Page Two: Sluggish by Design

The only 'original intent' of the Constitution was to foil extremism and maintain a balance of power

Page Two
It is time to resume discussing the Constitution of the United States, especially in light of the recent elections. Reading and re-reading the Constitution, reviewing The Federalist Papers, and studying the period has led to certain thoughts. First, I want to make it clear that I've read none of the many scholarly legal texts on the Constitution, and the histories I have read were of the most basic type – by no means more in-depth than a high school text.

The gatherings that led to the writing of the U.S. Constitution were initially discussions about revising the Articles of Confederation, which had proven insufficient. Under the Articles, each state was more or less sovereign, with any action involving two states or more requiring real negotiation. Thus, governing a country of 13 basically independent states, loosely joined as one nation, was proving impossible. Issues like foreign and interstate diplomacy and trade, as well as the status of the unclaimed Western territories, presented major problems. According to the Articles, both the federal government and the states were able to mint money, which created substantial confusion. States were responsible for taxation; the federal government had to ask for monies from each of them, and this money was rarely provided. Measures passed by Congress had to be approved by nine of the 13 states, but even then, there were no means by which to make the states comply with them. The government was very much dependent on the willingness of the various states to carry out its measures. Unfortunately, states often refused to cooperate.

The Articles were also virtually impossible to amend, so problems could not be brought up, much less corrected.

Nonetheless, the original gatherings began very specifically as an attempt to improve the Articles. Obviously, some who participated were dead-set on maintaining a confederation. Some supported the Articles just as they were, while still others understood some change was necessary but opposed any radical restructuring. There were also quite a few who were willing to begin by discussing the Articles, but all along, their real goal was a federal government, based upon a constitution. Eventually, the Articles' flaws proved too great to mend, and instead a federalist constitution was drafted.

The U.S. Constitution does three basic things: It defines the branches of government and delineates their responsibilities, it sets the process and procedures by which the federal government operates, and it sets some policy. Article I describes the powers, responsibilities, and some of the limitations on the three branches of government; Article II is about the president and Congress; Article III is about the judiciary.

The most important governmental strategy, as mandated by the Constitution, is a system of checks and balances. In describing the various powers and responsibilities of each branch, the Constitution also clearly articulates how each branch has the right and responsibility to question, challenge, or annul what another branch has done. The president can veto legislation passed by Congress. Congress can override the veto and, in extreme cases, impeach executives. Article III invests judicial power in the Supreme Court, noting in Section 2 that "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made."

Is the Constitution a Living Document?

Just reading the Constitution makes it clear that it is a living document and was so designed. One of the problems with the Articles was that there was no mechanism for amendment, meaning they were set as in stone. Thus, Article V of the Constitution gives both the Congress and the states the right to initiate amendments. This is made very difficult to accomplish, but it is an option.

The document also spells out the rights of Congress in regard to regulating its own members. In Article I, Section 5 it states: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own members." It goes on to give each chamber the right to punish, and even expel, members.

As regards impeachment, the process is very carefully explained. The impeachment process and responsibilities are laid out in Article I, Section 2 and Section 3. Article II, Section 4 states, "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

This obviously allows the Constitution to be changed, as well as empowering different branches of government to assess elected officials on an ongoing basis.

Not only was an amendment process included in the document, but within a year of the Constitution's being ratified (June 1788), James Madison introduced the first 10 amendments to the Constitution. This was a compromise made with the Anti-Federalists in order to get the Constitution approved. Nervous about a too-powerful central government, the Anti-Federalists wanted the rights of citizens clearly spelled out. In December 1791 these amendments, known as the Bill of Rights, were ratified.

Demonstrating how the Constitution has been changed over the years as social, cultural, and political realities evolved is part of Article I, Section 2. There it states, "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding the whole Number of free persons, including those bound to Service for a Term of Years and excluding Indians not taxed, three fifths of all other persons."

This recognizes the rights of citizens, including indentured servants. Although slavery and race are not mentioned, it just as definitely and pejoratively relegates slaves to noncitizen status. The rights of women are not mentioned. Since the Constitution was passed, slavery was ended, and minorities and women have been given the vote.

Original Intent

As with other cherished terms, such as "judicial activism," "original intent" is a bogus concept used when one is catering to one's prejudices while appearing to objectively follow some greater, prescribed standard.

What is meant by "original intent"? Given the truly contentious nature of the Constitutional Convention, the only area that manifests a clear original intention is process. Working out the Constitution was extremely contentious, with numerous factions squaring off: Federalists vs. Anti-Federalists, Southerners vs. Northerners, anti-slavery vs. pro-slavery contingents, states' rights proponents vs. those who advocated a strong central government, big states vs. small states, and farmers vs. city dwellers. Hammered out in endless negotiations, the Constitution offers dozens of bitterly argued compromises.

