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A Further Perspective
Liberals Discover the Constitution
They can’t seem to understand why it isn’t more exciting.
You know things are moving in the right direction when the New Yorker feels compelled to write an article taking note of The Constitution. This week Jill Lepore rushes into the breach with a 5,000-word musing entitled “The Commandments,” mostly to make fun of the Tea Party reverence for the document and to ridicule Republican insistence that Congress be aware of the limits of the Constitution before passing legislation.
Lepore chooses Article III, Section 3 to prove her point: “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.” What’s that supposed to mean? And is it really a subject worthy of reverence, a firm foundation block for the Republic?
People who approach the Constitution expecting to find something akin to the Declarations of the Rights of Man always come away disappointed. Where are the ringing phrases? Lepore makes a good point noting that even House Majority Leader John Boehner recently attributed this memorable passage, “We hold these truths to be self-evident, that All Men are Created Equal,” to the Constitution. It is, of course, Thomas Jefferson’s ringing introduction to the Declaration of Independence. About the best the Constitution can offer is Gouverneur Morris’s mellifluous Preamble:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity, do hereby ordain and establish this Constitution of the United States of America.”
Simple and beautiful, isn’t it? But what does it mean in terms of a specific form of government? Well, here’s one interpretation. During the 1930s when the wild expansion of social spending was being challenged in court, the government case was upheld on the basis of that one clause, “promote the general welfare.” That’s why we call them “welfare” programs.
No, when you delve into the Constitution, you’re more likely to find dull and pedestrian phrases like Article I, Section 4:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
Most of the Constitution is housekeeping. It’s the rules and regulations by which we operate today. Some of it has been changed, some of it seems antiquated or unnecessary, but most of it is as familiar as our morning coffee — Congress is divided into two houses, the House is apportioned by population, in the Senate each state has two votes, the President has veto power over any legislation but can be overridden by a two-thirds majority of both Houses, the President is elected every four years. We could recite it in our sleep.
Lost in all this familiarity is what a miracle all this is — the “Miracle in Philadelphia,” as Catherine Drinker Bowen called it. Isn’t it amazing that a document conceived in the 18th century to run a country barely covering the eastern seaboard whose largest city was Philadelphia containing 50,000 people, and where a journey from New York to Baltimore took four days on horseback, could still be the basic blueprint for a country of 300 million people covering 3.5 million square miles where the majority of inhabitants are connected to each other at the speed of light? Hats off to James Madison, Alexander Hamilton, Ben Franklin and the others for having the sagacity to make it all happen.
In writing the Constitution, the Founding Fathers were not trying to draw up the blueprints for a perfect society. They were not even trying to resolve any of the troubling issues of their day, slavery being the most prominent example. They were simply setting up a system whereby they and those who came after them — us, that is — could resolve their differences in an orderly fashion. They agreed to agree, that’s about it.
None of this points to the left or the right or anywhere else in particular. To see how true this is, note that the men who spearheaded the Constitution — Madison, Hamilton, Gouverneur Morris, and James Wilson of Philadelphia — were the “progressives” of their day. They were the ones seized with the vision that a nation could be forged out of thirteen squabbling colonies, the ones who thought society could be moved ahead to something better. The “conservatives,” on the other hand, were the rural stick-in-the-muds, Roger Sherman and Oliver Ellsworth of Connecticut, Luther Martin of Maryland, who cherished local government and saw a monster taking shape in Philadelphia that would centralize power and run roughshod over long-standing local institutions. Yet the important thing is that both had their input. Had the Constitution simply been a system for establishing majority rule, it would have been shorter, simpler and undoubtedly wouldn’t have worked as well. The Constitution was, above all, a bipartisan effort.
The debate over the form of the Senate — the main sticking point — is a beautiful illustration of how diverse minds can deliberate over a problem until they arrive at a solution that satisfies everyone. The House of Representatives, it was quickly agreed, would be the great National Assembly, the “crucible of democracy” in which all citizens would be represented equally. The Senate, on the other hand, was to be a smaller forum, modeled on the Roman Senate, a debating society in which the best minds would apply themselves to the issues of the day with more equilibrium and less susceptibility to the passions and impulses of the day.
On this all agreed. But how should the states be represented in the Senate? To Madison, Hamilton, Wilson and Morris, all representatives of the larger states, the answer was simple — by population. How else should representative government work? The states themselves were historical accidents, created mainly by the land grants of the Colonial era. Why should the arbitrary concept of “states” stand in the way of a free people and representative government?
But to Sherman, Ellsworth, Luther Martin of Maryland, Gunning Bedford of Delaware and William Paterson of New Jersey — all representing states with smaller populations — the plan was an affront. The larger states would overwhelm them in both the House and Senate and their influence would be nil. The government would simply be another form of tyranny, with the majority dominating the minority. So the lines were drawn and fought over during the first two months of the Convention. There was little effort at compromise. As Bedford pointed out at one point, each delegate was simply voting his own self-interest. Delegates from large states voted for what they called “proportional representation” while the smaller states favored what they called “equal representation.” Even then, defining the issue was a big part of the battle.
Letter to the Editor View all comments (54) | Leave a comment
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Bill Hussein O'Stalin| 1.17.11 @ 6:21AM
They can read the Constitution all day.
To the U.S. Congress it's simply a prop.
Almost every law passed last year contained provisions which appear to fly in the face of the Constitution.
One simple reaction to that was the Tea Party. Thank goodness.
I don't think it will happen in this Congress but as the Tea Party, who is reviled by the political establishment of both parties and the state run media, continues with their plan and retires the political hacks and replaces them with real independents, only then will you see change.
