Tony, my 6-year-old, is minding his business, paging through an encyclopedia of Pokemon characters when Patrice, my 4-year-old, caroms in from God knows where, launches himself into the air and lands, with a thud, on his brother’s back. “Hi-YA!” he exclaims like an eighties movie ninja.
“You idiot!” screams Tony as he stands up and shoves Patrice to the ground. The younger boy starts crying. It’s pathetic and sad and I have to step in. I forcibly put Tony in time-out (‘But he jumped on me first!”) and speak sternly to Patrice, who is still in tears. All three of us want to cry; two of us are crying.
I can’t help but think that there must be a better way to do this.
So much of the problem with parenting is that it feels ad hoc. Even as I enforce a punishment, I often find myself grappling with the fact that it is unjust or arbitrary or even mean-spirited. Wouldn’t it be great if there was some sort of system by which one could adjudicate these disputes in a somewhat less arbitrary manner, some sort of document designed to keep the anarchy at bay? I know I’m not the first person to have this thought. Charlemagne had this thought. Thomas Jefferson had this thought.
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I need a constitution up in here.
Family constitutions already exist, but you can’t just Mad Lib what I need. Most familial founding documents are created for very wealthy families for whom asset management is an issue or for very religious families, whose constitutions more closely resemble covenants with the Man Upstairs. But I have neither assets nor faith. What I’m looking for is a document that lays out a set of principles and rights and outlines a system of governance complete with areas of responsibility and powers invested. You know, a We the People-type jobby. But where to start, with ours?
The United States is – or was rumored to be at one point – a democracy, but my family is, despite the protestations of my children, not. It also isn’t an absolute monarchy. It would be difficult to depose me from my role as father, but I’m also duty-bound to my children and need to be responsive to their needs if not to their demands. To find out how to find a happy constitutional medium should I want to author something – or just get some perspective – I called up Zachary Elkins, a professor of government at UT Austin and father of three sons (12, 10 and 8) . Elkins is the co-creator of the Comparative Constitutions Project, a National Science Foundation-funded initiative designed to help scholars “understand the causes and consequences of constitutional choices.” And Elkins knows from world governments. He was born in Bogotá, Colombia, grew up in Bronxville, NY, and lived for a while in Barcelona, where he played professional basketball after graduating Yale. He’s a smart, tall person who spends his time thinking about the ways in which rules can inform culture and politics.
When I pose the question to him – ‘What sort of government do I run?’ – he pauses. “Perhaps, some sort of semi-authoritarian government with a set of rights but a strong executive, no legislative and no judiciary….” he says, mulling. Then he lands on something. “Saudi Arabia starts to feel about right.” Elkins notes that citizens in Saudi Arabia, like children in a household, often rely on the oil-rich government’s Citizens Account to meet their needs and that, though the monarchy is vaguely responsive to their entreaties, it’s quite top-down. This feels like a fair critique of my parenting style.
Seeking a second opinion, I called up Zach’s friend, Tom Ginsburg, the Leo Spitz Professor of International Law, and Professor of Political Science at the University of Chicago School of Law. Tom’s a cool dude. He’s written books like Constitutions in Authoritarian Regimes (2014), co-directs the Comparative Constitutions Project with Zach, served as a legal adviser at the Iran-US Claims Tribunal, The Hague, Netherlands, and has two grown children. Tom was like, “Zach said that? Naaaah. What the hell does the House of Saud do for its people?” Tom suggests Singapore. “It’s a very paternalistic society,” he says, “but at least provides what we call ‘public goods’ for their citizens.”
He points that that Singapore’s Constitution, like China’s, incorporates the Confucian notion of governance in which the principle unit is the family. “It sees us not as individuals but as embedded in our societies.,” he explains, “And the family is the most important set of relationships.” Of course, there’s a whole lot of caning that goes on in Singapore as well as mandatory death sentences, things I try to avoid in my family, but Tom, to a degree, puts this in perspective. “The punishments are harsh because when you harm someone else, you aren’t just harming them but you are putting everyone in danger. The harmony of the society has to be protected.” That applies, and is perhaps distilled, within a family unit. And, as Tom notes, “Confucius himself thought everyone should be rehabilitated. He was against the death penalty.”
