Quinn Rosenkranz of the Georgetown University Law Center has his way. In the Stanford Law Review of May 2010, he offers an 85-page first installment of a trilogy. This first offering is called The Subjects of the Constitution. The article proposes to re-conceptualize constitutional review using a highly focused form of textualism. Here is the premise of the exercise, if not quite the point:

Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations [but in reality] the Constitution prohibits not objects but actions [and] actions require actors….

The fundamental question, from which all else follows, is the who question: who has violated the Constitution?

The fundamentality of the "whozz question (and also of the "when", as we will see in a moment) is not very obvious, to put it mildly. "Who" is usually an important question only when we are looking for someone to sanction. A law or administrative action is usually thought to violate the Constitution in the sense that a glitchful application program causes an operating system to crash: the new set of instructions is incompatible with the larger system in which has to operate if it is to work at all.

The article is more interesting than this conceptual non-starter, however. The fact is that the Constitution sometimes names particular persons or bodies as agents that may do this or that are forbidden to do that. This the Commerce Clause gives Congress, and not the president, the power to regulate interstate commerce; in the Religion Clauses, Congress is forbidden to pass laws regarding an establishment of religion or to interfere with its free exercise. Similarly, the president is given the power to do thing by some clauses, and the states are forbidden or ordered to do thing by others. The author is suggesting that many problems would go away if we just read what the text actually says.

Let's see what the author is really talking about:

If Congress violated the Constitution, it must be that moment of violation occurred when Congress made the law…The legislators who made the law at issue may have long since retired, or passed away. It makes no sense to say that they violated their oaths and violated the Constitution at the moment of enforcement, from their beds, or their graves. Nor does it make any sense to say that the new Congress, as constituted at the moment of enforcement, somehow violated their oaths and violated the Constitution, even though these new congressmen had nothing to do with either the enactment or the enforcement. It must be, then, that if Congress violated the Constitution, then it did so at the moment when it made the law.

Again, Congress could sit every morning working corruption of blood, and passing bills of attainder, and quartering troops in time of peace in people's homes, and the president could spend every afternoon in the Rose Garden signing these outrages into law to the squealing glee of a subservient press corps, and yet none of the officials involved would have done anything to make themselves criminally or civilly liable, or even subject to impeachment. (How do you impeach a president for signing a law?) By "violate" the Constitution, the author really means misinterpret:

Congressmen are "bound by Oath or Affirmation[] to support th[e] Constitution,"[citation omitted] and they have an independent obligation to assess the constitutionality of their actions.

This has a fine Jacksonian ring, though the point is oddly missing from this article. In Andrew Jackson's model of judicial review, each branch of government has an independent power to interpret the Constitution with regard to its own actions, and no branch, not even the judiciary, has final say about the constitutionality of the behavior of another branch. The Stanford article is by no means so radical: the judiciary retains its supremacy regarding statutory review. However, when the courts exercise that review, this article says, they must view it in the light that a member or Congress had at the time he voted on the law. So, if a statute on its face does not violate some feature of the Constitution, the statute is constitutional. It is no part of the review process for the courts to examine the facts of how the statute has been applied, much less to speculate about how it might be applied. It does not matter what the president did in applying the law, only what Congress said in the law.

The courts generally prefer to strike down statutes "as applied": that is, in the way the law has been applied in a particular case. That leaves the law on the books, but with a bit of precedent for lawyers and prosecutors to maneuver around. The courts are much more reluctant to strike down a law "facially," to say that the law on its face violates the Constitution, because that involves second-guessing the elected representatives of the people by taking a law off the books. The theory in "The Subjects of the Constitution" would make "as applied" challenges to statutes almost impossible; the courts could not finesse a constitutional defect by disallowing a law just in some circumstances. On the other hand, it would also become more difficult for the courts to strike down a law in its entirety.

As the author freely admits, his model would make most constitutional problems go away through the use or avoidance of "magic words." The Constitution gives Congress the power to regulate interstate commerce. As long as a statute refers to goods or services moving in interstate commerce, the statute is constitutional, no matter the local effects of the national regulation. Similarly, if a statue does not mention religious activities or institutions, a statute is immune from challenge even if the statute would obviously affect those things. Most remarkably of all, perhaps: the president would be unable to violate the Religion Clauses of the First Amendment because they restrict only Congress. President Obama could issue a proclamation declaring himself the 12th Imam while remaining in punctilious compliance with the requirements of the Constitution.

Again, this constitutional theory is not quite that of Andrew Jackson, but it would have much the same effect as Jackson's model. Let us see what wonders await us in the next installment.