Robert L Staecker| 1.17.11 @ 7:22AM
The Constitution doesn't matter any more. Today the politicians govern for them selves not the people, and as long as the people keep electing these politicians we will be in decline as a nation. I will watch these new people in congress and I hope that you will too, and see how these people will govern for them selves not the people. When people turn their backs on their God or Gods and their elected officials or
rulers legislate for them selves not the people, the nation declines till it disappears and we are there. There is time to stop this decline but it is a small window and we need to start toward the window NOW!!!
Ezzie| 1.17.11 @ 3:20PM
Just remember the Constitution is over a hundred years old and is hard for people today to understand it. Just ask the former Constitutional Law professor in the White House.
Ron| 1.17.11 @ 10:51PM
I attended high school in the 1950's' before history and civics texts were rewritten by progressives and turned into the politically correct fonts of misinformation they are today. I was taught, and heavily tested by a really committed teacher, that the founding fathers wrote the constitution to limit the powers of a federal government that they saw necessary only to provide a common defense for the states and to resolve issues dealing with interstate commerce. I seriously doubt that our founding fathers would have considered health care to be something comming under the auspices of interstate commerce. Abe Lincoln was a great man, but he started the process of making the constitution an irrelevant document and many presidents since have taken up his banner and charged blindly ahead.
franieb| 1.18.11 @ 9:44PM
Amen to that! I learned more in grammar school than those graduating high school today. Civics and history were drilled into us. The Constitution was an important part of learning about our freedom. Now it is totally ignored. Understanding diversity, global warming, sexual preferences and making sure all reference to God is expunged is so much more important!
Vasu Murti | 1.20.11 @ 6:38PM
"Liberals Discover the Constitution" ?!
With all due respect to William Tucker, the author of the article, when it comes to church-state separation, it's the conservatives requring an education on the Constitution.
Especially the "Tea Party" --
A Roman Catholic priest, Reverend David K. O’Rourke, said:
“Every religious group in the United States is a minority group. Some may be unhappy with this status and wish they had official standing. I am not unhappy with it.
"The Catholic Church, the largest of these minorities, has prospered greatly in this country where we separate church and state.”
Reverend Barry Lynn (an ordained minister in the United Church of Christ, a pro-choice Protestant denomination), Executive Director of Americans United for Separation of Church and State says:
"The Religious Right is still spreading misinformation about church-state separation and Robert Boston’s book (Why the Religious Right is Wrong About Separation of Church and State, Prometheus Books, 2003) debunks it.
"This book uses everyday language to explain why the Religious Right is wrong about separation of church and state."
According to Boston:
“We have a vibrant, multifaith religious society that, with the exception of a few fundamentalist Muslim states, is admired all over the globe. We have a degree of interfaith harmony unmatched in the world.
"Our government is legally secular, but our culture accommodates and welcomes a variety of religious voices. New faiths take root here without fear...
“Americans remain greatly interested in religion and things spiritual—unlike their counterparts in Western Europe, where religion is often state subsidized but of little interest to most people....
"Children are no longer forced to pray in school or read from religious texts against their will, yet they are free to engage in truly voluntary religious worship whenever they feel the need.
"The important task of imparting religious and philosophical training to youngsters is left where it always belonged—with each child’s parents or guardians...
"Some European nations have passed so-called anticult laws aimed at curbing the rights of unpopular new religions. Such laws would not be acceptable in the United States or permitted under the First Amendment.
“In a multifaith society such as the United States,” observes Boston, “a type of religious marketplace does exist. Religious groups that aggressively seek converts, such as the Mormons and the Jehovah’s Witnesses, are well aware that people in the United States are able and even willing to change their religious beliefs.
"To these groups, it’s well worth it to enter the marketplace and advertise their goods. Lots of people might buy them...
“Because the U.S. government is secular, religious groups are left to contend for members based solely on their own initiative.
"They create a free marketplace of religion that spurs competition and a vigorous religious life.
"This explains why the United States, which maintains church-state separation, retains a high degree of religiosity among its people.
“The more sophisticated and perceptive believers realize that the separation principle is a boon to their faith,” notes Boston.
“They see danger in any attempt by government to decide which religion is true and which is false. They know that a faith that is in favor with the government today can be out of favor tomorrow.
"These believers are thankful for the free marketplace of religion and the secular state that makes it possible. They understand that the way to get new members is through persuasion, not government aid.”
In 1787 when the framers excluded all mention of God from the Constitution, they were widely denounced as immoral and the document was denounced as godless, which is precisely what it is.
Opponents of the Constitution challenged ratifying conventions in nearly every state, calling attention to Article VI, Section 3:
“No religious test shall be required as a qualification to any office or public trust under the United States.”
An anti-federalist in North Carolina wrote: “The exclusion of religious tests is by many thought dangerous and impolitic. Pagans, Deists and Mohammedans might obtain office among us.”
Amos Singletary of Massachussetts, one of the most outspoken critics of the Constitution, said that he “hoped to see Christians (in power), yet by the Constitution, a papist or an infidel was as eligible as they.”
Luther Martin, a Maryland delegate to the Constitutional Convention of 1787 wrote that “there were some members so unfashionable as to think that a belief in the existence of a Deity, and of a state of future rewards and punishments would be some security for the good conduct of our rulers, and that in a Christian country, it would be at least decent to hold out some distinction between the professors of Christianity and downright infidelity or paganism.”
Martin’s report shows that a “Christian nation” faction had its say during the convention, and that its views were consciously rejected.
The United States Constitution is a completely secular political document. It begins “We the people,” and contains no mention of “God,” “Jesus,” or “Christianity.”
