236 years ago, on September 17, 1787, the Constitutional Convention ended and the Constitution of the United States of America was signed. This day is officially known as Constitution Day.
It was also an occasion for one columnist to declare that the US Constitution is "broken." The New Jersey Star-Ledger's Tom Moran wrote in 2012:
Kids in America are taught to venerate the Constitution, almost as if it were the word of God.
And that’s exactly what Thomas Jefferson feared. He believed it was flawed, that experience would teach each generation new lessons and that it should be redone every 19 years.
But Jefferson lost the argument. And so the Founders signed a Constitution 225 years ago tomorrow that is an impregnable fortress, firmly set against the forces of change that Jefferson welcomed and almost impossible to amend.
Does that make sense? Haven’t we learned valuable lessons over the past few centuries about how democracies thrive, and how they stagnate? In a day when our federal government is so dysfunctional, shouldn't we at least consider fundamental changes?
University of Texas Professor Sanford Levinson is advocating a series of such fundamental changes to the US Constitution, which Moran discusses in his column. Levinson's proposals include instituting a direct popular vote for president and measures to greatly weaken the checks and balances that limit the power of any one branch of government. In essence, Levinson's purpose, according to Moran, is to expand the power of majority rule and break Washington's political "gridlock," which has made our federal government "dysfunctional."
Moran approvingly cites Thomas Jefferson who, as Moran strongly implies, would welcome these constitutional changes, or any changes suited to any generation. That is strongly arguable, to put it mildly. But let's leave the Jefferson debate aside for now.
Before we discuss ways to expand the power of electoral majority rule so as to enable the government to get more "done", we need to have a conversation to reiterate what the Founders believed is government's purpose.
The American constitution's basic function is to limit the government's power to the protection of individual rights. This is spelled out in the Declaration of Independence, the philosophical blueprint for the constitution. Any discussion about the constitution has to begin with the Declaration--which, incidentally, was written by Thomas Jefferson:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. . .
In its essentials, this 55 word statement of proper government says:
All men are born equal in moral agency to self-govern their own lives without interference from other people, including in their capacity of government officials.
Each individual has rights to secure his freedom to exercise personal moral agency.
Rights belong inextricably to the individual by virtue of his nature as a human being.
Rights are held equally and at all times by all people.
Rights are guarantees to freedom of action; to the pursuit of happiness, not to happiness guaranteed by the labor or wealth of others.
Rights precede government.
Government is created exclusively to “secure”—i.e., protect—rights, not to grant, limit, or rescind them by legislative decree.
Government’s “just powers” are only those powers necessary authorized by the people through a popular vote.
“Just powers” being those powers, and only those powers, required for the government to fulfill the purpose for which it was created to begin with—to legally secure and protect the people’s unalienable individual rights to life, liberty, and the pursuit of happiness, and by implication private property rights, which the Founders recognized as essential to life, liberty and happiness.
Of course, this is not the "Word of God," to be accepted uncritically. Each of these points requires and had extensive philosophical backup. None of these "truths" are automatically "self-evident." They must be learned and validated scientifically; i.e., morally and philosophically, as determined by the observable facts of reality concerning man and his requirements for survival and flourishing. But these are the essentials.
The Founders did not intend to create a democracy, despite Moran's devious attempt to smuggle in that premise. They created a constitutionally limited republic protective of the liberty and rights of the individual, under which the constitution "carefully limits the power of the majority by drawing a legal boundary around it" (P. 113)—a boundary that stops the majority and elected officials' power where individual rights begin. The Founders understood that the government presupposes individual rights. So the constitutional discussion must begin with the questions: What are rights, and what is the proper function of government?
As the Declaration states, every individual is "endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Since productive work is the only means of sustaining one's life and achieving happiness, it's obvious that the Founders understood--including in Jefferson's own words--that property rights are among those rights. The Declaration then states "That to secure these rights, Governments are instituted among Men." Rights—which in fact are not endowments by either nature or God but moral principles derived from observations and facts about human nature—are sanctions to freedom of action in a social context, not a claim on the lives and property of others or a government guarantee of material well-being and happiness. Notice that the constitution does not authorize the government to redistribute private wealth. Forced redistribution of wealth or income would relegate some people to privilege and others to involuntary servitude, which would violate the principle of political equality.
Moran is wrong. America hasn't stagnated. It has "progressed" from what was a largely free country a century ago to a burgeoning regulatory welfare state—a dangerous regressionary trend unsupported by constitutional authority. Why? Because the fundamental principles upon which the constitution rests have been largely abandoned, opening the door to the piecemeal progression toward unlimited majoritarian rule, a manifestation of totalitarianism. Consequently, our best short-term protection against further encroachments on individual rights--and it's a weak protection--is political gridlock. I can't think of anything more dangerous to America's future than to begin tampering with the basics of the constitution in today's cultural environment. Before we consider unshackling majority rule, we must rediscover our Founding principles, roll back the regulatory welfare state, and provide ironclad guarantees that no one's rights be alienated by majority vote; i.e., respect the original intent of the constitution.
The Founders did not intend to replace absolute monarchy with absolute majority rule unconstrained by the principle of individual rights. As Benjamin Martin (Mel Gibson) asked during a debate over the propriety of the Revolutionary War in the movie "The Patriot", "Why should I 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."
The answer: We shouldn't. As Jefferson said, "the majority, oppressing an individual, is guilty of a crime, abuses its strength, and by acting on the law of the strongest breaks up the foundations of society." The Founders were not primarily concerned with giving the people the right to vote. They intended to liberate the people from predatory government, whether monarchistic, theocratic, socialist, or democratic.
There are those who would invert the original concept of Americanism—that the individual is sovereign and his life belongs to him—and replace it with the idea that the collective—i.e., the state—is sovereign over the individual. It is an attempted transition from republican constitutionalism to democracy; from individualism to collectivism. We cannot let the counter-revolutionary reactionaries succeed. The fight to defeat the reactionaries and restore and renew Americanism can start with this: As we celebrate Constitution Day, remember what I call the Constitution’s philosophic blueprint, or what has also been called the Conscience of the Constitution—the Declaration of Independence.
Related Reading:
The Federalist Papers by Alexander Hamilton, James Madison, and John Jay
On a Revisionist's Proposal to Upend the Declaration of Independence
Atlas Shrugged: America’s Second Declaration of Independence—Onkar Ghate
The Declaration of Independence
The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty—Timothy Sandefur
Constitutional Ignorance Led to a Tyranny of the Majority—Gary M. Galles
July 4, 1776: 'Words that Will Never Be Erased'
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