The Failure of the Founders of The US Constitution
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By Larry W Davis
Several years ago I began to feel overwhelmed by all the reports coming from Washington, especially the magnitude of deficit spending and I decided to get involved. While reading the 'Five Thousand Year Leap', I began asking myself if the Founders may have overlooked something in the U.S. Constitution which may have prevented us from veering so far off track. It inspired me to explore further into the teachings of some of the early political philosophers and Founding Fathers. Let us look at what I discovered.
The treatise of the Founders of the U. S. Constitution are insightful testaments to the credence that they acknowledged and understood human nature and Nature's Law; but the divide currently observed in the general public provides evidence they failed to act upon one or more of these basic principles. To better appreciate this presumptuous proposition, I advocate an examination of a number of their convictions and the prevailing circumstance of the time. While some of the information will be a review, the justification for requesting your time is to introduce you to a number of concepts and historical events that I found absent in the education I received from public institutions.
The thirteen colonies that declared independence from the British Empire were in effect separate and independent nations. They did not begin as "The United States of America" and few were in favor of joining together under a single system of government. The Articles of Confederation which bound their alliance was approved by The Continental Congress in 1777; but it was little more than a "Committee of the States" with little influence and a complete absence of power to levy taxes. Its authority was undermined and contingent upon support brought about by the limited agreements among the states. Lack of proper funding for the military during the Revolutionary War and the failure to manage civil disobedience such as Shay's Rebellion revealed the necessity of a more influential and powerful administration.
Mindful of the trepidation of aggressive centralized power in conjunction with the requirement to enrich the Articles of Confederation and advance the coalition, delegates to the Constitutional Convention assembled in 1787 to explore the alternatives availed them. Equipped with the scholarly teachings of Polybius, Cicero, Locke, Montesquieu and others, they began their deliberations. To better understand the task assigned them, we must study the nature of the different forms of government from which they might choose; and examine the established societies amid the divergent colonies.
Our first task is to agree upon the definition of government and for what purpose it serves. Although it may be a little difficult to grasp, I introduce to you, John Locke's opinion in 'The Two Treatises of Civil Government', "To understand political power right,... we must consider, what state all men are naturally in... a state of perfect freedom to order their actions, and dispose of their possessions as they think fit... without asking leave, or depending upon the will of any other man... A state also of equality, wherein all the power and jurisdictionis reciprocal, no one having more than another... that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions". "Political power, then, I take to be a right of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common-wealth from foreign injury; and all this only for the public good".
I advocate that every man is the ruler of his own dominion and that without interaction with other men he has no need of government; but when men gather together in societies, it is necessary to create statutes that govern the dealings among them.
Polybius introduced the theory that there exist six distinctive natural forms of government: despotism, monarchy, oligarchy, aristocracy, democracy andmob-rule (anarchy). An examination of these styles of government identified by Polybius will quickly classify three as unsatisfactory options when one considers a new constitution. However, before we eliminate these unacceptable choices from our inventory, I summit to you the similarity of attributes associated with these oppressive forms. In each instance, the virtue and morality of the sovereign is diminished to the extent that greed and covetousness become the motivating factors of behavior and force is the only way to retain power. It may also be observed that the converse of this proposal holds true for the remaining alternatives. The sovereign are obliged to maintain higher levels of nobility, sincerity and decency to sustain the esteem necessary to safeguard the administration and the citizens. It is also confirmed by the testaments of many historians that a democracy requires exemplary levels of morality in the sovereign. Baron de Montesquieu may have stated this best in 'Spirit of the Laws' with, "When virtue is banished, ambition invades the minds of those who are disposed to receive it, and avarice possesses the whole community".
To survive and remain prosperous, the most sacred principle that any government must recognize and hold fast is the protection of, or the complete domination and control of religious conviction; no government has long survived when it takes the middle road on this issue. Human nature does not appear to tolerate a "little" interference from government where freedom of religion is practiced. Nothing turns man's thoughts from the ballot box to the ammo box more quickly than attempts to suppress his theological beliefs.
Other principles acknowledged by cohesive nations are: governments do not grant human rights, these rights of liberty are granted at birth; each power delegated to government requires the surrender of one or more of these individual liberties. Government must hold the admiration of a majority of the people; it must strive to protect their interest and wellbeing; and not the promotion of its own subsistence.
