One Constitution, Under Siege

“You say you'll change the Constitution
Well, you know
We all want to change your head” – The Beatles

British statesman Edmund Burke once eruditely wrote, “Constitute government how you please, infinitely the greater part of it must depend upon the exercise of the powers which are left at large to the prudence and uprightness of ministers of state.” Great Britain, with no document serving as an official constitution, was nevertheless the freest and most stable of the great powers in the world for many years, until the founding the United States of America, 235 years ago today. The constitution of Nigeria is one the closet to ours, word for word; Nigeria could almost be considered a dictatorship. To maintain a free and prosperous society requires not simply the existence of a piece of paper declaring the intentions of those constituting government, but the vigilance of those who understand the importance of ideas behind it. Standing in opposition to constitutional government are the statists, who consider constitutionalism to be an impediment to government’s ability to make the world the way it should be.

On June 23rd, Time magazine’s managing editor Richard Stengel wrote an illustrative article entitled ‘One Document, Under Siege.’ Understanding the worldview of a statist like Stengel is imperative to the perpetuation of the constitutional system he neither cares for nor understands, so I will highlight key points in his article and expose the fallacies and the ignorance of America’s founding ideas.

Stengel opens with this: “Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.”

With all of these examples of changes since the founding, in what way does Stengel believe the government would be different than now, had the founders been gifted with clairvoyance. Would we have excluded certain rights from the Bill of Rights so that Roosevelt could have rounded up innocent Japanese-Americans legally? Would they have left out the part in the Declaration about all men being created equal, if they had known about DNA and genetics? Would they have even founded the country if they had known Lady Gaga would be born here? (Actually, they may not have…)

Stengel simply introduces a red herring here. No one contends that the founders were omniscient gods. It was precisely because they realized that no human beings have this kind of knowledge and understand that they created a government meant to stay out of these kinds of things for the most part. To illustrate the point, only one (maybe two) of the things Stengel listed could be said to have been created by government. How’s Medicare working out? Oh, yeah, it’s trillions of dollars in the red…

Stengel goes on, “The framers were not gods and were not infallible. (Hey, I just said that!) Yes, they gave us, and the world, a blueprint for the protection of democratic freedoms — freedom of speech, assembly, religion — but they also gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote and that South Dakota should have the same number of Senators as California, which is kind of crazy. And I'm not even going to mention the Electoral College. They did not give us income taxes. Or Prohibition. Those came later.”

Number one: Slaves, not blacks, were counted as three-fifths of a person for the purpose of counting population for representation in the House of Representatives. This was a compromise between the Southern states and the Northern states. The Constitution gave no specific instruction when it came to who would vote – a point to keep in mind for the next paragraph. Knowing that slaves would not be allowed to vote, the Northern states sought to prevent the Southern states from acquiring power in the House that would not represent the slaves who could not vote, but would instead further entrench the institution that many of the Northern states wanted to do away with. The result of the debate over representation was called the three-fifths compromise.

Number two: Again, the Constitution did not give instruction on who could vote. States were left this power. Most states gave the power only to property owners so that those without property would not vote to use government to take the property away. Shortly after, women experienced societal and sometimes legal exclusion from landownership, and that was the reason behind their not being allowed to vote. Using the method of constitutional change left us by the founders, subsequent amendments paved the way to give women the right to vote in 1920.

Number three: Going from a confederation of near-sovereign states to a united nation, many of the states were wary that their power would be usurped by the national government. In particular, the smaller states believed that their interests would not be represented in any congress whose membership was determined by population. The larger states, of course, believed that with more people, they should have a greater say in national policy. Another compromise was born, and we have a bicameral legislation. The number of Electoral College votes is the combination of the number of all senators and representatives from all the states. In both cases, the Senate is a check on the people and the House is a check on the states.

Number four: Income taxes suck and Prohibition was repealed.

“Today's debates represent conflict, not crisis. Conflict is at the core of our politics, and the Constitution is designed to manage it... A crisis is when the Constitution breaks down. We're not in danger of that.”

May I ask a simple question, Mr. Stengel? Just when is it that the Constitution breaks down? Being such a constitutional expert, perhaps he will tell us precisely what is and is not constitutional.

“Nor are we in danger of flipping the Constitution on its head, as some of the Tea Party faithful contend. Their view of the founding documents was pretty well summarized by Texas Congressman Ron Paul back in 2008: "The Constitution was written explicitly for one purpose — to restrain the federal government." Well, not exactly. In fact, the framers did the precise opposite. They strengthened the center and weakened the states. The states had extraordinary power under the Articles of Confederation. Most of them had their own navies and their own currencies. The truth is, the Constitution massively strengthened the central government of the U.S. for the simple reason that it established one where none had existed before.”

By this extraordinary (il)logic, if I add vegetables to my diet, I am now a vegetarian. Creating a federal government is demonstrably not endowing it with unlimited powers. That is a false dichotomy. If it were true that the new federal government was not limited, why the thousands of words in the Constitution? Why not simply say that there is now a national government? Why bother to enumerate powers?
The Constitution was written to describe how the federal government was to be constituted.

“If the Constitution was intended to limit the federal government, it sure doesn't say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the "necessary and proper" clause, which delegates to Congress the power "to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Limited government indeed.”

So much for Stengel drawing a line at which point the Constitution breaks down. The “drumroll” of congressional power is apparently not enough for statists, as they continue to use powers not granted therein. Notably the clause to which Stengel refers does not give Congress the power to do whatever it wants. The laws it passes must be 1) necessary and proper, not whatever Congress feels like, and 2) for the execution of “the foregoing Powers,” not just anything.

Secondly, the Constitution does say that the national government is limited. The Tenth Amendment (part of the Bill of Rights!) reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Federalist Alexander Hamilton did not even think that this prohibition would need to be stated explicitly. In Federalist #84, he wrote, “[B]ills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”

James Madison, the primary author of the Constitution, had this to say in Federalist #45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce…. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern lives, liberties, and properties of the people, and the internal order, improvement and prosperity of the State.”

Unlimited government, indeed.

Stengel throws this in: “Most of all, the framers created a weak Executive because they feared kings. They created checks and balances to neutralize any concentration of power.”

Oh, I guess they wanted to limit what government could do after all…

But then he is back to his old tune: “The framers weren't afraid of a little messiness. Which is another reason we shouldn't be so delicate about changing the Constitution or reinterpreting it. It was written in a spirit of change and revolution and turbulence. It was not written in stone.”

I wonder what Madison would have to say about that. Maybe something like this: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone is it the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shapes and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject… And that the Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of it origin and adoption.”

If the Constitution does not design government in a way that is not alterable arbitrarily, then it is no constitution. If it does not outline the object and function of government, it does not constitute government. To outline the object and function of government is to limit it. A constitutional government is a limited government, by definition.

Anyone who prizes what we have inherited in America needs to combat this kind of ideology that does not trust freedom, and prefers to put its faith in a handful of elites to use the state better than the people as a whole can use their own liberty.

The battle to which Stengel turns a blind eye is waging on many fronts. He goes on his article to discuss four specific issues. Those are topics for me to deal with next time…