Keep in mind that most Americans at that time had left Europe, many literally fleeing from different regimes. The states had just finished a rebellion against the king of England. In most European countries, the aristocratic class was either figuratively or literally above the law. Power, class, and authority, for the most part, were vested in men and women by blood. The king or queen could capriciously change his or her mind. Often, lower nobility still had absolute rule over their territories. Americans had experienced such frustration that they eventually revolted against King George III's rule because they had no representation and no system to appeal laws imposed upon them.

The core idea of the Constitution, then, was to provide a representative government for a constitutional republic with three branches, the power and authority of which was constructed into elaborate clockworks of checks and balances. As much as some of the founders didn't trust government, they trusted men less. They were looking for rules based on laws and not on blood. Ideally, it was better the government didn't move than move too quickly, dominated by too few.

Some of them were strong advocates of democracy, while others didn't trust it at all. This country is not a democracy. According to the Constitution, decisions are not and should not be made by the majority. Government is supposed to mitigate public fervor and demand. The notion was not to disenfranchise the people but to have government removed from the heat of the moment. Ideally, people of principles, who would do what's best for the country, would be elected. It was specified that senators would be elected for six years, presidents for four years, and Supreme Court judges for life, so they would very much not be influenced by the sweeping passions of the day, allowing them to take a more reasoned view.

So the notion of original intent, among all these conflicting interests and factions, is ridiculous – except when it comes to this painful, awkward process that pits different branches against one another with an elaborate set of checks and balances. The framers didn't trust one another and were in extreme, sometimes violent, disagreement. What they wanted was a government that responded to the people but that couldn't move too quickly or be dominated by one set of ideas.

People on both the left and right are talking about the Constitution being outdated. Some want more democracy, some want even less. I find the Constitution's ideas about government, given the reality of humans, about as brilliant as seems possible. Ideally, almost all the American people should be unhappy with the federal government almost all the time, because the emphasis is on compromise, as well as on blockading and derailing any kind of ideological purity or dominance. It is not just one of those – but both – that is critical.

There are constant complaints about how the government is broken, has been taken over by special interests, and ignores the will of the people. Actually the government largely functions as it should, creating frustration in every direction – which is healthier than if it moved too smoothly and brought satisfaction and joy to only part of the population.

A lot of ranting against government occurs when it is operating at its best, trying to accomplish what is good for the entire community, despite the passions of the day.

This is one of the reasons I'm against almost all recall elections, the whole notion of citizen propositions, and, especially, way-too-casual impeachment of the president of the U.S. (There are disingenuous fools out there who can go on all day about President Clinton's impeachment having to do with his being an officer of the court, yet committing perjury and obstruction of justice. To those people I say, "Go to hell!" The reality is that, as part of a $50 million-plus investigation into a land deal in Arkansas, they chanced upon Monica Lewinsky and – though she had nothing to do with their investigative charge – they questioned the president about her. The subsequent impeachment of the president absolutely violated the original intent of the Constitution.)

There are those who argue against an independent judiciary, decry the lack of ideological backbone of elected officials too willing to compromise, and are in favor of disenfranchising those with whom they disagree, denying the ideological minority a role in government, restraining an independent press, and limiting freedom of speech. Regardless of how those folks label themselves, they stand in opposition to the Constitution. It seems, in fact, that most people in this country, even those who cite it the most, consider the Constitution a Rorschach test justifying their specific beliefs. What the Constitution does is empower the people you disagree with as much as it empowers you, and any frustration you feel is an indication that it is working.

Clearly, one can be dissatisfied with the government because it is corrupt or has abandoned its principles. Just consider the Bush administration, which has brutally violated an extraordinary range of specific provisions and clear intentions of the Constitution. This was done in the name of the "Constitution" itself, as often as it was purported to be for national security. Mostly, however, it was just political bullying of the worst sort. Obviously, there are legitimate discontents with our government. But as often as not, when you hear profound complaints from the left or the right, progressives or reactionaries, Naderites or right-wing talk-radio fans, conspiracy theorists of every stripe, and just common citizens, what they are really complaining about is constitutionally based government. They may cite the Constitution, the founding fathers, the Bible, and/or the Magna Carta, but the real complaint is almost always about their ideas not having legislative pre-eminence. Which is exactly how the Constitution of the United States of America was designed to work. end story

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U.S. Constitution, Constitutional Convention, Articles of Confederation, Bill of Rights, original intent, states' rights, The Federalist Papers, James Madison

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