Why the Student Constitution Is Invalid
This year’s student election ballots will ask you to ratify an amendment to the constitution. As you cast your vote, keep in mind that the constitution, and as a result, any amendment to it, is invalid.
The student constitution of the Wilf Campus is invalid for three reasons.
First, we have no official record of its ratification. A constitution is valid only if it is accepted by the people it’s supposed to bind. Did a majority of the student body vote to accept the constitution? There’s no way to know.
As far as we know, it could be that some years ago, three assorted student council buffs seeking to pad their pre-law resumes and parcel out political power to their favorite rising seniors sat down in the old basement lounge of Morgenstern and concocted the document that is supposed to be binding on all male undergraduate students of Yeshiva University for all of posterity. After they saved their work as a PDF, they may have laughed about how they pulled the wool over their schoolmates’ eyes as they made the quick but always suspicious walk from that musty lounge to the beit midrash for a late maariv. We don’t know any different and have little reason to assume any better.
We could just ask the framers, right? Well, we could, and probably would, if we knew who the framers were, but alas, the constitution is anonymous. It is not signed by anyone. There’s no “in witness thereof,” and needless to say, there is no secretary’s signature affirming ratification.
Imagine you walk into the new apartment you just leased. The smell of freshly plastered drywall fills your nostrils. You notice a piece of paper on a windowsill titled, “Constitution of Apartment 2B.” Even if your new home was indeed Apartment 2B (which would be particularly convenient in a walkup), you would not be bound by the provisions of that constitution. If Article One said you were president of the kitchen, you still would not be president of the kitchen. (Looks like you’ll have to rocks-papers-scissors it for the top shelf of the fridge after all.) We, the student electorate, have practically walked into an empty apartment and found a constitution – one that curtails our political agency (for example, we aren’t all presidents of the student council) and that of our elected government (for example, the president cannot just ban clubs unilaterally). And we have no reason to believe that we are bound by this document.
The scenario would be completely different if we knew that the constitution was indeed ratified. To refer again to our residential analogy: if you take a spot in an apartment that already has three other roommates who’ve been living there for a while, and they tell you that they all agreed that the papers on the windowsill are the apartment’s foundational document, then so it is. If Article Two says the newest roommate is the vice president of waste management, you’ll be taking out the trash for a while. This is more or less why we are still bound by the United States Constitution hundreds of years after its ratification, and this is how we would be bound to a student constitution whose ratification was on record.
But let’s suppose for a moment that we did in fact have official record of ratification. The constitution would still be invalid - if not in whole, then definitely in part. This is because of the second set of constitutional problems: jurisdiction.
The constitution grants powers it has no right to grant and imposes obligations it has no business imposing. Below are a few examples. They quote from the words of the constitution and may get a little technical, but they make the point that the document reaches far beyond where it can legitimately go.
An example of a constitutional power that the constitution claims to offer but cannot is subpoena. According to the constitution, there is a student court in which students can bring claims against other students. For any court to hear a claim against a party – think a defendant – the court has to be able to compel that party to appear before the judges. Government courts do this by subpoena, whereby they force an accused person to show up in court under the penalty of law. The Wilf Campus undergraduate constitution gives the student court the power of subpoena under Article XI, Section 2, (2): “The Student Court shall have the power to enforce its subpoenas by means of disciplinary action against those who fail to appear.” The problem with this provision is that disciplinary action (think academic probation) can be taken against a student only by the administration of the university. Earlier this year, Dr. Chaim Nissel, University Dean of Students and a member of the disciplinary committee, confirmed this explicitly to Chief Justice Yossi Hoffman and myself, the Justice Pro Tempore, both of the student court.
This means that if you thought that an elected student leader was abusing his power or neglecting his duties, and you wanted to pursue student-legal means to get him to correct his ways, he could just decline to appear in court and there would be nothing you or the judges could do. Your claim would amount to nothing and the official would continue with his corruption.
“Simply put, the most invalidating issue of our student government’s foundational document is that it is ignored and violated by student leaders.”
