Constitutional Oversights

I have blogged in the past about the failures of the authors of the U.S. Constitution to anticipate the immense power of great wealth in this country which has resulted in the present shut-down in government — following directly from the obedience of our elected officials to those who have provided the bulk of the immense amounts of money required to place them in office. This, of course, results in allegiance to those to whom much is owed and to the Party they support, making cooperation with those across the aisle nearly impossible.  These things were not, indeed they could not have been, anticipated by the authors of our Constitution writing in the eighteenth century.

At a time when the U.S. Senate was not elected but appointed by state legislatures, often at the beck and call of vested interests, Henry Adams hoped that President Grant would initiate steps to remedy at least one shortcoming of the Constitution; namely, the extraordinary power vested in a Senate that was not responsive to the electorate. This resulted in a corrupt Senate with considerable power coupled with the inability of the executive to get much of anything done, a problem that persists to this day. Adams was disappointed, and the improvements he hoped for in the Constitution never came to fruition. Indeed, despite the addition of a few amendments from time to time, the possibility of opening serious discussion about the revisions necessary in what has become a sacred, albeit dated, document have never been seriously considered. In fact, the mention of even minor changes to that document strikes many as heresy.

Now, when one goes back and reads the statements of those closely connected with the writing of our Constitution one realizes that they themselves thought that the document would be updated and improved from time to time as a matter of course. It was never regarded as written in stone. One merely has to read the Federalist Papers written by Madison, Hamilton, and John Jay to persuade New York to ratify the document, to realize how open to suggestion and change were those who first conjured up the document which was, at the time, designed to keep the colonies together (by allowing such things as slavery, for example) and mitigate against the separatism that was beginning to tear them apart soon after the revolution. One especially concerned spectator who worried that Europe would get the last laugh, and who was determined to prove that the Republic would hold together despite this factionalism, was George Washington who presided over the Constitutional Convention for the four months during which the Constitution was written. He penned a most interesting document to his friend Lafayette, lauding the document and pointing out its merits.

“First, that the general government is not invested with more powers than are indispensably necessary to perform the functions of a good government, and consequently, that no objection ought to be made against the quantity of power delegated to it.

“Secondly, that these powers, as the appointment of all rulers will for ever arise from and, at short, stated intervals recur, to the free suffrages of the people, are so distributed among the legislative, judicial, and executive branches into which the general government is arranged, that it can never be in danger of degenerating into a monarchy, an oligarchy, an aristocracy, or any other despotic or oppressive form so long as there shall remain any virtue in the body of the people.”

Fascinating! What jumps out, of course, is his preoccupation with the limits of governmental power coupled with the presumption, which Washington shared with most of those who helped put the document together, that citizens would act “virtuously” — which was an Enlightenment notion that focused on what was regarded as the natural desire of civilized people to live together, to put the common good above their own private good.  This strikes us today as incredibly naive. But, as Washington saw it, along with brief terms in political office, civic virtue was a necessary condition if the country was to avoid “despotism.”

And it is precisely despotism that has replaced the Republic that the founders had in mind. Whether it was because of the disappearance of civic virtue or the rise of incredible wealth in the hands of a few unscrupulous, greedy men and giant corporations is a moot point. I suspect it is a combination of the two. After all, what is the citizen supposed to do about choosing enlightened leadership when those with great wealth hand-pick politicians who will carry out their own private agendas?

Clearly, as I have noted in previous posts, what we now have in an oligarchy, and it is precisely the type of thing the founders were convinced they had guarded against. A radical alteration of the Constitution curtailing the influence on the wealthy on elections might restore this country to a Republic, but this will never happen as long as those who might engineer those changes see them as threatening their own power and prestige. Washington’s supposition, shared with the authors of the Federalist Papers, that politicians would serve short terms has also given way to career politicians who hold their offices interminably (literally) and, in order to assure themselves of a continuance in office, simply carry out the programs set out for them by those wealthy few who have had them elected and will keep them in office. Thus, while the time is long overdue for radically rethinking the Constitution, it will not happen. Even a necessary first step, such as the adoption of an amendment reversing the Supreme Court’s abortive decision in the Citizen’s United case giving corporations unlimited access to the reins of government, is extremely unlikely. It’s a Catch 22.

 

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Brilliant Idea!

An acquaintance of mine recently urged one of my best friends in the very small rural town in which I live to get a permit and buy himself a weapon. “Everyone is doing it,” he said, including himself and his daughter. I suppose he feels it necessary to be armed to protect himself against would-be terrorists invading rural Minnesota — or, perhaps marauding Vikings. Whatever. Poor, frightened little man. I feel sorry for him. But his kind is becoming increasingly common in this country, as we all know. And these folks feel they have a “right” to carry a weapon because the Constitution tells them so. As I have noted in previous blogs, this “right” is predicated on the necessity of an armed militia to protect home and hearth against attacks from England — or wherever. But only those who actually read the Second Amendment would know that. The framers worried more about a standing army that would threaten states’ rights then they did an armed citizenry.

