15-July-2005 commentary: Constitution = holy?

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In this week's Commentary at http://www.randi.org/jr/071505on.html, Randi writes:

The Constitution of the United States of America was designed to protect the minority from any tyranny put forth by the majority, and to guarantee to all citizens such things as life, liberty, and the pursuit of happiness.

I'm afraid I have to take exception to this, on two fronts:

First, a minor nitpick: Although the Declaration of Independence uses the phrase "life, liberty, and the pursuit of happiness", that phrase exists nowhere in the U.S. Constitution. (However, I can understand how someone might feel that that sentiment was carried over into certain parts of the Constitution, so this isn't really an error.)

Second, though, is a deeper concern I have that the Constitution is being viewed as something more than it actually is.

In 1987, Frederick Edwords warned of the dangers of Americanism, the elevation of our Founding Fathers to the status of godhood and the various founding documents to the status of holy writ. Despite Randi's normal eschewing of religion and religious-like doctrines, the quotes sentence above seems to treat the U.S. Constitution as some kind of "sacred document", or at least gives it more credit than it deserves.

The Constitution was not designed to protect the rights of the citizenry. It was designed, first and foremost, to provide for a more powerful central government among the 13 original States. In that vein, it was designed to protect any minority of the States from the tyranny of the majority of the other States, by instituting checks-and-balances between the branches of the new central (or Federal) government and by delegating only certain powers to that Federal government.

Now, when this new Constitution was submitted to the States for ratification, some of the states felt that these protections didn't go far enough. These states were only willing to ratify the new Constitution if additional limitations on the Federal government's power over individuals were added as Constitutional Amendments. 12 new Amendments were immediately proposed, and the 3rd through the 12th of these proposed Amendments were soon ratified (the 2nd of the 12 proposed Amendments was eventually ratified in 1992). It was these 10 Amendments that are now known as the Bill of Rights.

It must be emphasized that this Bill of Rights was originally seen as a limit on Federal power only, not on State power. Even the vaunted First Amendment, on its face, only restricts the lawmaking power of Congress, not the lawmaking power of the various State legislatures. States were free to abridge the freedom of speech and of the press, to have official State religions, etc., all they wanted to. It wasn't until a century later that the Federal courts decided that the 14th Amendment caused some (but not all) of the protections spelled out in the Bill of Rights to also limit State lawmaking power.

In short, although the Constitution as interpreted today does indeed protect a minority of individuals from the tyrrany of the majority of individuals, at both the Federal and the State-and-local level, it was never designed to do so. To suggest otherwise is to elevate the Constitution to the level of something "sacred", something that embodies all the governmental good and eschews all the governmental evil that exists in America today.

 

[Soapy Sam]

Very interesting. Thanks for that.

 

[drkitten]

The Constitution was not designed to protect the rights of the citizenry. It was designed, first and foremost, to provide for a more powerful central government among the 13 original States. In that vein, it was designed to protect any minority of the States from the tyranny of the majority of the other States, by instituting checks-and-balances between the branches of the new central (or Federal) government and by delegating only certain powers to that Federal government.

I think I disagree with you, on the basis of the text itself:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

I think this is a pretty good statement about the ultimate aim and plan of the Founding Fathers. Notice that the "States" as individual entities aren't even mentioned. The United States is specifically established in the name of the "People" "to "secure the Blessings of Liberty" (which I would consider, especially in the context of the Founders' political philosophy, to include basic inalienable rights) to the people themselves.

The rest of the document then describes how this idealistic goal is to be achieved, using the existing state goverments as a framework. The Founders' were typically not worried about the State governments becoming tyrannical, and didn't consider that they had the authority to force structural changes on the State governments through the new Federal constitution.

The argument that the Constitution wasn't designed to protect the basic rights of the citizens was discussed more or less explicitly by Publius (Alexander Hamliton, Federalist Paper No. 84):

The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.

To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions.

He then lists a number of fundamental rights -- rights so fundamental that people don't even think of them any more, such as the Great Writ (habeas corpus), [Article I, section 9, clause 2] : "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

I think that Randi's original statement was pretty well spot-on in terms of the Founders' goals.

 

[crimresearch]

I fail to see how Randi's quote elevates the Founder/Framers to 'godhood'.

And without implying any omniscience on their part, I'm pretty sure that when they drew up the Consitution, they just somehow knew when giving the individual states a balance of power with a central federal government, that there were actually *people* living in those states.


But I did like the article cited, thanks for providing it.

 

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I think this [the preamble to the U.S. Constitution] is a pretty good statement about the ultimate aim and plan of the Founding Fathers. Notice that the "States" as individual entities aren't even mentioned. The United States is specifically established in the name of the "People" "to "secure the Blessings of Liberty" (which I would consider, especially in the context of the Founders' political philosophy, to include basic inalienable rights) to the people themselves.

It's also established to "insure domestic tranquility" and "provide for the common defence". As you no doubt recall, two major issues that faced the fledgling nation under the Articles of Confederation were:

1. States weren't paying their portion of the property tax bill ordained by the AoC. (This tax was to be used to fund the continental army, that is, to "provide for the common defence".) However, the central government had no real power to enforce the collection of that tax. And:
2. Riots were breaking out to the point where the AoC Congress was under siege, thereby threatening "domestic tranquility".

The Constitutional Convention was called to address those issues and a few others. Most of the attendees thought they'd just be hammering out a few amendments to the AoC -- it came as a complete surprise that a rather geeky constituent named James Madison had single-handedly drafted an entirely new Constitution with a bicameral legislature, checks and balances, and many of the other Constitutional goodies we've come to know and love.

Ultimately, though, it is important to remember that the Preamble has no legal force. It's only the seven Articles of the Constitution, and the subsequent Articles of Amendment, that have any governmental standing. The Preamble did to some extent reflect the goals of the Framers, but it also served as a good advertising slogan to make the States more agreeable to the surrendering of some of their powers.

The rest of the document then describes how this idealistic goal is to be achieved, using the existing state goverments as a framework. The Founders' were typically not worried about the State governments becoming tyrannical, and didn't consider that they had the authority to force structural changes on the State governments through the new Federal constitution.

Nevertheless, forcing structural changes on the State governments was exactly what the Federal constitution did. States could no longer issue their own currency. States no longer had any authority in matters of foreign relations. States no longer had any of the powers that Article I, Section 8 reassigned to the Congress.

Publius (Alexander Hamliton, Federalist Paper No. 84) ... then lists a number of fundamental rights -- rights so fundamental that people don't even think of them any more, such as the Great Writ (habeas corpus), [Article I, section 9, clause 2] : "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

... a right which the Constitution, once again, only protected at the Federal level, not the State level. (c.f. http://caselaw.lp.findlaw.com/data/constitution/article01/46.html#1 , second paragraph.)