The Constitution's only references to religion are exclusionary, such as the “no religious test” clause (Article VI), and “Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof.” (First Amendment)
The presidential oath of office, the only oath detailed in the Constitution, does not contain the phrase “so help me God” or any requirement to swear on a Bible (Article II, Section 1).
The words “under God” did not appear in the Pledge of Allegiance until 1954, when Congress, under McCarthyism, inserted them.
Similarly, “In God we Trust” was absent from paper currency before 1956, though it did appear on some coins beginning in 1864.
The original U.S. motto, written by John Adams, Benjamin Franklin, and Thomas Jefferson, is “E Pluribus Unum” (“Of Many, One”) celebrating plurality and diversity.
In 1797, America made a treaty with Tripoli, declaring:
“...the government of the United States is not, in any sense, founded on the Christian religion.”
This reassurance to Islam was written under Washington’s presidency and approved by the Senate under John Adams.
We are not governed by the Declaration of Independence. Its purpose was to “dissolve the political bonds,” not to set up a religious nation.
Its authority was based upon the idea that “governments are instituted among men, deriving their just powers from the consent of the governed,” which is contrary to the biblical concept of rule by divine authority.
The Declaration deals with laws, taxation, representation, war, immigration, etc., and doesn’t discuss religion at all.
The references to “Nature’s God,” “Creator,” and “Divine Providence” in the Declaration do not endorse Christianity. Its author, Thomas Jefferson, was a Deist, opposed to Christianity and the supernatural.
Thomas Jefferson established religious liberty.
Journalist Rob Boston writes in his 2003 book, Why the Religious Right is Wrong About Separation of Church and State:
"Thomas Jefferson excelled as a political leader and architect of religious liberty...During his lifetime, Jefferson spoke eloquently about the need for religious liberty for all people--not just Christians. Jefferson was a strong advocate of the idea that there must never be force or coercion in matters of religion."
“Of all the systems of morality, ancient or modern, which have come under my observation, none appear to me so pure as that of Jesus,” wrote Thomas Jefferson.
However, Jefferson admitted, “In the New Testament there is internal evidence that parts of it have proceeded from an extraordinary man and that other parts are the fabric of very inferior minds...”
According to Isaac Kramnick, professor of government at Cornell University:
"It was Thomas Jefferson who established the separation of church and state. Jefferson was deeply suspicious of religion and of clergy wielding political power.
"Jefferson helped create the Virginia Statute for Religious Freedom in 1786, incurring the wrath of Christians by his fervent defense of toleration of atheists:
'The legitimate powers of government extend to such acts as are only injurious to others. But it does no injury for my neighbor to say there are 20 gods or no god. It neither picks my pocket nor breaks my leg.'"
Jefferson advocated a “wall of separation” between church and state not to protect the church from government intrusion, but to preserve the freedom of the people:
“I consider the doctrines of Jesus as delivered by himself to contain the outlines of the sublimest morality that has ever been taught;” he observed, “but I hold in the most profound detestation and execration the corruptions of it which have been invested by priestcraft and established by kingcraft, constituting a conspiracy of church and state against the civil and religious liberties of mankind.”
Jefferson and the founding fathers were products of the Age of Enlightenment. Their world view was based upon Deism, secularism, and rationalism.
“The priests of the different religious sects dread the advance of science as witches do the approach of daylight,” wrote Jefferson.
“The day will come when the mystical generation of Jesus, by the Supreme Being as his Father, in the womb of a virgin, will be classed with the fable of the generation of Minerva in the brain of Jupiter...we may hope that the dawn of reason and freedom of thought in these United States will do away all this...”
As late as 1820, Jefferson was convinced everyone in the United States would die a Unitarian. Jefferson, Madison and Paine’s writings indicate that America was never intended to be a Christian theocracy. “I have sworn upon the altar of God,” wrote Jefferson, “eternal hostility against every form of tyranny over the mind of man.”
According to Rob Boston:
"Jefferson made that statement against ultraconservative religious leaders in New England who opposed him politically and opposed his views on church-state separation.
"Any assertion that Jefferson would find common cause with today's Religious Right is laughable. Not only would Jefferson disagree with Religious Right theology, he would adamantly oppose its political views and agenda.
"Jefferson would recognize today's Religious Right as the spiritual descendants of the narrow-minded clergy he swore "eternal hostility" against so long ago. He would treat the Religious Right with similar disdain...
"Obviously, Jefferson should not be portrayed as a demigod. He was a man with faults and flaws, as we all are. In some ways, Jefferson was very much the product of his time...In other ways, his thinking was light years beyond that of his contemporaries. In the areas of religious freedom and freedom of conscience generally, Jefferson's contribution enabled humanity to take a kind of great leap forward...
"Jefferson was the author of the Declaration of Independence, one of the greatest testaments to human liberty ever penned. More than 220 years after it was written, the Declaration still inspires oppressed people today... Jefferson served as ambassador to France, governor of Virginia, and president of the United States. He founded the University of Virginia and authored Virginia's Statute for Religious Liberty.
"Jefferson was a prodigious thinker with an innate curiosity about the world around him. In his spare time, he invented things--most notably the dumbwaiter, the swivel chair, and a new type of plow.
"He conducted scientific experiments in botany and took great interest when a nearly complete mastodon skeleton was unearthed near Newburg, New York, in 1801. He engaged in a vigorous correspondence with several people at once on just about every topic imaginable.
"Jefferson was a man of keen intellect. Religious freedom undergirded by the separation of church and state is just one of his legacies to the American people."
