Saturday, September 3, 2016

Problems with the Constitution, Real and Imagined

The argument that the Framers of the United States Constitution were not perfect—while obvious because no one, after all, is perfect—is nevertheless worth discussing because I believe that there are right reasons and wrong reasons to criticize the project we call the United States under its unique Constitution. The United States is, indeed, unique and even exceptional in that there are few examples in history of a group of people coming together to consciously create a new country, deliberately attempting to construct a government that balances the authority of the national government with the rights of the constituent states and the people as a body of free individuals, trying to keep each from lording it over the others.

One of the arguments you often hear about why the United States Constitution is supposedly out-dated, is that the Founding Fathers lived in the eighteenth century and therefore knew nothing about the technology, geography or the politics of twenty-first century America. In this, the Founders are a bit like the father whose seventeen-year-old son thinks he is a know-nothing idiot, but by the time the son is thirty, he realizes that his father knew what he was talking about all along. (“Between the time I was 15 and 25, my dad got a lot smarter.”)

For example, did the Framers of the Constitution realize how big the United States was going to be? Well, it was Thomas Jefferson, a member of the founding generation, who made the Louisiana Purchase in 1804, thereby more than doubling the size of the United States, and, even before that purchase, many members of the founding generation expected the United States to grow larger. In the Federalist Papers, for example, Alexander Hamilton mentions the possibility of the country increasing in size when he observes that the United States was already too big for the kind of smallish government that many critics of the Constitution said they would prefer. (It is true, though, that Jefferson underestimated how quickly the land added by the Louisiana Purchase would be settled. He guessed two hundred years, but it was settled in less than one hundred.)

Another argument is that the Founders did not anticipate the changes in technology, especially in communications, industrial technology, and machinery (including weaponry). While it is true that they did not know what kind of technology we would have, they were men who lived in an era when many technological innovations were being made. There were new industrial processes being introduced, hot air balloons were making aviation at least remotely imaginable, and let us not forget that one of the leading Founders, Benjamin Franklin, discovered that lightning and electricity are the same thing and posited that electricity might somehow be controlled.

In the word “communications,” let us include both what we mean by it and what they meant. We mean systems for sending information, but they more often meant transportation when they used the word. They understood from history that roads and waterways are necessary to keep a large country connected. In establishing the United States Patent Office, the Founders understood that innovations would come in many different areas. They did not know what these new things were going to look like, but they expected that there would be new technology, and they did not see why these innovations would in any way make the Constitution obsolete.

It is the fact that subsequent generations have tried to treat new technology as if it were outside of the Constitution, when there is no reason for thinking so, that makes us look like fools and the Founders wise. For example, with the rise of electronic media such as radio and television, the United States government decided that just because these media were not mentioned in the Constitution, the government should be free to treat and regulate them in ways that the Constitution explicitly forbids the government to treat the printing press. This created a contradiction in the ways that broadcast station owners and newspaper publishers have been treated. They are treated similarly in some matters but differently in others. Journalists in both mediums supposedly have the same right of free speech, yet radio stations, but not newspapers, are licensed by the same government they report on and therefore can be intimidated by.

Part of the trouble comes from the legal conceit that the airwaves belong to the people. This doctrine is pernicious because, 1) all means that are theoretically owned by all of the people are never actually controlled by them; they are controlled by those who wield political power, and 2) not only do the people not own all of the airwaves in any meaningful sense, but neither do broadcasters. They can only lay claim to a specified number of narrow spots on the bandwidth. Thus, it might be more intelligent of us to assume that while the First Amendment to the Constitution mentions only the printing press, in principle it should be understood to cover electronic communications. If the Founders had known about them, they would have included them in the First Amendment.

An argument against the absolute language of the Second Amendment to the Constitution has been made on the grounds that the Framers had no idea of what the future was going to bring to the particular technology of weapons manufacture. This is demonstrably wrong when you look at the changes that were going on in firearms technology in the late 1700s. Franklin and Jefferson*, in particular, but other well-informed Founders, as well, knew that inventors were experimenting with new technology in weapons including multi-shot rifles and pistols. Widespread use of these new firearms was not yet feasible, but the Framers were aware of them and yet did not make exceptions of them. The right to bear arms was regarded as absolute. (Cannons were certainly widespread in 1787, and yet they were not prohibited. That fact alone speaks volumes.)