An example of obligations the constitution has no business imposing can be found in Article VIII, Section 1, (6): “The YSU President may sit in on all meetings of the Governing Board of The Commentator.” It is a somewhat trivial truth that he may, but this fact is up to the discretion of the editors of The Commentator. If they choose to exclude the YSU president, that is their prerogative, and no student constitution can compel them otherwise. Although many of its readers, most of its writers, and all of its editors study at YU, the paper is independent – it does not take a penny from the student council and is not bound by the student council constitution.
To put things in terms of off-campus housing, imagine that 2B’s constitution said that you could charge your upstairs neighbors a noise fee for their late-night raves. Such a law would be pretty much meaningless; don’t count on paying your wifi bill with that extra income. Your sleepless Saturday nights will remain uncompensated.
A related problem that is not as severe from a constitutional perspective but may point to more serious attitudinal problems is the sloppy writing. Perhaps one example will suffice: the title page purports to introduce the “Constitution of the Yeshiva University Undergraduate Student Government,” and the body of the document does at least try to construct a government for the male undergraduates. Nowhere, however, does it discuss the Yeshiva University undergraduate student government for females. Presumably, the framers forgot to put the word male on the title page, but such a glaring omission makes us wonder what else the framers forgot.
(Did they forget to constitute a student senate? Article II, Section 10 (1) and (2) restrict student senators from serving on the General Assembly. In previous constitutions, there was a student senate, but this document does not establish that organ of the student government. Maybe they had high hopes for YU students and thought a polisci major would unseat Chuck Schumer in the United States Senate while still enrolled as an undergraduate. Good thing the framers made sure to keep the feds out of our student government!)
These are examples of the constitution overreaching, each of which show that there are chunks of the document that are invalid.
But let us continue our magnanimity and pretend for a moment that we have official record of ratification, and that we can ignore the invalid parts and keep the functional ones. There is still a third, and perhaps most serious, invalidating issue with the constitution.
Simply put, the most invalidating issue of our student government’s foundational document is that it is ignored and violated by student leaders.
The most recurring instance of student leaders ignoring the constitution is the fact that the meetings of the general assembly (a collection of certain elected officials) are not open. Article IV, Section 1, (3), mandates that “all meetings of the General Assembly shall be open meetings” except in certain particular circumstances. At open meetings, “all students may participate in debate upon recognition by the YSU President.”
When was the last time you participated in debate at a meeting of the General Assembly? When was the last time you even heard there was a meeting of the General Assembly? I suspect the answer to both questions is never. Perhaps there are General Assembly meetings, and perhaps they are officially open. But the fact that the time and location of the meetings is not publicized makes them effectively closed. (If I had to guess, they occur around 10:23 pm on a Whastapp group chat.)
The secrecy is no trivial matter. Transparency in student government is unquestionably important. Even asking for a rundown of the student council budgets required cutting through red tape, and concrete dollar amounts still have not been publicized. This means that the student activity fee that you pay – $150 per year – is distributed, if at all, in a way that you’ll never know.
One more example of constitutional disregard: the student court has no records, despite being obligated to maintain records in various passages of the constitution. This absence of judicial records could very possibly be because it has never heard a case; but even caseless terms must have a non-trial meeting under Article XI, Section 4, (1). Either way, there is no record of any court proceedings.
In sum, things look pretty bleak for the student constitution of the Wilf Campus. I can understand why you may vote to ratify or reject the proposed amendments anyway – in the end of the day, the winners of the election will think, mistakenly, that they are in power by virtue of an invalid constitution, and they may actually effect changes, for better or worse, in our undergraduate experience. Insistent idealism be damned; there are Chanukahfests and Yoms to attend.
You might, however, recognize the fear that power invalidly constituted turns quickly into power invalidly wielded against the less powerful. The recorded ratification of a legitimate constitution would be the first step in a direction away from the abuse of an elected position. In the meantime, as I abstain on principle from the election this May, I will hope that the lessons of the second floor apartment are internalized by next year’s unconstitutionally elected residents of the second floor of Morgenstern.