The only reasons for government to exist are: to create laws or regulations that protect the safety of the citizens, promote the general wellbeing of society and provide for the common defense while seizing as few individual liberties from the people as necessary. It is as simple as that; there are no other essential duties governments need perform. Coinciding with these, it is necessary to impartially generate just enough revenue to carry out these duties as efficiently as possible without overdue burden on the people.
Keenly aware of the acceptable forms of natural governments and cognizant of the undesirable aspects of monarchies and aristocracies the founders were inclined to consider the advantages and disadvantages of democracies where the people hold the sovereign power. Let us evaluate some of the attributes of a Democracy.
A true democracy allows all citizens, who have been granted the right of suffrage, to participate in the policy making or creation of law which dictates the administration of the government. Democracies are limited by the capacity of people to physically gather together from time to time and debate a subject with civil discourse. By definition this constraint restricts it to smaller regions or populations. The idea of selecting council to represent the constituencies of multiple factions lessens this inadequacy and introduces the mixed form of government referred to as Republican. The Republican form of government also helps resolve one concern identified by Mr. Montesquieu, "As most citizens have sufficient ability to choose, though unqualified to be chosen, so the people, though capable of calling others to an account for their administration, are incapable of conducting the administration themselves". The Republican form leaves sovereignty in the custody of those that have the right of suffrage and borrows from the aristocracy the idea that the noblest of men will be selected to represent the community.
There is another principle that must be addressed to avoid the demise of a Republic and I shall call upon Mr. Montesquieu for his opinion, "The public business must be carried on with a certain motion, neither too quick nor too slow. But the motion of the people is always either too remiss or too violent. Sometimes with a hundred thousand arms they overturn all before them; and sometimes with a hundred thousand feet they creep like insects". To facilitate conscious reasoned actionon matters of significance by the sovereign; the Constitution provides the First Amendment guaranteeing free speech. Thus allowing continual discussion on matters of grave importance but then it limits the people's ability to take action while satisfying their need to do so by providing periodic elections; therefore necessitating extensive periods of debate to enact change.
In a Republic, as the people delegate their sovereign authority to their representatives the less they retain awareness of the decisions made on their behalf and the less they feel empowered; therefore, the closer these powers remain to the people, while harmony exists among the diverse societies, the more the people stay informed, involved and retain their mind-set of being empowered. Conversely, when conflict cannot be resolved locally, it is advanced to higher echelons of government, where calmer minds prevail, pending a solution. The founders recognized the inevitability of population growth and an increase in the numbers of diverse societies. The Constitution's intentional distribution of power from the people to local authority then to the States and lastly the Federal Government permits the citizenry to more closely monitor the activities of government and the restrictions it might impose on them. The Founders believed, the inherent role of central government to protect the security and freedoms of society should not alter with the changing needs of society and that the States or local authorities would resolve most of the civil conflicts.
I believe we can agree the Founders designed the Constitution including the Bill of Rights on basic principles of good government which has been previously discussed. Also built into the Constitution are many checks and balances to limit power allocated to the central authority, without endangering the autonomy of the states; and the Separation of Powers between the branches.
- The House of Representatives will be selected by the general population.
- The Senate will represent the States and consist of two Senators.
- The President selected by an appointed body of electors; the process of appointing said electors resting with the individual state Legislatures.
- The Judicial Branch consisting of a Supreme Court established by the constitution and inferior courts established by Congress; with Justices, nominated by the President, confirmed by the Senate.
- The House of Representatives is granted the power of Impeachment with the trial being conducted in the Senate.
- Revenue bills must originate in the House of Representatives.
- Senate must confirm appointments to major departments, treaties and ambassadors.
- Both Houses of the Legislature must pass all bills before submitting them to the President.
- The President is granted the power of veto.
- Congress may override the veto with a two thirds majority in both Houses.
- Congress may propose amendments to the Constitution.
- Ratification of proposed amendments requires approval by three fourths of the States.
The United States of America now has a foundation upon which to build a new coalition and we've discussed the Founders' rationale behind the statutes in the document; now let us appraise their success.