A related issue with regard to the Second Amendment is the change in the meaning of both the institutions and words in the Second Amendment. It reads, in whole, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Now, what does “regulated” mean, and what did the Founders understand the word “militia” to mean? In Samuel Johnson’s "A Dictionary of the English Language"—first published shortly before the American Revolution and still in print in 1791 when the Second Amendment was ratified—one of the definitions given for the word “discipline” is “military regulation.” So a “well regulated militia” was one that was disciplined, that practiced maneuvers (marching and close order drill, for example) and target shooting. “Regulation” did not yet mean "restricted by government laws or rules." That meaning of “regulated” was only developed much later and mainly in the twentieth century.

What did “militia” mean to the Founders? Everyone in the Founding generation understood the militia to be the army of the state, loyal mainly to the individual state and not to the federal government, even though the Constitution provided for the requisition by the federal government of the militias in cases of national emergency. The critics of the Constitution (called anti-federalists) argued that under this subordinating relationship of the militias to the federal military, the militias would someday become nothing more than National Guards, mere adjuncts to the federal military rather than armies available to the states in case the federal government ever tried to seize power from the states. At the time, the Federalist Papers pooh-poohed this notion as alarmist and preposterous, but, of course, the critics were exactly right. (Alexander Hamilton and James Madison were more right than their critics were about things such as the anticipated increase in the size of the United States, but their critics were almost uncanny in their rightness about some other things.)

The idea that the rebellion of the states against the federal government might be legitimate under the United States Constitution seems shocking to us now, but what should be shocking to modern readers of the Federalist Papers is how the advocates of the Constitution casually suggest this course of action as a deterrent to overreach by the federal government. It is rarely mentioned that a likely reason for our different feelings about the subject nowadays has to do with the American Civil War as an enactment of the rebellion posited by Hamilton and Madison.

What Publius (the nom de plume adopted by both Hamilton and Madison in the Federalist Papers) has in mind is a situation in which the federal government (or “general government” as the Founders tended to call it) arbitrarily usurps the sovereignty of one or more states, and the states react to this by fighting back militarily. Publius further assumes that if this occurred, then all of the states would see that if the general government could do whatever it was doing to one or two states, it could do it to any or all of them, and, therefore, all of the states would join such a rebellion and collectively put the general government back in its place.

When the Civil War occurred and there was an actual rebellion by some states against the federal government, the issue turned out to be the dubious one of the right to own slaves, which less than half the states supported and more than half were against. Far from there being any recognition by all of the states that the slave states had a legitimate cause for rebellion, instead, a majority held the opinion that the slave states made their stand for sovereignty on illegitimate grounds. Consequently, the conflict became a hybrid of the two situations anticipated by the Founders: while the Confederate states raised their militias to rebel against the federal government, the federal government requisitioned militias from the remaining states to side with the federal military against the rebels.

Ever since the Civil War, the ideas of secession and armed rebellion by states against the central government have not been looked upon so liberally (not to say even as glibly) as they were by the Framers of the Constitution. Of course, we are lucky in our ability to look back on the Framers with the insights gleaned from intervening history. I am reminded of the argument that Publius makes against the anti-federalist critics of the Constitution who opposed the strong mechanism for national defense found in the Constitution. They preferred to just wait until there was a crisis and then appoint a temporary dictator. Why have mechanisms built into the Constitution for a muscular government with centralized authority over not only foreign policy but military might? Why should the United States keep a standing army in peace time? Why should the general government have broad taxation powers and unspecified powers to do whatever is necessary in the event of an international crisis? The Framers countered this argument: an ad hoc non-plan to appoint a temporary dictator during emergencies was too feckless to give America the confidence or her enemies the warning that we could be prepared for any crisis. (The wisdom of Publius’ argument here may be nevertheless questioned. After all, there are few mechanisms in the Constitution for quickly countering too unlimited power once it is granted to the general government and abused.)

