Skip to comments.Constitution Check: Is devotion to the Constitution destroying democracy?
Posted on 11/12/2013 9:34:16 AM PST by NormsRevenge
Lyle Denniston looks at a claim that interpreting an old document, like the U.S. Constitution, is a doomed attempt to apply outdated legal principles.
THE STATEMENT AT ISSUE:
Professor Neuborne describes this dysfunctional democracy very well, but he does not give the real reason for that dysfunction the reverence for the United States Constitution. Each of the Supreme Courts iniquities he lists is based on the interpretation by five of nine high priests of increasingly irrelevant documents written by wealthy white men in an unimaginably different and distant world.
WE CHECKED THE CONSTITUTION, AND
One of the fundamental issues that deeply divides the nine Justices now serving on the Supreme Court is the proper way to interpret the Constitutions meaning for todays world. Some of the Justices believe that the key is the original meaning of the document that is, as it was understood in 1787. Others believe that the document is a living Constitution that is adaptable to changing times and thus acquires new meaning from time to time.
No one expects that disagreement ever to be finally resolved. At the same time, all of the Justices agree that the Constitution embodies enduring principles, and that it is the duty of judges in this country to apply them. Even a sincere devotion to those principles, though, is bound to produce disagreements about their contemporary meaning.
What is often misunderstood about the process of constitutional reasoning is that the Constitution itself does not provide all of the necessary answers to any legal problem that turns on enduring principles. No document, and certainly no legal document, can always be understood by its literal meaning. Words are means of expressing ideas, and the same words can mean different things to different judges.
(Excerpt) Read more at news.yahoo.com ...
I agree with all of what you said in principle, but, let’s face, the Constitution is simply too difficult to amend with the present rules. With a lower threshold for getting amendments ratified, we wouldn’t have to worry so much about wrongheaded SCOTUS decisions doing it by judicial fiat. And (I’m sure I’ll get flamed for pointing this out, but what the heck) if the Framers were so darned infallable, and the Constitution so ingenious, then why did we have to fight the bloodiest war in our history to settle the slavery issue? And, on a less dramatic note, why have we tolerated a SCOTUS that regularly strikes down federal and state legislation, when that power is not given to it anywhere in the Constitution’s text?
Not since the 17th amendment, which created three term congressmen in the garb of senators. There is no difference between the populist rat demagogues of both the house and senate.
Whatever term one wishes to apply, it should include "democratic."
The Federalists were right . . . we'd be better off if the "Bill of Rights" had never been adopted.
The US Constitution was not written by G-d and does not possess the same impeccability (unless you are a mormon).
Duh, merely a comparison.
I’m not worried about “democracy”. Mob rule stinks anyway. It’s the republic that I’m concerned about. That’s why we need to get back to the Constitution.
The constitution’s original intent is fine for today. If something different is needed, then the appropriate action is to make an amendment to it, and have it ratified, not to invent stuff because it is more modern.
"Posterity! you will never know how much it cost the present generation to preserve your freedom! I hope you will make a good use of it. If you do not, I shall repent in Heaven that I ever took half the pains to preserve it." - John Adams, Letter to Abigail Adams, 1777
"On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.
"The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its components are beautiful, as well as useful; its arrangements are full of wisdom and order...."
-Justice Joseph Story
Justice Story's words pay tribute to the United States Constitution and its Framers. Shortly before the 100th year of the Constitution, in his "History of the United States of America," written in 1886, historian George Bancroft said:
"The Constitution is to the American people a possession for the ages."
He went on to say:
"In America, a new people had risen up without king, or princes, or nobles....By calm meditation and friendly councils they had prepared a constitution which, in the union of freedom with strength and order, excelled every one known before; and which secured itself against violence and revolution by providing a peaceful method for every needed reform. In the happy morning of their existence as one of the powers of the world, they had chosen Justice as their guide."
And two hundred years after the adoption of this singularly-important document, praised by Justice Story in one century and Historian Bancroft in the next and said by Sir William Gladstone to be "the most wonderful work ever struck off at a given moment by the brain and purpose of man," the Constitution of 1787 - with its Bill of Rights - remains, yet another century later, a bulwark for liberty, an ageless formula for the government of a free people.
In what sense can any document prepared by human hands be said to be ageless? What are the qualities or attributes which give it permanence?
America's Constitution had its roots in the nature, experience, and habits of humankind, in the experience of the American people themselves - their beliefs, customs, and traditions, and in the practical aspects of politics and government. It was based on the experience of the ages. Its provisions were designed in recognition of principles which do not change with time and circumstance, because they are inherent in human nature.
