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.
The resolution came from an entirely unexpected direction. William Richardson Davie of North Carolina, a delegate who said little of importance during the debate, pointed out one simple problem. "The divergence of population between the states is already so unequal," he said, that "if Georgia is to have only one delegate in the Senate, Virginia will have to have several dozen in order to be proportionally represented. Yet if this is so, what was to prevent the Senate from growing just as large and unwieldy as the Assembly."
The point struck home. Giving the states proportional representation in both Houses simply created duplicate institutions. There would be nothing to differentiate them. But giving each state an equal vote in the Senate, regardless of size, solved two problems -- it satisfied the interests of the smaller states plus it kept the Senate small and select enough to become a deliberative body. When a committee finally met over the Fourth of July holiday to iron out a compromise, that was what emerged.
And that is the system we live with today. It is not entirely fair or perfect. The Senate is eminently unrepresentative, with Wyoming's 560,000 residents having an equal vote with California's 37 million. The farm states are highly overrepresented as are rural Western states where conservatism often reigns. During the Obamacare debates, liberal columnists continually railed that, with the Senate's unequal representation, the grand design of National Health Care, plus with the planet-saving Climate Legislation, was being thwarted by a recalcitrant 15 percent of the population. Yet the system promotes compromise. It was exactly the impulse to run right over the opposition that undid the Democratic majority during the 111th Congress.
The Constitution is simply a system set up to settle our differences. It is not a blueprint for an ideal society. The "Constitutional Rights" people talk about are mainly in the First Ten Amendments, which are certain crucial but also illustrate the dangers of trying to create a society at the stroke of a pen instead letting it evolve through the common law. When the First Congress adopted the First Ten Amendments, they didn't mean them to stand in place of the Ten Commandments. Yet that is exactly what has happened. A violation of constitutional rights on the order of failing to fill out a search warrant in the proper fashion now takes precedence over a murder conviction.
During the First Congress's debates over the Bill of Rights, one wise Congressman noted that someone better include a right of men to "wear hats, go to bed and get up when they please," because someone was sure to come along and say if it wasn't a "right" specified in the Constitution, it wasn't allowed. The Congress recognized this problem and attempted to avoid it with the Ninth and Tenth Amendments:
IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.
Conservatives have rightly seized upon the Ninth and Tenth Amendment as the basic concepts underlying the Constitution. It is a document in which the people grant rights to the government, not one in which the government grants rights to the people. Liberals never stop misinterpreting this formula. Bill Moyers once asked a Supreme Court Justice, "When are you going to grant us more rights?" as if we were all beggars huddled outside some royal palace petitioning for an extra slice of bread or another holiday. But liberals like it that way because a "Living Constitution" allows them to write their own preferences into stone as "constitutional rights" rather than achieving them through legislation. Abortion is a constitutional right, the death penalty is unconstitutional, and on and on. In some states the right of public employees to collect their pensions has been written into the constitution. Now how did that ever happen?
When conservatives argue that the Constitution is silent on such issues, they are accused of "Originalism" and forcing us to live in the past. How could a bunch of 18th century white men have possibly anticipated all the problems of the 21st century? But the Founding Fathers weren't trying to solve our problems for us. They were simply giving us a set of ground rules that would allow us to solve problems ourselves. So far the system has worked magnificently. Let's hope it stays that way.
William Tucker's play, Founding Fathers, about the Writing of the Constitution, was produced at the New-York Historical Society in 2004.
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