By the same token, Publius’ argument that we should not be concerned that the general government might overwhelm the states and usurp their sovereignty, just because the states can, as a last resort, rebel against the general government militarily, is as feckless a non-plan as saying, oh, well, in a crisis, the states can collectively appoint a temporary dictator to see us through a crisis. Planning for military rebellion by the states as a way of reining in an over-weaning general government is no plan at all, and it is just as much an invitation to chaos as the anti-federalist suggestion of a temporary dictator.

The place where the Constitution of the United States is properly described as flawed is in its assumption that the strength of the states over the general government that existed at the beginning is permanent. The states were very strong at the time of the ratification of the Constitution, but their power gradually waned while the power and authority of the general or federal government increased. There are not enough measures in the Constitution to trigger nonviolent resistance by the states against usurpation by the federal government. Where there are such measures in the Constitution, there are insufficient mechanisms to animate them. Precisely those measures in support of state sovereignty that do exist have been undermined by those who have championed the centralizing of federal power over the states.

There are two approaches that have been adopted to undermine the few constitutional measures that support state sovereignty. One is the outright repeal of the measures, and the other is the non-enforcement and disuse of them. In the former case, the best example is the Seventeenth Amendment which changed the original constitutional method of electing United States senators. Originally, senators were supposed to represent the state governments, not the electorate of each state. Senators were elected by the state legislatures and, in some cases, were creatures of the legislatures, which could replace them when their terms expired—if not sooner—if a majority of state legislators felt that the senator was not acting in the interest of the state. Several years ago, the young man who was my representative in Congress expressed perplexity that anyone would think that it is not preferable for senators to being popularly elected. It is more democratic, is it not? I wanted to tell him that, when I was his age, I believed the same thing.

What changed for me was my understanding of the necessity for the states to be represented in the nation’s capital. The people are already represented by the House of Representatives. Popular election of senators makes them into super-representatives, redundant precisely because they are elected in too similar a way to the representatives. (One hundred years ago, one spurious argument made in favor of the change to popular election of senators was that senators were corrupt and that, somehow, this would be remedied through popular election; this did not work because senators seem to be just as corrupt, if not more so, since their popular election; for one thing, they are more susceptible to pressures from interests outside their states than they were before they were popularly elected.)

There are also many examples of disuse of constitutional protections of the states. Two examples are the Tenth Amendment and Article Five from the body of the Constitution. The Tenth Amendment upholds the sovereignty of the states by affirming that any power that is not assigned to the general government by the Constitution is and should be understood to be retained by the states or the people. This amendment was intended to prevent the general or federal government from taking power away from the states in matters that should properly be taken care of locally. The Supreme Court of the United States has never cited the Tenth Amendment in any case. This disuse has rendered the amendment meaningless and allowed the federal government to take over education, healthcare and many other areas that are not explicitly given over to the national government by the Constitution.

One of the ingenious ideas the Founders put into the Constitution is to have legitimate ways to change the Constitution when experience shows the people of the United States that the Constitution can be improved upon. There are two ways that amendments can be made according to Article Five of the Constitution. One is for two-thirds of Congress to propose amendments, vote them up or down, and, if approved (by Congress because the president has no authority to veto amendments beyond a non-binding endorsement or opposition), have them ratified (finally approved) by three-fourths of the states. 

The other way to make amendments to the Constitution is for two-thirds of the states to propose amendments and submit them to all of the states for ratification by a three-fourths majority of states. This method was explicitly mentioned and promoted in the Federalist Papers as a legitimate way that the states could propose amendments to the Constitution instead of waiting for Congress to propose amendments that might not be in the personal interest of the members of Congress. For example, many Americans have thought for a great many years that there ought to be term limits for congressmen. This, however, is not in the interest of congressmen themselves, so we will probably never see such limits if this amendment is left to the first method. Unfortunately, the method by which the states propose amendments has never been used, although there have been a couple of instances where its use was seriously contemplated in order to address specific issues.