"The foundation of every government," said John Adams, "is some principle or passion in the minds of the people." The founding generation, aware of its unique place in the ongoing human struggle for liberty, were willing to risk everything for its attainment. Roger Sherman stated that as government is "instituted for those who live under it ... it ought, therefore, to be so constituted as not to be dangerous to liberty." And the American government was structured with that primary purpose in mind - the protection of the peoples liberty.
Of their historic role, in framing a government to secure liberty, the Framers believed that the degree of wisdom and foresight brought to the task at hand might well determine whether future generations would live in liberty or tyranny. As President Washington so aptly put it, "the sacred fire of liberty" might depend "on the experiment intrusted to the hands of the American people" That experiment, they hoped, would serve as a beacon of liberty throughout the world.
The Framers of America's Constitution were guided by the wisdom of previous generations and the lessons of history for guidance in structuring a government to secure for untold millions in the future the unalienable rights of individuals. As Jefferson wisely observed:
"History, by apprising the people of the past, will enable them to judge of the future; it will avail them of the experience of other times and other nations; it will qualify them as judges of the actions and designs of men; it will enable them to know ambition under every disguise it may assume; and knowing it, to defeat its views."(Underlining added for emphasis)
The Constitution, it has been said, was "not formed upon abstraction," but upon practicality. Its philosophy and principles, among others, incorporated these practical aspects:
Recognition that love of liberty is inherent in the human spirit.
Recognition of Creator-endowed, unalienable, individual rights.
Recognition that meaningful liberty is possible only in the company of order and justice. In the words of Burke: "Liberty must be limited to be possessed."
Recognition that in order for a people to be free, they must be governed by fixed laws that apply alike to the governed and the government.
Recognition that the Creator has not preferred one person or group of persons as rulers over the others and that any government, in order to be just, must be from among the great body of the people and by their consent - that the people have a right to self-government.
Recognition of human weakness and the human tendency to abuse power; therefore, of the need to divide and to separate the power granted to government; to provide a system of checks and balances; and to make government accountable to people at frequent intervals.
Recognition that laws, to be valid, must have their basis and limit in natural law - that law which, as Cicero wrote, "is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite."
Recognition of the need for structuring a government of laws, not of men, based on enduring principles and suitable not only to the age in which it is formed, but amendable to different circumstances and times, without sacrificing any of the three great concepts of Order, justice, or Liberty.
Recognition that the right to ownership of property is a right so compelling as to provide a primary reason for individuals to form a government for securing that right.
Recognition of the need for protecting the individual rights of each citizen, rich or poor, majority or minority, and of not allowing the coercive power of government to be used to do collectively that which the individual could not do without committing a crime.
Recognition of necessity for incentive and reward as impetus for achievement and growth.
Recognition of the need for a "Supreme Law of the land" a written constitution which, consistent with its idea of the sovereignty of the people, would provide its own prescribed amendment process, thereby circumventing any potential unconstitutional changes by any of the branches of government without the people's consent.
The Constitution of the United States of America structured a government for what the Founders called a "virtuous people - that is, a people who would be able, as Burke put it, to "put chains on their own appetites" and, without the coercive hand of government, to live peaceably without violating the rights of others. Such a society would need no standing armies to insure internal order, for the moral beliefs, customs, and love for liberty motivating the actions of the people and their representatives in government - the "unwritten" constitution - would be in keeping with their written constitution.
George Washington, in a speech to the State Governors, shared his own sense of the deep roots and foundations of the new nation:
"The foundation of our empire was not laid in the gloomy age of ignorance and superstition; but at an epocha when the rights of mankind were better understood and more clearly defined, than at any former period.... the treasures of knowledge, acquired by the labors of philosophers, sages, and legislators, through a long succession of years, are laid open for our use, and their collective wisdom may be happily applied in the establishment of our forms of government."
And Abraham Lincoln, in the mid-1800's, in celebrating the blessings of liberty, challenged Americans to transmit the "political edifice of liberty and equal rights" of their constitutional government to future generations:
"In the great journal of things happening under the sun, we, the American people, find our account running ... We find ourselves in the peaceful possession, of the fairest portion of the earth....We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us. We found ourselves the legal inheritors of these fundamental blessings. We toiled not in the acquirement or establishment of them - They are a legacy bequeathed us, by a once hardy, brave, and patriotic...race of ancestors. Theirs was the task (and nobly they performed it) to possess themselves, and through themselves, us, of this goodly land; and to uprear upon its hills and its valleys, a political edifice of liberty and equal rights, 'tis ours only, to transmit these...to the latest generation that fate shall permit the world to know...."
