Constitution Day, 2019

On this Constitution Day, we offer a few reflections on the many doubts our founders faced and how they dealt with their distrust.

When thinking about if and how to reshape the Articles of Confederation, our founders had many doubts mostly centered on distrust – distrust born of English and European history, mistrust of each other, and mistrust of new forms of government.  Here are some of the issues on their minds: 

  • A new federal government might become too powerful. In particular, the presidency could become a monarchy. A president might become tempted to start wars or subjugate the people if allowed to keep a standing army. Perhaps the president or other officials would be influenced by foreign powers.
  • The government could become a tyranny of the majority. Some faction might  unfairly dominate everyone else’s interests, perhaps to the point where they were permanently entrenched.
  • The courts might be a useful check on the powers of congress and the presidency or, alternatively, the courts might become too powerful.
  • A new federal government in a territory as large as the 13 colonies might become too distant from its citizens.
  • The larger population of the poor might dominate the minority wealthy land-owning class.
  • The large population colonies might dominate the smaller colonies.
  • How should the interests of enslaved people be handled?

Distrust remained a feature in the evolution of our Constitution long after the founding era. There were worries about the expansion of the vote beyond land owning white men to all white men, to formerly enslaved people, to women, and to the indigenous population. There were many who uncomfortable about extending full political and civil liberties to people of color – and many people of color who couldn’t trust a government that denied them the rights guaranteed everyone else.

The founders, and those who came after them, managed to address the vast majority of their fears by combining just a few institutional building blocks. These building blocks include accountability through elections and the courts, fairness, and constrained powers.

  • Accountability: Leaders have an incentive to align their interests with ours when they know we can hold them accountable.
    • Elections are opportunities to better align the interests of our governing officials with our own interests – we can select those most likely to serve our interests and we can choose not reelect those who have served us poorly.  Elections also create a motivation for elected officials to try their best for us – if they believe the only path to power is through free (inclusive) and fair elections.
    • The ability of citizens to monitor candidates and elected officials is helped by the 1st amendment protecting freedom of the press (media). 
    • Government officials also need to believe they will be caught and punished through the court system for any attempts to gain or hold power by means other than free and fair elections.
  • Fairness:  Concerns about fairness seem to be hard-wired into all of us. 
    • State’s rights were a constant concern from the very beginning. The framers responded with the 10th amendment of the Bill of Rights, reserving for the states all powers not delegated to the people or the national government.
    • The gradual extension of voting rights through constitutional amendments and the 1965 Voting Rights Act increased the degree of fairness in the system.  We are now battling over the fair administration of those voting rights including fights over gerrymandering, registration, and location of polling places.  If voting becomes still more free and fair, then the composition of Congress and our state legislatures will more accurately represent our citizenry and needs.
    • Providing all citizens with political and civil rights helped reduce discrimination.  Examples include the Bill of Rights and incorporation of the 14th Amendment which guaranteed citizenship and all of its privileges and immunities to everyone born in the U.S. or naturalized to it.
  • Constraints on government power:  The founders addressed fears of tyranny in multiple ways.
    • Power is constitutionally constrained only to those powers expressly delegated by the Constitution. Article 1 assigns the power to legislate only to Congress (the Legislative branch) and assigns enumerated powers in section 8. Article 2 assigns the power to execute the law only to the presidency (the Executive branch). The power to adjudicate between the legislative and executive branches is assigned by Article 3 to the Supreme Court.
    • Article 1, section 7, gives the president the power to veto legislation unless both houses of Congress can overcome the veto with a two-thirds or better vote.
    • The power of Congress is constrained by dividing it into a House and Senate, with the House representing the population, and the Senate representing the states. 
    • Presidential entrenchment is expressly ruled out by the 22nd amendment limiting presidents to two terms in office.
    • The federal government is explicitly prohibited from using the courts to persecute people.  This is most notably reflected in the 4th, 5th, 6th, 7th, and 8th amendments in the Bill of Rights.
    • The list of rights in the Constitution is not meant as a limit:  the 9th amendment included in the Bill of Rights is clear that the people have rights beyond those listed in the Constitution.
    • Finally, the framers made it hard to abuse these constraints by arbitrarily changing the constitution: Article 5 states that amendments require a two-thirds majority of both houses of Congress or a constitutional convention mandated by at least two-thirds of the states with results ratified by state legislatures or state conventions in at least three-quarters of the states.

The bottom line is that the framers came up with a Constitution that allows people who distrust each other to work productively together in pursuit of their own happiness – but only if the principles of accountability, fairness, and constrained power are respected and enforced. 

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