Indeed, it is the fact that the supposed “right” to bear arms guaranteed by the Second Amendment to the Constitution is predicated on the necessity to have a well-armed militia that is ignored in the frenzy to simply own and be prepared to use the latest assault weapon to protect ourselves against whatever ghosts and goblins might be out there wanting to get us. Americans, more and more of them each day, simply want to own and carry weapons because they are fearful. But in a brilliant chapter in his latest book, Six Amendments: How And Why We Should Change The Constitution, retired Supreme Court justice John Paul Stevens has suggested a re-write of the Second Amendment that would restore it to its original meaning and undermine the terribly weak argument we hear almost daily about the right to bear arms. His re-wording would place the emphasis of the Amendment where it belongs: on the need to have an armed militia, not the supposed right of every Tom, Dick, and Sally to pack heat. In making his case, Stevens notes that “For over two hundred years following the adoption of that amendment federal judges uniformly understood that the right protected by that text. . . applied only to keeping and bearing arms for military purposes.”  That lengthy period was followed by an extensive campaign by the NRA to help the gun manufacturers sell weapons, and this altered the game radically.

The Amendment, as the framers wrote it, states that “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” Stevens suggests a five word insert that would clarify the meaning:” A well-regulated Militia, being  necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.” Positively brilliant.

What this means is that those who have been designated as protectors of the nation, say the National Guard, have a Constitutional right to keep and bear arms — others do not. This is clearly what the founders intended and the way it was understood for 200 years, and if it were written in this fashion it would undermine the arguments of the nutters today who are responsible for approximately eighty-eight firearms deaths every day in this country (30,000 each year) and might possibly open the door to a debate at the highest levels about whether or not there ought to be some sort of restrictions on the sale and use of such things as automatic weapons that are clearly designed to kill people, not wild game. As Judge Stevens points out:

“Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly  would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.”

Organizations like the National Rifle Association would continue to argue for the “right” of everyone and his dog to own guns of every possible variety, but on this re-write of the Second Amendment they would have to base that supposed “right” on something other than the Second Amendment which, as Stevens argues, never did support such license. What the grounds for that supposed “right” might be in the absence of a misreading of the U.S. Constitution one can only imagine; but one can bet guns would continue to be sold to frightened people who really don’t need to pretend they have any sound reasons for simply wanting to own a gun.

Senate Aristocrats

I have been reading a painstaking analysis of the forming of our Republic. It is very long but fascinating. The period before and just after the American revolution has always been a bit hazy for me and it is a relief to have some of the haze cleared away. The eleven years between the signing of the Declaration of Independence and the adoption of the U.S. Constitution were especially remarkable years. The thirteen colonies were all busy writing their own constitutions (while the war was in progress) and struggling with the issues that would face the united colonies later on. One such issue was the “mixed form” of government.

Some of the more radical colonists like Thomas Paine and the authors of Pennsylvania’s  constitution wanted nothing to do with mixed governments; they wanted  a pure Democracy. A great many others distrusted the “people” and wanted what they regarded as the more solid foundation of an aristocracy of some sort to temper and provide balance to offset the “lower” house. This was Jefferson’s idea behind starting up the University of Virginia — to train young men to become future leaders. He was convinced the people at large would recognize exceptional people and elect them to public office. They would form America’s new aristocracy! Other thinkers were not so sanguine, and eventually Jefferson himself began to have doubts. But nearly all were agreed that two houses were essential — with a governor at the head of each colony’s government whose role would be exclusively that of executor of the legislative will. Each house of government would differ from the other in important respects — the lower house, which was similar to the British House of Commons, and the upper house, which they hoped would resemble in important respects the House of Lords. The problem was how to assure that the upper house (the Senate) was not just a mirror image of the lower house — given that America had no aristocracy?

Jefferson and his peers in other states finally decided that even with electoral colleges designed to elect the folks to the upper house (the people themselves couldn’t be trusted) the Senators in the various colonies began to look very much like the representatives in the lower house. But they were convinced that the House of Lords in England lent ballast to the ship of state and it was essential that the colonies have something like that or subject themselves to the rabble running the show — people at large who had no “public virtue,” a quality they thought essential for the common good. How to guarantee that the Senates would be “the best and wisest” — which was their perception of the British aristocracy — and thus more stable than the lower houses?

In the end since there were no natural aristocrats in America — or unnatural ones, as it happened — the various colonies settled on property ownership as the only criterion that could separate the “wiser” officials in government from the rest of the herd. It was clear that these people did not want a King or any royalty. They pretty much tied the hands of their governors and, later, the President. But they didn’t trust the rabble, either. When they settled on property as the criterion for membership in the Senate they did just that: settled. It was the best they could come up with. They rejected birth and were unable to find any criterion that would satisfy other than property to differentiate the upper house from the lower one.

It would appear that it was during this time — these eleven years — that the Americans came to grips with the question of the place of wealth in government. They distrusted great wealth (as I have noted in a previous blog) but they could come up with nothing better to separate the two houses they regarded as essential to a Republic. They understood power and knew full well how easily it could be abused. But they failed to see that wealth would become the greatest power in this country — though Jefferson was leery, noting that “‘Integrity was not in my experience the characteristic of wealth.” Both “he and Madison were baffled by the apparent inability of the people to perceive the truly talented and were thus compelled reluctantly to endorse property as the best possible source of distinction in the new republics.”

By making property the criterion of membership in the Senates of the various colonies — and giving the Senate pride of place in our Constitution later on (note how much of that document is focused on the operation of the U.S. Senate) they opened the door to excessive power in the Senate  (which Henry Adams complained about loudly a hundred years later)  and the ownership of the government itself by the very rich.

[Quotations are from Gordon S.  Wood’s excellent The Creation of the American Republic 1776-1787.]