Wednesday, May 23, 2018

We Need to Reassert the Declaration Before We 'Rewrite the Constitution'

Apparently confident that their statist philosophy has won the hearts and minds of a majority of the American people, some on the Left are calling for a new Constitutional Convention. On July 4th, 2016, the New Jersey Star-Ledger posted a call to rewrite the Constitution.

When Thomas Jefferson threw off the yoke of political bondage to the King of England in 1776, he did it to assert his right to self-govern.

Clearly, it was not Jefferson's wish that we fossilize the Constitution; he expected us to occasionally revisit our sacred but imperfect manifesto to keep pace with the progress he cherished above all.

Yet here we are, still guided by the same piece of parchment left over from an era of powdered wigs and silk breeches.

So while it seems like sacrilege on this reverent day, it's time to agree with Jefferson that this 4,000-word document could use a makeover.

By now, the reasons should be obvious: If the Constitution is impervious to change, so too is our sclerotic and dysfunctional government. If everything progressed as Jefferson had wished, our system would not be constipated by gridlock, majorities that no longer can rule, and even shutdowns.

So hard though it may be, we need another Constitutional convention.

Campaign finance, drawing voting districts, banning the filibuster? Those would be landslides. Urban dwellers would want to address the representative imbalance in Congress: It is absurd that California would have the same number of Senators as Wyoming, despite having 65 times the population.

I left these comments:

The first thing we have to rewrite is the first sentence of this editorial, to clarify what the term “self-govern” means in American terms.

Jefferson’s first concern as he drafted the Declaration of Independence—of which the signing and adoption by the colonies marked the starting point of the United States of America as an independent political entity—was not self-government; i.e., democracy. His first concern was unalienable individual rights protected equally under the law at all times—Rights being understood to be guarantees to freedom of action in support of our own individual lives, not automatic guarantees to material values that others must be forced to provide; the pursuit, not the guarantee, of happiness. In the American concept, self-govern means the individual’s right to govern his own life and affairs while respecting the same rights of others. It does not mean choosing a government to rule our lives, democratic or otherwise. America was never about ballot box mob rule of others’ lives, but individual self-rule.

Before we “rewrite” anything, we need to rediscover the Declaration of Independence, which is the philosophic blueprint for the constitution. As Jefferson full well understood when he wrote it, rights come before government. “To secure these rights, governments are instituted among men.” Our rights as individuals to govern our own lives are beyond the scope of government to limit or violate, so long as we as individuals do not violate the same rights of others.

Having understood that, we can proceed, because the constitution does need work—to restore those principles. I have many suggestions. But here are my top two:

First, I’d add an education clause to the First Amendment: “Congress shall make no law respecting an establishment of education, or prohibiting the free exercise thereof.” The First Amendment is not a hodgepodge thrown together by chance of convenience. It is an integrated statement ensuring intellectual freedom. The separation of education and state certainly belongs there.

Second, I’d clarify the Commerce Clause—"Congress shall have power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."—by adding “but neither Congress nor the States shall make any law that abridges the freedom of production, contract, and trade. The term ‘to regulate’ shall not be construed to authorize the violation of these rights.”

There are plenty more fixes needed to restore the principles upon which America was Founded. But we need to reaffirm those principles first. Otherwise, we might as well reinstate the King of England, and all become subjects again. As our Founders understood, “we didn’t trade one tyrant 3000 miles away for 3000 tyrants one mile away. An elected legislature can trample a man’s rights as easily as a king can.” John Adams said; “It is … as necessary to defend an individual against the majority in a democracy as against the king in a monarchy.”

The Declaration can never be “fossilized.” Those principles are eternal truths. That’s the nature of principles. Principles are universal truths derived from the facts of nature, including human nature. As long as nature doesn’t change, principles are forever applicable regardless of “changing times.” By definition, principles can be applied to an unlimited number of concrete circumstances. As Harvey Milk, one of the early leaders in the fight for equal rights for gays, said at a 1978 speech,
In the Declaration of Independence it is written “All men are created equal and they are endowed with certain inalienable rights . . . .” That’s what America is. No matter how hard you try, you cannot erase those words from the Declaration of Independence.

The Founders left open the opportunity and right of the American people to amend and alter the constitution—and properly so. That’s not in question. The thing that doesn’t need a rewrite is the Declaration of Independence. Without the principle that the individual is free and sovereign, and the government is servant, there is no America. Any rewrite of the Constitution should focus on stronger protections for individual rights, not more power to the government or the electorate. Otherwise, leave well enough alone.

Our freedoms are being rapidly eroded as it is, thanks to certain unfortunate contradictions in, and misrepresentations or evasions of, the existing constitution. The Left is probably correct that statism would be the winner in any constitutional convention held today. We the American people have largely lost sight of what the “free” in free society actually means. The erosion of our freedoms doesn’t need help from any constitutional rewrite.

As another correspondent observed, “A document designed to ‘constitute’ an extremely limited government, empowered to do but a very few things, has been perverted by leftists since at least WWI,”

So true. The statists would like nothing better than the chance to essentially repeal the First Amendment (“campaign finance” regulation), trash the governmental balance of power (ending 2 senators per state), and make it easier for the majority to run roughshod over the minority (ending the filibuster). We warriors for liberty must make the case that Americanist principles are timeless. True, new circumstances will always present us with the necessity of applying those principles in new ways. But the principles are just as valid in the era of instant worldwide communication, space travel, and biotechnology as in the “era of powdered wigs and silk breeches.” The American Revolution was not merely about throwing off “the yoke of political bondage to the King of England.” It was a rebellion against, in Jefferson’s own words, the yoke of political bondage to “every form of tyranny over the mind of man.”

Personally, I think that, given the state of “education” regarding America’s and the Enlightenment’s principles, a constitutional convention would be a major catastrophe, ending in an Imperial State of unlimited power. Statists have been rebelling against the principles of individual sovereignty that undergirds America since the Founding. The Star-Ledger is one of the reactionaries. It wants to transform the American Republic based on individual rights and a government of limited powers into a democratic tyranny complete with economic bondage to the state and political prisons for dissenters. It’ll likely get its wish if we allow a constitutional convention at this time.

Related Reading:

July 4, 1776: Words that Will Never Be Erased

On This Constitution Day, Remember the Declaration of Independence

The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty—Timothy Sandefur

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