In his 1802 letter to the Danbury Baptists, Jefferson wrote:
“Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”
Similarly, in an 1824 letter to John Cartwright, Jefferson expressed anger at judges who had based rulings on their belief that Christianity is part of the common law.
Cartwright had written a book critical of these judges, and Jefferson was glad to see it. Observed Jefferson, “The proof of the contrary, which you have produced, is controvertible; to wit, that the common law existed while the Anglo-Saxons were yet pagans, at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had ever existed.”
Jefferson challenged “the best-read lawyer to produce another script of authority for this judicial forgery” and concluded, “What a conspiracy this, between Church and State!”
As president, Jefferson put his “wall of separation” theory into practice. He refused to issue proclamations calling for days of prayer and fasting, insisting that they violate the First Amendment.
As early as 1779, Jefferson proposed a bill before the Virginia legislature that would have established a series of elementary schools to teach the basics—reading, writing, and arithmetic.
Jefferson even suggested that “no religious reading, instruction, or exercise shall be prescribed or practiced, inconsistent with the tenets of any religious sect or denomination.”
Jefferson did not regard public schools as the proper agent to form children’s religious views.
As president, James Madison also put his separationist philosophy into action. He vetoed two bills he believed would violate church-state separation.
The first was an act incorporating the Episcopal Church in the District of Columbia that gave the church the authority to care for the poor.
The second was a proposed land grant to a Baptist church in Mississippi.
Had Madison, the father of the Constitution, believed that all the First Amendment was intended to do was bar setting up a state church, he would have approved these bills. Instead, he vetoed both, and in his veto messages to Congress explicitly stated that he was rejecting the bills because they violated the First Amendment.
Later in his life, James Madison came out against state-paid chaplains, writing, “The establishment of the chaplainship to Congress is a palpable violation of equal rights, as well as of Constitutional principles.”
He also concluded that his calling for days of prayer and fasting during his presidency had been unconstitutional.
In an 1819 letter to Robert Walsh, Madison wrote, “the number, the industry and the morality of the priesthood, and the devotion of the people have been manifestly increased by the total separation of the church from the state.”
In an undated essay called the “Detached Memoranda,” written in the early 1800s, Madison wrote, “Strongly guarded...is the separation between Religion and Government in the Constitution of the United States.”
In 1833 Madison responded to a letter sent to him by Jasper Adams. Adams had written a pamphlet titled “The Relations of Christianity to Civil Government in the United States,” which tried to prove that the United States was founded as a Christian nation.
Madison wrote back:
“In the papal system, government and religion are in a manner consolidated, and that is found to be the worst of government.”
Madison, like Jefferson, was confident that separation of church and state would protect both the institutions of government and religion.
Late in his life, Madison wrote to a Lutheran minister about this, declaring:
“A due distinction...between what is due to Caesar and what is due to God, best promotes the discharge of both obligations...A mutual independence is found most friendly to practical religion, to social harmony, and to political prosperity.”
In the early part of the 19th century, a general understanding existed that the government should not promote religion, or favor one religion over another.
In 1829, Senator Richard Johnson of Kentucky wrote:
“It is not the legitimate province of the Legislature to determine what religion is true, or what is false.
"Our Government is a civil and not a religious institution. Our Constitution recognizes in every person the right to choose his own religion, and to enjoy it freely, without molestation.
"Whatever may be the religious sentiments of citizens, and however variant, they are alike entitled to protection from the Government, so long as they do not invade the rights of others...
“Among all the religious persecutions with which almost every page of modern history is stained, no victim ever suffered but for violation of what Government denominated the law of God. To prevent a similar train of evils in this country, the Constitution has wisely withheld from our Government the power of defining the divine law.”
Appleby| 1.17.11 @ 7:50AM
So what DOES that paragraph about Treason mean, exactly?
Ken (Old Texican)| 1.17.11 @ 10:08AM
Appleby,
simply type search terms " bill of attainder" on your search engine.
It is closely tied to "no ex-post-facto" precept.
Vern Crisler| 1.17.11 @ 10:59AM
According to Wikipedia: ‘Punishment for treason may not "work Corruption of Blood, or Forfeiture except during the Life of the Person" so convicted. The descendants of someone convicted for treason could not, as they were under English law, be considered "tainted" by the treason of their ancestor. Furthermore, Congress may confiscate the property of traitors, but that property must be inheritable [by their descendants] at the death of the person convicted.’
http://en.wikipedia.org/wiki/A.....nstitution
Perhaps if Ms. Lepore had done a small amount of research she wouldn’t have embarrassed herself in showing how ignorance she was of the Constitution.
The provision is based upon such moral truths as can be found in the Bible, e.g.,: “The soul who sins is the one who will die. The son will not share the guilt of the father, nor will the father share the guilt of the son. The righteousness of the righteous man will be credited to him, and the wickedness of the wicked will be charged against him” (Ezekiel 18:20). See also, Deut. 24:16, Jer. 31:29-31.
In his providence, God may punish the children for the sins of the fathers, but as a legal matter, the Israelites were not to punish the children for the sins of the fathers.
Thus, in the Constitution, the children are not to be punished for the sins of the fathers. Tragically, they may suffer in other ways -- moral, spiritual, reputational -- but they cannot suffer any legal reprisals under the Constitution.
Again, a little bit of research is often all that is needed.
William Tucker| 1.17.11 @ 11:41AM
Lepore does explain the meaning of the paragraph later in her article. It was my oversight not to mention this.