Because it rests on sound philosophical foundations and is rooted in enduring principles, the United States Constitution can, indeed, properly be described as "ageless," for it provides the formula for securing the blessings of liberty, establishing justice, insuring domestic tranquillity, promoting the general welfare, and providing for the common defense of a free people who understand its philosophy and principles and who will, with dedication, see that its integrity and vigor are preserved.
Justice Joseph Story was quoted in the caption of this essay as attesting to the skill and fidelity of the architects of the Constitution, its solid foundations, the practical aspects of its features, and its wisdom and order. The closing words of his statement, however, were reserved for use here; for in his 1789 remarks, he recognized the "ageless" quality of the magnificent document, and at the same time, issued a grave warning for Americans of all centuries. He concluded his statement with these words:
"...and its defenses are impregnable from without. It has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are created by virtue, public spirit, and intelligence of the citizens."
Our ageless constitution can be shared with the world and passed on to generations far distant if its formula is not altered in violation of principle through the neglect of its keepers - THE PEOPLE.
Our Ageless Constitution, W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates, 1987) Part VII: ISBN 0-937047-01-5
Well, we ceased being a federal republic a hundred years ago. With the 17th Amendment we became a democratic republic, and doomed to a totalitarian fate. The framers never considered two popularly elected houses of the legislature, nor the political Frankenstein called the US senate. Six year popular terms? No way!
They knew very well from experience that overly democratic governments were dangerous to liberty.
The 17th amendment must go . . . or else.
Thanks for posting that.
There are two particular items, vital to freedom, and on which the constitution is based:
the right to property, and the rights of the minority against the majority. These ideas are essential to freedom.
Democracy, in which the “good of the people is paramount”, is just an intermediate step toward fascism.
Now one thing these “reformers” might want to consider: if the constitution is obsolete, then so is the Union. Secession anyone?
I can see after perusing several responses I would be preaching to the choir so let me part with this from the Constitution.
Article 1. Section. 4. The United States shall guarantee to every State in this Union a Republican Form of Government
One major purpose of the Constitution was to establish LIMITS to democracy. That way, 51% of the voters could not vote to send the other 49% to the gas chambers.
With Democracy being one of the many forms of collectivism (and the Founding Fathers hated) that have been tried around the world and failed, we should look to the upcoming holiday of Thanksgiving as a celebration of the repudiation of it.
John Stossel: Socialism Almost Ruined Thanksgiving
Thanksgiving: Overcoming Socialism
The Pilgrims and Property Rights: How our ancestors got fat & happy
The 16th and 17th amendments ruined the original intent. The Progressives planted the seeds of destruction 100 years ago.
1. 4. Section. 4. The United States shall guarantee to every State in this Union a Republican Form of Government
A lot of ‘things’ happened about the same time .. the creation of the Fed and the progressive income tax come to mind as well,, what followed? a war, a depression, a war, hmmmmm ..
looks like the progre$$ives be seeing their chickens come home to roost, on our dime.
I find it difficult to be patient with this sort of criticism because there really isn't any substance in it. What sort of things does this commentator think "irrelevant"? That the federal government should consist of three parts whose functions and interrelations are laid out in the first three Articles? There's nothing dated in that, it's as spare and timeless as a mathematical proposition. As such, does it matter in the least whether it was written by rich (they weren't) white men or impoverished Hottentots? It's a plan. That's all it is.
Moreover, it is a perfectly changeable plan no matter when you happen to be living so long as you follow the Amendment procedure and have votes sufficient to swing it. Very little about it is etched in granite. And 1787 is hardly an "unimaginably different and distant world". By historical standards, it's yesterday. And there is little mystery to which principles the document was intended to encompass because its authors took considerable pains to set them down.
I think the real unwritten objection to the Constitution in the eyes of these critics lies not in how it's written but what it really is: an inconvenient limitation on the powers of the federal government. Such limitations are a bar to ideologues who scratch or con their way into political office and conclude that gives them the ability to do whatever the hell they please, the sitting administration being a case in point.
In fact, the ones baying most loudly about the "irrelevance" of the document appear to be the ones whose aims are most hindered by its existence: the statist, the autocrat, the tyrant, the totalitarian. That was as true in 1787 as it is today. The intention to rule is truly timeless, and what must be protected is the bounds drawn out to it by free men and women.
"Running the country" was probably "running the war machine."
I recall reading David Brinkley's book "Washington Goes To War," in which Brinkley recalls how Washington DC grew from a sleepy swamp town into the center of government that it is today because of WWII.
Once the war was over, all those bureacracies had to find something else to do.