A testament to the success of America came from an impartial witness from France, Alexis de Tocqueville when he authored 'Democracy in America' published in 1835; he recounts the conditions he observed during his travels, "The European generally submits to a public officer because he represents a superior force; but to an American he represents a right. In America it may be said that no one renders obedience to man, but to justice and to law. If the opinion which the citizen entertains of himself is exaggerated, it is at least salutary; he unhesitatingly confides in his own powers, which appear to him to be all-sufficient. When a private individual meditates an undertaking, however directly connected it may be with the welfare of society, he never thinks of soliciting the co-operation of the government: but he publishes his plan, offers to execute it himself, courts the assistance of other individuals, and struggles manfully against all obstacles. Undoubtedly he is less successful than the state might have been in his position; but in the end, the sum of these private undertakings far exceeds all that the government could effect".
The industrial revolution had begun and Mr. Tocqueville is amazed by what he has observed; he credits the productive environment to the vast freedom and liberty enjoyed by the common citizen. An additional concept of a productive society comes from Adam Smith and I am amused by his words, "It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest". It is in human nature where we discover that labors are maximized when the reward is greatest. In America we have mostly relied on the entrepreneur's self-reliance and self-interest to determine the direction of investment and the course of the economy. This course of action has served us well!
Another observation noted by Mr. Tocqueville, "Upon my arrival in the United States, the religious aspect of the country was the first thing that struck my attention; and the longer I stayed there, the more did I perceive the great political consequences resulting from this state of things, to which I was unaccustomed. In France I had almost always seen the spirit of religion and the spirit of freedom pursuing courses diametrically opposed to each other; but in America I found that they were intimately united, and that they reigned in common over the same country... In the United States the sovereign authority is religious... there is no country in the whole world in which the Christian religion retains a greater influence over the souls of men than in America, and there can be no greater proof of its utility, and of its conformity to human nature, than that its influence is most powerfully felt over the most enlightened and free nation of the earth... The Americans combine the notions of religion and liberty so intimately in their minds, that it is impossible to make them conceive of one without the other".
As you may detect, I afford an abundant amount of ink to the observations of Mr. Tocqueville; this I do to illustrate the conditions that remain in America after five decades under the Constitution; but preceding the Civil War and the Progressive Era that followed. I suggest you not gloss over these annotations as it is imperative that you understand, except for the existence of slavery, all seemed well within the borders of America. Attempt to amend the history of this nation all you desire, but only a casual review of any transcript originating during this period will divulge that virtue and religion played primary roles in the development of American prosperity.
We have learned the Founding Fathers employed their understanding of several thousand years of human behavior including the strengths and weaknesses of previous and existing governments in their attempt to establish a new manner of government that might long last and allow divergent factions to coexist and prosper. Nevertheless, an analysis of the relations between the differing political and cultural factions in America today exposes antagonistic behaviors not witnessed since the Civil Rights movement of the prior century. If we consider these, one might infer the Founders deprived the Federal Government of some authority which would allow it to anticipate calamity and take action to prevent it. Let us investigate this premise.
The earth's ethnicity has altered in the past century as travel and communication have enlightened each of us to the other's customs and traditions. But one need only review migration patterns of mankind throughout history and behold the world population's trends and behaviors. As the old proverb asserts, "Birds of a feather flock together." The Constitutional Republic envisioned by our founders takes into consideration the need for different ethnic groups and religions to coexist under a central government. The States are allowed to differ one from the other and any impartial examination will disclose they do have countless differences. These differences are even more apparent as we consider the cities, towns, communities and neighborhoods around the country. When differing persons or factions are in conflict they should and must rely on government for peaceful solutions. The question is; at what level of government should they begin their search?
We read in The Declaration of Independence, "all men are created equal", and some will assert the Civil War was fought over this. I will not totally disagree; because until after that war and passage of the Fourteenth Amendment, this was not the law of the land. In fact, this issue was not resolved, in law, until it was escalated to the Federal Government and the Civil Rights Act was passed in 1964. This certainly was one 'Failing of the Founders' where we might agree. It is here we find an example of where it became necessary to delegate the people's authority to the highest level of government to ascertain a solution; but one legitimate example does not obligate us to delegate this authority for any other issue exposed within these borders.
Let us assume my neighbor and I have many cultural and philosophical disagreements and in fact can scarcely tolerate being in each others presence. To avoid daily conflict, are we not required to deliberate and discover common ground which will allow us to exist in some form of harmony or to seek mediation from a higher authority? Of course we are! Then, once we have reached agreement, should we expect all persons experiencing similar disagreements to accept the same solutions to which we have agreed? If you concur that we should not, then you must also agree that the closer to home a solution can be sought, the higher the probability of informed mediation and greater the chance of finding a satisfactory resolution.