Vern Crisler| 1.17.11 @ 12:32PM
Thanks. Aside from a couple points, plus the jaw-dropping "So far the system has worked magnificently," excellent article. (There's a difference between the system created by the founding fathers, and the new one foisted upon us by Progessives and activist judges.)
fwb| 1.18.11 @ 6:12PM
What the treason sentence truly means is that the federal government, the Congress specifically, didn't/doesn't even have the power to punish treason WITHOUT an explicit grant from We the People.
There is no blanket punishment power in the hands of the federal government. There are exactly three grants in the Constitution, this paragraph/sentence being one of them.
Mr. Tucker: Mr. Ellsworth made and pushed throught the point that the Framers were not forming a nation. People that believe the US is a nation do so having been brain-washed by the Pledge of Allegiance. The Pledge is used to destroy the Tenth Amendment.
The US is a Union of free and independent nations, called States. The word State is synonymous with Nation. Check out the reference to Great Britain in the last paragraph of the Declaration of Independence. And one can search the Constitutionforever never finding a reference to the US as a Nation, all due to the efforts of Mr. Ellsworth.
Mimi| 1.17.11 @ 7:58AM
You have written a valuable article...William Tucker. The clarity, and simplicity in how you explain the founding principles is just remarkable.
... The PARADOXICAL line.... "It is a document in which the PEOPLE grant rights to the GOVERNMENT, not one in which the GOVERNMENT grants rights to the PEOPLE "
It has been said once that the members and staff of Congress read the opinions of our forum here on TAS...." To get the feel of the PEOPLE"..Kudo's to KEN the Texican. I hope that all of them can read your article TODAY.
Ken (Old Texican)| 1.17.11 @ 8:41AM
Mr. Tucker,
Thank you for this column. ALSO, thank you for the link to your book, "Terrestrial Energy" at the bottom of your column.
I have just bought the book, and I hope some others will as well.
Folks,
start agitating for nuclear energy with your Reps.
We are looking at $5 gasoline a year from now.
Mel Torme| 1.17.11 @ 10:08AM
"The states themselves were historical accidents, created mainly by the land grants of the Colonial era. Why should the arbitrary concept of "states" stand in the way of a free people and representative government?"
This part of your article shows a real lack of understanding on your part, Mr. Tucker. Don't count yourself out of the NYT/New Yorker crowd yet. The states were in no way thought of as any "historical accident". My point is that each state was considered SOVEREIGN, and keep in mind that is the real definition of the word "state", not the meaning of "district" or "prefecture" or "statistical region", the way it is now.
I will admit that I didn't understand this until I was maybe 30 years old, Mr. Tucker, so, I don't know how old you are .... etc. ...
Forming the union could be though of in the same way as forming a European Union (granted, they have much different cultures, and their constitution is about the size of the NY Yellow pages or, I don't, know, take your average health care bill - like that size, which makes it crap, of course). My point is, in Europe, you still had "nations" or you could say "nation-states". Putting them together is analogous to the 13 states getting together in the 1780's.
It was absolutely NOT like incorporating 2 or 3 counties into a regional water district. It doesn't seem like you get this - the 13 states were separate sovereign countries after the revolution (just like Texas was, years later). That is why the 9th and 10th Amendments are so important, Mr. Tucker.
I'll admit it's a good thing that the US Constitution is being talked about - if it were being followed that would be a really GOOD thing.
Paul| 1.17.11 @ 10:38AM
Mr. Torme, you misunderstand Mr. Tucker's imputation of a view regarding states to "Madison, Hamilton, Wilson and Morris" as a statement of his own personal beliefs on the matter. His verbiage does not imply a "real lack of [historical] understanding." It was indeed controversial at the time of the Constitution's writing whether an entity like Delaware should justly be considered to have the same rights as an entity like Virginia. Similarly, the states could be called historical "accidents" in the philosophical sense, in that the outcomes of the historical processes that led to their particular creations were not, strictly speaking, necessary. Absent a specific few dissenting religious figures, there would have been no separate Rhode Island and Providence Plantations, for example.
Mel Torme| 1.17.11 @ 10:52AM
Paul, I do know some of the history. I know, as you and the author state, that there was disagreement on how whether the Senator's representation should be apportioned (?) in the same manner as in the lower house. However, look at Tucker's 2nd line of my quote "Why should the arbitrary concept of "states" stand in the way of a free people and representative government?"
OK, I understand that Tucker is writing that this was the line of thinking of Madison, Hamilton, Wilson and Morris, etc. at the time. However, I don't believe that. Tucker is thinking in a late 20th and 21st century mindset - that these states are just divisions (yes their formation was indeed arbitrary - S. and N. Carolina extended west to the Pacific Ocean, as I recall, until some point).
They were not just divisions of some "United States" nation, as there was nothing of the sort then. Even, through the 19th century, many Americans referred to "these united" states, not "The United States".
Nobody thought of the 13 former colonies as anything but sovereign States, at the time of the US Constitution's writing. How representation would work in the new confederation (for a common defense) is another story.
William Tucker| 1.17.11 @ 11:39AM
In saying that supporters of proportional representation in the Senate saw the states as historical accidents, I am quoting almost directly delegate Rufus King of Massachusetts, who argued passionately at one point, "I cannot therefore but repeat my amazement that when a just government founded on representation of the people is so close at hand, we should founder on this idea of preserving the artificial and illusory importance of states."
Vern Crisler| 1.17.11 @ 12:11PM
I'm not sure if Madison ever commented on the precise issue you guys are arguing, but he did say that the States were sovereign, independent bodies prior to ratification of the Constitution:
“Each State, in ratifying the Constitution, is considered as a sovereign body independent of all others….” (Federalist 39).
After ratification, sovereignty was divided (contrary to Calhoun's theory of unitary sovereignty).