In all fairness, the founding fathers did not operate in a vacuum, and were very familiar with history.
This changes the value of the argument to “We know more about the philosophy of government than did the founding fathers *and everyone else* going back to before Alexander the Great.” All told, political philosophy has been in detailed development for at least 3,000 years.
Remember it is the ancient Greeks who first developed the formal concept of democracy. ‘Demokratia’ “popular government,” from ‘demos’ “common people”.
But industrialization changed all that, right? Hardly.
So when you examine the political philosophy of the constitution, it is easy to ignore the trappings of the times and see the obvious conclusions within, that are just as true today as they were then, a modest 250 years ago.
To start with, after 1500 years of royals brawling with each other, it was pretty easy to conclude that government no longer needed a noble class. This means that “the people” rule the government.
Importantly, the nobles had always claimed that their right to rule had come from heaven, so their laws were also certified by heaven, and anybody who rejected them were not just criminals, but sinners.
So the founding fathers were clear that the constitution was written by men, for men, and could be changed by men without annoying heaven. This is all the separation of church and state really amounted to, not purging religion from government.
Next, they well knew that any rules or laws put to paper will be evaded before the ink is dry, so the way around this was to create competing bodies of people, with somewhat different motivations, who could veto other groups in a balanced way. Thus the constitution has a bunch of these balances set up.
Not just the three branches of government; but the balance between the national government, the state governments, and the people; the balance between populous and small population states; the only truly democratic body being the house of representatives, with the states appointing senators and the electoral college selecting the POTUS, who appoints federal judges, with the approval of the senate, and thus the states, again.
They were also smart enough to make the legislative process contentious and difficult, so that the default is that new laws will fail. It is better to have no laws than bad laws.
Enter the Progressives. Arrogant, self-important and ignorant, they are filled with themselves and always believe they are smarter than thousands of years of people who lived before.
They are caught up in the arrogance of adolescence. That their ideas are better, and that everyone just needs to get out of their way for them to prove it. They have nothing but contempt for history and knowledge, and insist that a simple to understand wrong idea is always better than a complex and articulate plan carried out over years.
Yup. Of course, the nation-state itself evolved in Europe for the very simple reason that it was apparently the most effective type of government for waging war. Political entities that were less effective disappeared.
IMO it was probably necessary to have a powerful central government to wage WWII and the Cold War. As can be seen by considering the consequences of losing either of those wars. What killed us was that the Cold War was so long that we got used to a big government.
With respect to the two words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators. If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions. The powers delegated by the proposed Constitution to the federal government are few and defined . . . to be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.” “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”
— James Madison, the father of the U.S. Constitution, fourth U.S. President
Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.
— Thomas Jefferson, third U.S. President
Mr. Speaker: I have as much respect for the memory of the deceased, and as much sympathy for the suffering of the living, if there be, as any man in this House, but we must not permit our respect for the dead or our sympathy for part of the living to lead us into an act of injustice to the balance of the living. I will not go into an argument to prove that Congress has not the power to appropriate this money as an act of charity. Every member on this floor knows it. We have the right as individuals, to give away as much of our own money as we please in charity; but as members of Congress we have no right to appropriate a dollar of the public money.
— Congressman Davy Crockett
I cannot find any authority in the Constitution for public charity.
— President Franklin Pierce
I never met General Welfare, tho I have heard of his many exploits. Much as McClellan muddied the Civil War for both sides , it seems Welfare has a bit of mud as well.
I hear next to nothing of our good fellow General Welfare, graduated the same class as Custer or so I may have heard uhhhh,, I only hear of his successes , Social Security, Medicaid, Medicare, The Great Society, A New New Deal,, iPhone, GUbamint chess in a squeeze tube..
Who knows what will be the legacy of a GUbamint and a masses of people who could fail so miserably and yet, feeeeel so goooood about themselves?
Just look to the past.. And not as some would. Forward.
de Tocqueville facepalm
Good column. Thanks.
Well, “destroying” isn’t quite the right word, but the Constitution was meant to PREVENT the degree of democracy that would let transient majorities of stupid or malevolent people vote away MY rights (or at least the legal protection for them). This moron’s first paragraph illustrates perfectly why that protection is a really good idea.
I don’t want to flame, but on the point of Slavery, remember that Slavery was then a tolerated human institution, as it had been from the beginning of recorded history; present and accepted in every civilization and age. We see its evil now and consider it obvious, but that’s more hindsight than innate wisdom.
The Constitution is our fundamental document, our rulebook. It is the greatest political document, in conjunction with the Declaration, ever conceived by man. We’d have a much stronger republic (not “democracy”) if we followed it more closely.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.