For arbitration to have a final solution it is sometimes necessary to look beyond our own self-interest. John Locke alleged, "for, to be a good man, a good intention is necessary, and we should love our country not so much on our own account as out of regard to the community".
I assert that enough evidence has been presented thus far to illustrate, in a Republic, where the Sovereign authority resides with the people, each person, community or faction should be allowed to manage their own affairs so long as they do not interfere with the affairs of another. When conflict exist in society, it should be dealt with and resolved as close to the cause as feasible; this principle can be applied to any action of government. An issue originating in the interior-city of Detroit will probably not be resolved with the same solution as a similar issue found in a rural community of the same State of Michigan.
Let us investigate what has changed in America and the Constitution that may have had a profound effect on the behavior of society and government since Mr. Tocqueville documented his observations in 1835? For example, there have been thirteen amendments; and if time and space would allow we should probably examine each and every one to establish the effect it has had. Do not be alarmed; I have no intention of making this any more of an American History tutorial than necessary to determine the basis for the situation that currently exists.
The most active subject, suffrage, was addressed in six of these amendments and while it did significantly increase the percentage of citizens with the legal right to vote and according to Mr. Montesquieu may contribute to some of the discourse, I do not think it to be a major factor. The two amendments which I believe have had the greatest effect and removed some of the checks and balances that the Founders deemed necessary are the Sixteenth and Seventeenth. Before we investigate other influences, let us review these amendments in the reverse order of ratification.
The Seventeenth Amendment provided for the direct election of Senators by the people (Remember they were selected by the State Legislatures). Does this not negate the States' representation in the Federal Government and remove a major level of the Republic so carefully planned by the Founders? Even if a majority of the State Legislators oppose an edict imposed on them by Washington, what recourse do they currently have except through the expansive and lengthy path of the Judicial Branch? Before they can get a ruling, which often finds in their favor, millions and sometimes billions of precious dollars are wasted while thousands of lives may well have been negatively impacted by ill conceived laws and regulations.
The Sixteenth Amendment was approved by Congress in 1909 when it was widely promoted the country was becoming insolvent; the nation was over 2.6 billion dollars in debt and had been suffering deficits for most of the previous fifteen years. The amendment provided, for the first time, the authority of the Federal Government to impose a direct tax on incomes with the anticipation that the people would hold it accountable for the quantity it would be inclined to collect. This anticipated control may have received additional debate and consideration had Congress been as knowledgeable as the Founders were of Mr. Montesquieu: "the people, whose nature is to act through passion... we often see them as much inflamed on account of an actor as ever they could be for the welfare of the state. The misfortune of a republic is when intrigues are at an end; which happens when the people are gained by bribery and corruption: in this case they grow indifferent to public affairs, and avarice becomes their predominant passion. Unconcerned about the government and everything belonging to it, they quietly wait for their hire".
Since the ratification of the sixteenth amendment, the amount of annual spending by the Federal Government as a percentage of GDP has increased from 3.4 in 1930 (first available record according to Office of Management and Budget ) to a record 25.2 in 2009. Imagine, prior to Social Security in 1935, and other social programs that followed, the Federal Government was able to fulfill its Constitutional responsibilities using less than 3.5 percent of GDP. You must concede; the Federal Government has been procuring massive amounts of power and influence for the past century while abducting individual liberties from the people and the States.
It is reported that forty-seven percent of American households paid no federal income tax in 2011; is this helping the poor or buying votes? The answer depends on who you ask. I have not read where forty-seven percent of households in America are beneath the poverty level; therefore, I tend to lean toward the "buying votes" side. Tocqueville warned, "The American Republic will endure until the day Congress discovers that it can bribe the public with the public's money".
Additionally, ease of transportation plus advancements in technologies provide us with copious amounts of news and information; which make each of us unusually aware of issues, conflicts and suffering that would have mostly gone unnoticed in an earlier time. I contend that because we are more aware of these issues; we, as caring beings, wish to assume some responsibility to provide a solution. Helpless in our individual capacities to provide a desirable resolution, we are willing to delegate this mission to higher influences of society. To help ease our conscience, we may even demand solutions at the ballot box; where we find politicians, who, ready to capture additional power, are eager to oblige. I do not propose society overlook these issues and suffering; I merely suggest we examine each solution to determine where it might be managed in the most efficient method possible. If we continue to search for answers from the Federal Government, we must also lower our expectations and understand we will receive generic answers for specific concerns.