Mel Torme| 1.17.11 @ 12:49PM
Vern, who said Tucker and I are arguing? I am telling him what's what. ;-) I may not have been around in body during those historic times, but in spirit maybe - "the Velvet Fog", along with "the Swamp Fox", etc.
Mel Torme| 1.17.11 @ 12:41PM
There's your first progressive statist, William, in a long line of them up there in Massachusetts. My point is simply that those 13 states were 13 countries, up until the US Constitution was signed.
After that, until the Socialist Roosevelt was in power, the 9th and 10th Amendments were still seen as relevant, and a state wouldn't suck up to Fedzilla for grant money nor accept blackmail of highway money to comply with laws regarding drinking age and sobriety tests. The states have converted from countries to pussies over a 220 year period. I'm surprised there isn't a 28-day cycle of upheaval and bloody, hate-filled rhetoric flowing out from state governments regularly.
Nunya| 1.17.11 @ 6:51PM
LOL!! Good thing I wasn't sipping on coffee when I read your last line... :-)
Excellent point, though.
blackwatch| 1.17.11 @ 7:18PM
snort!
Mel you owe me a keyboard--my pepsi is flowing out of my nostrils with that '28 day upheaval bit!"
Damn your a good wordsmithy!
Vern Crisler| 1.17.11 @ 11:14AM
“[T]he men who spearheaded the Constitution -- Madison, Hamilton, Gouverneur Morris, and James Wilson of Philadelphia -- were the "progressives" of their day. . . . The "conservatives," on the other hand, were the rural stick-in-the-muds, Roger Sherman and Oliver Ellsworth of Connecticut, Luther Martin of Maryland, who cherished local government. . . .”
I have to say, this is pretty bizarre. The Constitutionalists (Madison, Hamilton, et al.) were not “progressives” and the anti-Federalists were not “conservatives.” The Progressives did not believe in fixed, absolute moral or constitutional limits, whereas that is the essence of Madisonian constitutionalism. Shame on the writer for not understanding this.
Len| 1.17.11 @ 12:20PM
Right, Hamilton exactly. To say that he believed in the limits of the US constitution is belied by all that he did contrary to it's limits. Assuming the states debts, the BUS, among others.
Vern Crisler| 1.17.11 @ 12:29PM
Strict v. loose construction is not the same as original intent v. the living Constitution of the Progressives.
JimP| 1.17.11 @ 6:26PM
Good point, Vern. Why did the author choose the word 'progressive' anyway? The Founders were liberals (in the classical sense). Why not refer to them as Classical Liberals? The conservatives were "rural sticks in the mud" who favored local control? So Jefferson was one of these, but the author didn't name him. Madison qualifies as well yet this author characterizes him as a "progressive". Something is rotten in Denmark about this article and the author.
George S| 1.17.11 @ 11:15AM
I disagree with the assertion that the Constitution was written to enable future generations to resolve differences (that steers a little too close to liberal-speak).
The key reason it was written was to prevent tyranny from being installed by a federal government by separating and enumerating the powers of that federal government. The Declaration set us free and the Constitution means (meant) to keep us that way.
Vern Crisler| 1.17.11 @ 11:36AM
Dittos, George.
GW| 1.17.11 @ 5:11PM
Can it not be both? The articles confer what specific powers each branch of government has, and the first ten amendments stress what rights are protected (although of course not an exhaustive list). In other words, the founders gave us a structure to resolve differences at the federal level, while making sure the government they formed would be limited and untyrannical.
George S| 1.17.11 @ 8:05PM
The purpose of the federal government was not to resolve differences but to carry out a series of functions as mentioned in the preamble of the Constitution, the Federalist Papers and the transcripts of the constitutional debates. Differences are not resolved -- one side either prevails or compromises. The only disputes settled by the Constitution are with process (i.e., a tie in the Electoral College, a contract between States) and not of public policy. Those get hashed out in the arena of ideas and the Constitution could care less who prevails at the ballot box, unless it violates a God given right.
Len| 1.17.11 @ 12:51PM
Sorry, to say that the US constitution was made to settle differences is to only get it partly right. As far as differences go, then yes the commerce clause, and other economic clauses such as the power of coinage (to do away with the paper money that was being printed by certain states, or paper money that was not actually money) were part of the US constitution. The commerce clause and treaty powers were also part of the US constitution to enable the states to be stronger in relation to other nations, as individually they were being blackmailed through embargoes.
The common defense powers were also given to enable the states to not be at odds with each other and to ensure that one state or region would not fall sway to any European power.
None of the above though does away with the states, but merely creates a common government for external matters. Certainly the ability to pass laws for the people was not needed for this common government, as the several state were in no way allowing other states to participate in their particular polities. Any simple reading of the agreement/constitution bears that out, even before such amendments as the 10th. Indeed it would have been foolish to continue with state constitutions and governments were the states being done away with in any way.
So, 1 part; to settle differences.
Another part, merely an agreement to have a common government for external matters, or those matters too wieldy for an individual state.
It is also important to note that the United States itself has no true location, only the states do, and that is part of the why as to why any state may at any time retract it's permission for the United States to have any say over it's sovereign territory or people.
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As for those supposed general welfare powers, the clause is the "general welfare of the United States", not the people of the states. Why would the states give power to the federal government to do what they were already doing? This is absurd to the highest degree.
Further that general welfare clause is a limiting clause. The federal government may collect taxes, duties, excises and imposts for any reason whatsoever? No, it may do so in order to pay it's debts and provide for COMMON defense, and the GENERAL welfare of the UNITED STATES.