Regardless of the form of government a constitution describes, what Tom and Zach agree on is that such documents must fulfill a few criteria. “Think of constitutions like you would any other contract,” says Zach, “They must be intelligible and clear and it must be internally consistent.” Saudi Arabia’s founding document, he says, is internally consistent. Iraq‘s isn’t. “In the preamble,” he says, “democracy is a basic principle but in the second article says the national religion is Islam and nothing can threaten it .” That tension, he says, comes from having to cobble together warring factions.
But when it comes to families, he says, “If the parents have power of punishment,” says Elkins, “they also must have the power to adjudicate what can be punished.” And process is important, in crafting a nation’s constitution as well as a family’s. “What we found,” he explains, “is if the process of creating the Constitution was participatory and open, it lasted longer. The document was bestowed with more validity.”
I contemplated donning a pair of breeches and writing a family constitution. But what I came to realize is that this would only partially solve the problem. Yes, founding documents clearly articulate values and rights, allowing governments and the governed to move in the same direction. But it’s the application of law that is the most critical thing. Plenty of failed states have worthy constitutions. As any parent knows, flawless conception can still lead to issues down the road if they are not well executed.
Even if I wrote a constitution and tacked on a bill of rights, I realized I would need a criminal justice system. Tom recommended starting at the beginning. “What is the purpose of the criminal justice system?” he asked rhetorically before supplying a very thorough answer. The first is as a deterrent, either for that individual or for the society, which is called general deterrence. The second is rehabilitation. The third is isolation from society and the fourth is revenge. “The apply differently in parenting,” he says, “Most discipline falls under individual deterrent. If you have several children, however, it could be general deterrence. Rehabilitation is a noble ideal we should hold in parenting. Isolation has little application, except in the case of time-out. And revenge should have no application.”
Perhaps even more important than the purpose of punishment, says Tom, is the application of it. That is to say, the rule of law can become the cornerstone of a functioning society. “What does the rule of law require?” asks Tom, professorially, “It requires that the rules be laid out in advance; that punishments be specified in advance, that they be applied consistently and that there be some process for making your case before the punishment.”
Ah, consistency, that old chestnut.
Take the case of my son’s provoked outburst, for instance. I must admit, from the standpoint of rule of law, I handled the situation poorly. There have been instances, in the recent past, when Tony has gone unpunished for responding to his brother’s provocation. There have been times when only Patrice, the belligerent, has been punished, others when I thought Tony’s response was itself sufficient punishment and times when no one has gone punished. The actual punishment itself has taken the form of time-out but also in the confiscation of beloved objects (Pokemon and Yu-Gi-Oh card, mostly) or sacrificed screen time. I have been uneven in the application of the law, unclear on the statute itself and arbitrary on the sentences imposed. It is no wonder I live with two anarchists.
Right now, I’m working on a penal code. Soon, I hope, I’ll gather the children for a family meeting. I’ll lay out the basic rules. I’ll lay out a process by which they can present their case. I’ll present a slate of punishments, along with minimum sentencing requirements and judicial discretion. Next time Tony decks his brother, it’ll be better and I won’t lose my shit because I will not be allowed, under my own laws, to do so. And my sons, for their part, will accept their punishment with the glum equanimity which accompanies the rule of law. Well, I hope that’s how it goes. I hope that strong institutions will temper my own despotic impulses and blunt the personal injury felt by my miscreant children. But Tom cautions that it isn’t that simple. “As we can see now, you can have the best systems in place but government comes down to having good people in charge,” he says. “It’s true in Washington and it’s true in the family as well.”