It is as if the current generation has lost all common sense. And speaking of 'Common Sense' let us observe a few words of wisdom from Thomas Paine, "The more simple any thing is, the less liable it is to be disordered, and the easier repaired when disordered". Mr. Paine advises us to seek simple solutions where possible; the more complicated the process, the more difficult the modifications and/or repairs.
Additional warning came from Mr. Tocqueville, "When the taste for physical gratifications among them has grown more rapidly than their education... the time will come when men are carried away and lose all self-restraint... it is not necessary to do violence to such a people in order to strip them of the rights they enjoy; they themselves willingly loosen their hold... they neglect their chief business which is to remain their own masters". We've passed our responsibilities from our neighborhoods, churches, communities, cities and States; we have allowed the horses to wander far from the barn and it will not be easy to gather them and return them to their stalls. It will be necessary to search in the thickets, briars, brambles and swamps; there will be cuts, scrapes and adversity. This suffering must be endured now and for the sake of future generations; we are the undisciplined generation that became so self-absorbed and ignorant of our duties.
We must recognize and correct the mistakes that have been made. The seventeenth amendment extinguished the States' representation in the Halls of Congress and moved the balance of power too far in favor of the Federal Government. This amendment must be repealed; there is no other solution for the mistake that was made. I have recently heard discussion to rid the nation of another imposition place on us by the Founders; some wish to abolish the Electoral College and choose the President by a majority of the popular vote. Before we slither into a Democracy, let us look back to the lessons handed down through antiquity.
The sixteenth amendment rewarded the Federal Government with enormous authority to collect excessive amounts of revenue without proper controls. Using these unwarranted monies, it has implemented many programs in the name of Social Justice. Government should protect and safeguard equality on the playing field; not fix the game to guarantee the outcome will be a dead heat. There exist numerous possible solutions for this mistake but I believe this amendment must be repealed or we must approve additional amendments which will link the amount of revenue collected to a percentage of the GDP. This topic also needs to end the Federal Government's tradition of collecting revenues in excess of what is required to carry out the limited and carefully defined powers delegated and set forth in the Constitution. It must abolish the practice of collecting revenues and then returning said monies to the States with regulations and/or mandates. If repair of a common ill is required; let it first be addressed at the lowest levels of government and only escalated forward until the infirmity has been medicated or eradicated.
The Founders had nothing to do with the ratification of the sixteenth amendment but they were keenly aware and did foresee the possibility of Congress bribing the public with the public's treasury. I contend this oversight was a 'Failing of the Founders'.
I also wish to bring attention to the ability of private businesses to influence public policy and contracts. A business that feeds from the public trough should operate under similar rules as a 501(c)(3) organization. It can not be allowed to contribute to political campaigns or lobby at any level of the public domain in a partisan way. This also applies to public employee unions. Unions that negotiate for wages and benefits of public employees should not be allowed to contribute to the election of officials who then in turn reward them with the public purse. Why such a business or union is be permitted to contribute to the coffers of a politician's campaign, while it is illegal for a Church to do the same, is beyond me; and to allow them this capability defies all relationships with common sense.
Mr. Paine also advised, "A long habit of not thinking a thing wrong, gives it a superficial appearance of being right." These failed principles have long been set in place and we have come to accept there is no other action to provide the results we desire. We must return to the traditions founded upon our Judeo-Christian values. You are not required to be "foolish" enough to believe in The Devine Creator but you can not possibly be foolish enough to believe man can live in societies where virtue and morality is void. Allow the Churches to return to the public square; and teach the doctrines and moral values upon which all virtuous nations have constructed their foundations.
There are other topics we can bring up for consideration but I believe many of these will find their own solutions when we return to the convictions of our Founders and become involved in the management of our affairs. I leave you with a thought from Calvin Coolidge about the Constitution, "It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions".
About the Author
Larry W. Davis is an active member of the TEA Party Movement in Texas. Since 2008 he has been working with like minded patriots to bring the over reaching federal and state governments back to the Constitutional principles of the Founding Fathers.
If you would like additional information about getting involved in this movement, check out TeaParty911.
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