Happy Constitution Day!

Happy Constitution Day!


Today is Constitution Day, a holiday created four years ago to mandate that schools receiving federal funds focus on teaching the Constitution. My home town paper laments that “Constitution Day has become a holiday-lite, a calendar marking that brings up nods of appreciation but little else.” Perhaps that makes USA Today a better newspaper to take note of the holiday with a 100 word story (I scored 80% on the linked quiz).

For five months in 1787, a constitutional convention convened in Philadelphia to revise the Articles of the Confederation. The articles were considered inadequate for the nascent federal government to deal with conflicts such as Shay’s Rebellion. Instead of revising the Articles, the delegates wrote an entirely new document. 221 years ago today – on September 17, 1787 – 39 of the 55 delegates to the convention signed the Constitution of the United States. It is the oldest and shortest Constitution of any major government in the world, and the first to be written by representatives of those who were to be governed.

Before becoming the basis of our government, the Constitution had to be ratified by the states. Having fought to escape the shackles of a distant despotic monarchy, many were understandably leery of a replacing it with a less distant but strong federal government. The document was debated by citizens and leaders in the mass media of the day – newspapers and pamphlets. From About.com:

“In the months that followed, James Madison, Alexander Hamilton and John Jay would write the Federalist Papers in support, while Patrick Henry, Elbridge Gerry, and George Mason would organize the opposition to the new Constitution. By June 21, 1788, nine states had approved the Constitution, finally forming “a more perfect Union.”

James Madison, the “Father of the Constitution” in Federalist #51 argued for the protections provided by the separation of power, checks and balances in the Constitution:

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The debate on whether the constitution adequately protects the governed from the government continues to this day. Widener University School of Law has organized an online debate on what the Constitution means to modern Americans. Richard Pildes, Professor of Constitutional Law at New York University School of Law contributes to the debate with a pessimistic analysis “Political parties tilt balance of power“:

“During periods of unified government, in which the same political party controls the House, Senate and the presidency, the president has the capacity to exercise wide-ranging powers without extensive oversight or checking and balancing from the other political institutions of government. The president’s power is thus not static or fixed. Yet neither the Constitution nor our thinking about the presidency has fully come to terms with this truth. Indeed, the Constitution did not contemplate a system of political parties at all. When the Constitution was designed, the existence of parties — factions, in James Madison’s terms — was a sign of a diseased political system. The Constitution was specifically designed to create a system that would transcend parties and minimize their role… the conventional stories we tell about our system of checks and balances, or separation of powers, are not all that realistic in practice. If we continue to believe in the benefits of checks and balances — and I do — we must accept that effective congressional oversight of the president is not likely when the House, Senate, and presidency are in the hands of the same party. We need to modify our institutional structures to find other ways of generating effective checks and balances. The most promising route would be to give the opposition party tools to oversee the president — perhaps the power to call hearings or subpoena witnesses or to audit the government. I do not expect these measures to be adopted. No legislative majority cedes power to the minority.”

However, until such time that additional protections for the governed can be built into the Constitution, we the governed can address this Constitutional defect on our own – by never voting one party into control of the Presidency, Senate, and House or Representatives. By voting for divided government.

Easier said than done, but important to think about.

  • tomsulcer

    The Constitution must be overhauled. It no longer works. It’s been redacted endlessly. The political process has broken down. Therefore, I’m summoning delegates to a Second Constitutional Convention to meet in Philadelphia beginning July 4th, 2009. It will draft a superior document that defines citizenship, fixes partisanship (by limiting left and right to battling in statehouses and leave Washington to conduct foreign policy), improve foreign policy (revised architecture), prevent crime & tyranny & foreign terrorism. My critique of America can be found in Common Sense II: How to Prevent the Three Types of Terrorism by me, Thomas W. Sulcer, available on Amazon and Kindle.