If the power relationship between the state and federal governments is a problem found in the original Constitution (although, as we have seen, it is not the Constitution’s fault that some remedies constitutionally available to the states have not been used), the general problem is that the national government has tended toward what could be called “mission creep” whereby any robust institution or organization will always seek ways to increase its power and authority in ways it was not originally intended or even authorized to do. While the Framers of the Constitution were quite clever in separating the government into three branches, the legislative, executive and judiciary—each of which is supposed to be jealous of its power and of the other branches—it did not take long for the people in each branch to realize that by helping to enhance the general power and authority of another branch—far from diminishing their own power—they would help ALL branches to increase their power in tandem.

Power is not a scarce and finite resource to be divided among the separate branches when it can rather be expanded for all of them. The judiciary, for example, can feel encouraged to expand the power of the legislative or the executive because this expanded power will eventually give the judiciary more power to rule on the proper use of the new powers it has allowed the other branches. I call this ratcheting up the power of the government.

There are, of course, problems with the original Constitution that are widely recognized and agreed upon as problems by both sides of the aisle. The Framers of the Constitution labored over the question of slavery. Their inability to find a solution that did not contain the seeds of divisiveness is a problem that still plagues us to this day. The myth that the words of the Declaration of Independence, “all men are created equal,” were not seen by the Founders as problematic in light of the existence of slavery in America, is simply false; how else do you explain the fact that all of the northern states took steps to end slavery in their jurisdictions during or immediately after the American Revolution? Even South Carolina voted on a measure to end slavery. (It did not pass as similar measures did in the northern states.)

Contrary to the picture of complacent acceptance of slavery by the Framers, they actually tried to limit it as much as possible. The debate over the famous three-fifths of a man clause was contentious and painful at the time to the same degree that it has been subsequently misunderstood. I have often reflected upon how lacking in curiosity I must have been for so long—and how incurious so many people remain—not to wonder how the Framers came up with such an odd fraction as three-fifths. Understanding the reason for this particular fraction turns the prejudice about its origin on its head:

The three-fifths clause appears in Article One of the Constitution under the topic of the election of members of the House of Representatives. In order to have a scientific basis for assigning congressional districts based on population, the Constitution included a census of the entire nation to determine how many people were in each state and how many representatives each state would be entitled to have in Congress. A difficulty arose when considering how this calculation would be made in states where there was slavery versus states where there was no slavery. It was the delegates from the slave states who wanted slaves to be counted as whole persons, so that the slave states could have as many congressmen as possible; it was the free states that would have preferred that slaves not be counted at all. Congressmen from slave states were asking to be allowed to represent people who they would not allow to vote. This was hypocrisy, but the delegates from the free states came to see that it would do no good to point that out. The slave states were so adamant in their position that not to make some compromise would have ended the United States soon after it began. So a horse trade was made. I do not think we know how it went, but one can imagine that it went something like this:

Slave States: We want to count slaves as whole persons for purposes of the census.

Free States: But that isn’t fair. You want to pretend to represent people you won’t allow to vote. While congressmen in free states will have to canvas all the men they represent and fight for every vote, congressmen in slave states will be able to focus on the few men who are eligible to vote while getting considerable power from the numbers of men who are taken for granted because they don’t have any vote. We say your slaves should not be counted at all unless you are willing to give them the vote.

Slave States: That isn’t going to happen, but suppose we count the slaves as whole persons just as we said.

Free States: Seeing as you are so set on counting people who can’t vote, how about, as a compromise, we count each slave as one eighth of a person for purposes of the census. That way, you get some of the power you want but not such an unfair amount.

Slave States: One eighth is too small. How about seven eighths?

Free States: How about one quarter?

Slave States: No, make that three quarters.

Free States: How about one half?

Slave States: How about two thirds?

Free States (or whichever side came up with the final fraction): How about three fifths?

The point is that it was not some gratuitous insult that the slaves were represented as fractions for purposes of the federal census, and, more significantly, it was the slaveholders who were perfectly happy to count slaves as whole persons just so that they could have more power without having to worry about whether these enumerated constituents would vote for them.

*Thomas Jefferson, of course, was not a the Constitutional Convention in 1787. He was serving as Ambassador to France.

The Federalist Papers, various editions.
"The Great Debate," a series of lectures by Prof. Thomas L. Pangle on the history of the ratification of the United States Constitution, published by Great Courses/ The Teaching Company.

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