May it pass any laws it wants for common defense and the general welfare of the UNITED STATES? No, it may collect taxes, et. al. for such. Any power needed for common defense or general welfare is found below the taxing power (along with treaty power and a few more).
BTW, may the congress or the president use the treaty power to override the US constitution? How? They are to act under the authority of the US constitution, and if more is needed, then there is Article V. So those treaties(not to mention those ridiculous executive agreements) to protect other countries? Unconstitutional. It is common defense, and as such all other powers may only be exercised within that limit.
Mel Torme| 1.17.11 @ 1:06PM
Great comment, Len.
Nunya| 1.17.11 @ 6:57PM
Len,
Excellent points. I have often said that "Executive Orders" have no basis in the Constitution, and frankly think they should ALL be declared unconstitutional and retracted. The main reason we have Congress is to prevent some President from consolidating power and promoting himself King.
Unfortunately, few in Congress know the Constitution well enough to make decent decisions, or I would have hoped someone would have challenged these in the Supreme Court already.
Len| 1.17.11 @ 7:43PM
Nunya, I hope you understand there are both executive agreements and executive orders, neither of which is constitutional.
Executive agreements are when presidents bypass the constitution to enact treaties without the congress. By calling what is in substance treaties, executive agreements, presidents excuse their violations. There is not one modern president who has not violated the treaty clause through executive agreement, and that includes Reagan.
As for executive orders, yeah, all legislative was given to the congress and that includes this.....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.
That means that only the congress may say what is legal or not legal, what is regulated or not regulated, and the president may only act subsequently to such laws being passed. Calling something an executive order or regulation when in truth it is substance a law is playing at semantics.
Vern Crisler| 1.17.11 @ 1:11PM
"It is also important to note that...any state may at any time retract it's permission for the United States to have any say over it's sovereign territory or people."
Didn't we already fight this battle?
Len| 1.17.11 @ 1:17PM
So a voluntary agreement may be altered by force? Then the US constitution is meaningless, and let's just get all out in the open, last man standing wins.
Sid Vicious| 1.17.11 @ 1:45PM
The socialists who spend so much time championing the "living Constitution" have yet to explain how a 223-year-old document lives... but a five-month-old fetus doesn't.
Nick| 1.17.11 @ 2:29PM
Mr. Tucker,
I, too, think your article was excellent.
I, too, like Mr. Crisler, take issue with your words, "So far the system has worked magnificently."
Almost 80 years ago, FDR started doing everything not in his power to impliment what Wilson had failed to accomplish, and did a magnificent job eroding the rights that all Americans enjoyed for over 140 years.
jawin| 1.17.11 @ 4:07PM
The system works "magnificently" for those who abide by it. But, right now, it seems to be working better for those who play semantics and who choose to change this "living" document, sometimes by fiat, sometimes by court order, sometimes by (un-Constitutional) law, and sometimes by regulation.
Len| 1.17.11 @ 4:24PM
A by-the-the by: I think it interesting to ponder some what-ifs. Such as what if Patrick Henry had not declined to be a delegate to the convention? His given reason was that he "smelled a rat". Would things have been different? I would argue "yes". Indeed some think that Madison wanted a national government due to the fact that Henry was a more influential person in Virginia, and that if a national government, which is what he proposed, were instituted Madison would then be able to be a person of more significance.
What if Luther Martin (among others) had not left early? He left just before the tide swung from a national government to a federal one.
What if Jefferson had not been in Paris? Oh well, just pondering.
Jason| 1.17.11 @ 4:52PM
I understand what Tucker is getting at in his characterization of "progessive" and "conservative" during the time of the founding, but I disagree.
I think whether one is progressive or conservative is a function of one's moral foundations, as described by psychology professor Jonathan Haidt from the University of Virginia. With that understanding I would argue that all of the founders, indeed virtually the entire nation at the time, were solidly conservative.
JimP| 1.17.11 @ 6:18PM
"When the First Congress adopted the First Ten Amendments, they didn't mean them to stand in place of the Ten Commandments."
I don't know where Mr. Tucker studied American History, but if I correctly understand his statement above, he's flatly wrong. He's also flippant in his treatment of the inclusion of a Bill of Rights into the constitution as particularly noted by the 'hat' quote. Inclusion of it was a very important debate, at least on par with the debate over the Senate. Frankly, such an unorthodox presentation about this subject makes me suspicious.
mac| 1.17.11 @ 9:08PM
Looks like the guys from the smaller northeastern states were right! Now that Senators are elected by popular vote (17th amendment) within their states, rather than by their legislatures, the senate has become increasingly more an avenue towards larger government and no longer a "state" representative. Now, as long as any political party can control the election of 33 senators every two years, they can effectively control the gov't. I don't believe this was the check and balance the framers were looking for. It certainly isn't representative! If things are ever going to move structurally towards a more limited gov't, amendment 17 should be repealed, and the original structure be reinstated. Does anyone really think that the grand social programs of the New Deal and every one since then would have been approved if Senators had to answer to the state legislatures which have to find ways to pay for these? I don't think so!
Walking Horse| 1.17.11 @ 10:54PM
There are key points that have gone missing in this discussion.
The Declaration of Independence explains the "why" of government - "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the
governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish
it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
The Constitution delineates the "What" - an architectural specification for the federal government, clearly enumerating those powers that are delegated to it, clearly enjoining it from crossing that boundary.
The historical record, in particular the Declaration of Independence, the Articles of Confederation, and the Constitution, all make it clear that the political compacts that they represent are in fact contracts among the States, recognized as sovereign States, not administrative superfluities.