  • tomsulcer

    The United States Constitution is a brilliant document that has secured liberty for millions of Americans, but serious flaws have begun to emerge as well as international challenges which, in my view, require an intelligent rethinking in a Second Constitutional Convention.

    My problems with the current Constitution include:

    (1) Awkward transition between presidents; from election day to the inauguration of the next president, there are effectively two presidents — one in office, one awaiting office, and this allows confusion.

    (2) Under-representation of voters from populous states in the Senate.

    (3) DC voters lack representation.

    (4) Supreme Court has failed to protect the federal structure with state governments having regulatory authority over their respective economies and instead promoted the shifting of power to Washington.

    (5) Original Constitution fails to include a right of privacy.

    (6) Possibility of a military dictatorship should a significant terrorist attack happen such as a catastrophic attack on Congress.

    (7) The Electoral college system is cumbersome and confusing.

    (8) Popular election of senators. Here’s a situation in which the original constitution was right (letting state governments choose Senators) but it was changed by an amendment. It’s important for state governments to choose Senators to give state governments a voice in the national government.

    (9) Inability to get rid of an incompetent president quickly. Examples: Wilson (suffered from an economic malady); possibly Roosevelt in last years in office; Bush II (clearly incompetent choice to attack Iraq).

    (10) Life tenure for unelected Supreme Court judges. One problem: judges are often old, feeble, unable to perform their duties. Another problem: judges can choose to retire when a like-minded president is in office, and in this way, judges can steer the ideological direction of the court. Possible solution: term limits (15 year, 18 year) for judges.

    (11) The Ninth amendment has been seriously ignored.

    These objections have been raised by constitutional scholars and there is fairly widespread agreement among them.

    British constitutional scholar Adam Tomkins identifies a prime weakness in America’s constitution — that the prime role of checking government is supposedly handled by the judiciary, and not the legislature. He thinks the judiciary is ill-suited to rein in government ministers since it must wait for a court case to bubble up before it can act; plus, judges are not popularly elected and are therefore not accountable to the public. He thinks Britain’s system — where the Prime Minister must defend choices each week in a 30 minute meeting before Parliament — is superior to America’s. I agree.

    I see more serious flaws with America’s governmental structure than the list above. The foreign policy architecture is deeply flawed — entrusting too much power in one overburdened official (the president, who has both domestic and foreign policy duties.) America’s foreign policy can only be as good as the president. An incompetent president, or one distracted with domestic matters, means that America’s foreign policy is likely to be mindless and erratic. Any intelligent review over the past 50 years of America’s foreign policy would see a long list of obvious mistakes (along with some successes, to be sure.) In the past, America could get away with this mindlessness because of its size and wealth; but in the nuclear age, foreign policy can’t be an experiment, a happenstance, rather it must be consistently sound and smart. So I propose a structure more like the Roman Senate (during the Republic years.) It rarely made mistakes. And therefore, this requires major changes to the constitution.

    Further, the United States lacks an intelligent strategy to prevent terrorism. The Constitution is partly to blame here. It needs to confront the whole issue of anonymous movement in public — that is, how can we identify movement while preserving privacy? This is the key to preventing terrorism in my view.

    Today’s US government is highly corrupt. Power has shifted to the president. Power is dangerously concentrated in this one office. The executive can essentially legislate by using a vast bureaucracy of agencies that are largely unaccountable to the public and hidden from debate. Presidents have begun issuing “signing statements” — a fairly recent innovation — when they describe how they intend to interpret a law made by Congress, which effectively puts a “spin” on a law. The most egregious sign of concentrated executive power is, of course, the power to start wars without Congressional approval (Vietnam, Grenada, Panama, Iraq (there was a token vote)). The Constitution explicitly gave the war-making power to Congress. So why does the president have this power?

    So, for these reasons and other reasons, I’m advocating a Second Constitutional Convention to fix these flaws, and as a private citizen, I am summoning delegates to Independence Hall in Philadelphia beginning July 4th, 2009.