Everything in these documents cry "j'accuse!" to the Statists who would try to mangle the clear language of these documents into an illegitimate warrant for unlimited government power.
It is high time for the States to exercise their inherent power to act in their own defense, in response to flagrant breaches of contract.
gary siebel| 1.18.11 @ 12:34AM
Error
"It is a document in which the people grant rights to the government, not one in which the government grants rights to the people."
Hamilton considered the Const. to be a Bill of Rights itself. It grants legal rights repeatedly in attempts to protect human rights (which pre-exist the Const). The qualifications for office are legal rights. In some cases it recognizes rights: habeus corpus. But all governments are compacts wherein citizens grant powers to the government, and governments grant, and create by the act protection, many rights of it's citizens, eg, the right to own property. Without government, there can be no landed property.
The Senate is fine as is. The people have equal (sort of) proportional representation in the House, the States have equal representation in the Senate.
Legislatures can be as corrupt as individuals, so there is no guarantee Senator's elected by State Legislatures will be any better at representing a State than one elected by the people. Furthermore, since it would be by party-line voting, Senator's would be continually subject to recall if a legislature's party dominance changed .
Sonny| 1.18.11 @ 3:46AM
Excellent article, and very accurate.!!
But why do Liberals hate the US Constitution so much, and the American Patriotic People. aka the Tea Party Patriots for protecting and defending it.. because they are Anti-American, Anti-Constitution, as they do not believe in the average humble citizenry of people, having the awesome power of the govt., in their hands.. as they are elitist, and thus arrogant and even dangerous, in that aspect.. for if they, the Liberals, ie; Obama, Pelosi, Reid, etc., continue to degrade and nullify by irrelevancy, the authority of the US Constitution, then the whole concept and design of a Democratic Republic, is gone...
This is why we, "The People", are so important.!!!! As this great nation with a Govt., that is, "Of the People, By the People, and For the People", shall not Perish from this earth", to be the long lasting truth, then we must stand and defend it from the Domestic Enemies of America, as well as our Foreign enemies abroad, and soon, for if not, it will surely be destroyed.
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The Tea Party Movement, aka, the Boston Tea Party, has existed since 1773, which started the movement of the American Revolution, against England and King George, which at the time, we were colonies of the most powerful nation on earth. And now, in 2010, with the advent of Obama and his Liberal Socialist Marxism, the American Tea Party Movement has arisen once again, and once we, the American Patriotic People, aka, the American Tea Party Movement, of Patriotic Americans from all walks of life, will undoubtedly take back our Nation, from the grips of this Tyrannical and Oppressive Regime, that has all but Destroyed and Bankrupted America.
The Tea Party Movement will always exist, as long as there are Patriotic American Men and Women, willing to fight back, to stand tall and fast, to protect and defend the U.S. Constitution, and America,
against ALL enemies, Foreign and "DOMESTIC".!!
If Obama and his army of radical far leftwing Liberal Hate War Mongering Facist Nazi's, want to wage an all out War against the American Patriotic People, as well as the great people of Az., then we will more than happy to oblige him on his quest to divide and destroy America, and we will take back America, and restore America back to it original founding fathers US Constitutional Independent Republic, once again.!!!
The American Patriotic People now realize, that "WE THE PEOPLE", are the gate Keepers of America's Freedom, Liberty, Justice, Democracy, and the US Constitution, and not the GOVT.!!!
The Tea Party Patriotic Movement, is not only here to stay, but it has never left, and since 1773, the original Boston Tea Party, has not only helped to start the American Revolution, but has helped to grow this Great Nation to it's Destiny, as the Leader and Champion, of Freedom, Liberty, and Democracy, all over the world.
The Tea Party is representative of the struggle of the American People, to secure, with absolute resolution, Freedom and Liberty, to the People, and the Nation. In other words, where there is Tyranny and Oppression, the will be the American Patriotic Tea Party People, aka Minutemen, to fight it back, and restore, and maintain Freedom and Liberty, as that is what Gate keepers of Freedom and Liberty do.!!
Time To Restore America.!!
As President Ronald Reagan once said:
"Democracy and Freedom, must be defended with each generation, for if it is not, it will surely Perish".!!
"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."
Zander46| 1.18.11 @ 1:42PM
LOOK AT "THE BILL OF RIGHTS"!!! That is where THE POWER OF THE PEOPLE COMES FROM!
fwb| 1.18.11 @ 6:15PM
No, the power of the people comes from God. The Bill of Rights grants absolutely nothing. Read them. Thay are enumerations, listings of Rights that preexist the Constitution. The Constitution does not grant rights it simply recognizes them.
REB| 1.20.11 @ 1:46AM
And for the most part it has worked well,it aint broke so get your commie-liberal hands off it!
Kenneth Moyes | 1.20.11 @ 11:57AM
What this article does not cover is how the progressives have marginalized, ignored, and abused the Constitution, so now we barely have a federal republic. The assault on the Constitution is actually picking up speed with the current administration and prior Congress' abdication of law making ability to the executive branch. By law, the Congress has granted the executive branch the ability to write thousands of personal and free market intrusive regulations, all with the force of law.
To understand the 100 year assault on the Constitution you can read a free, without ads, book-blog on these issues at www.republicof1789. The read is about an hour. Sixteen chapters covering how we have skewed the Constitution to destroy the horizontal checks and balances of the branches of the federal government and the verticle checks and balances of the semi-sovereign states over a "limited" government republican form of governance.
Adidas | 8.11.11 @ 5:32AM
is good
العاب بنات | 4.11.12 @ 2:32PM
When the First Congress adopted the First Ten Amendments, they didn't mean them to stand in place of the Ten Commandments.