Our Decrepit Constituion: Protecting Vested Interests

Our Decrepit Constituion: Protecting Vested Interests

Our present constitution is an experiment. Our previous governing document, the Articles of Confederation was seen as a failure because it had severe and incurable problems. The Articles created a loosely allied group of states. There was no central authority, no president, and no way to resolve disputes between the states. The Articles led to trade and taxation disputes between the states and outbreaks of violence.

A group of citizens led by Daniel Shays took up arms against the government of Massachusetts. The federal government lacked the military power to put down the insurrection, so the state's wealthier citizens formed a private militia to do the job. The state government easily suppressed the rebellion, which had been inspired by taxation and austerity policies. Washington considered the rebellion an awful presage of things to come, but was happy that the state had been able to control it so quickly.

Shays's Rebellion had at its root the difference between the well-off and the poor. At that time, the currency was worthless and the small farmers in rural Massachusetts had nothing with which to pay taxes. They had to watch as banks foreclosed on their property. They also resented the money from taxes being transferred to wealthy financiers. Massachusetts resolved the problem by discounting its debt.

Jefferson, with his typical laissez-faire philosophy, considered Shays's Rebellion a good thing, a means to water the tree of liberty with the blood of tyrants. George Washington and James Madison considered the uprising a sign that a stronger central government was needed, one that had the ability to raise revenues and support a professional army. They took steps in the new Constitution to strengthen the federal government and to increase its ability to levy taxes and maintain a standing army.

The adoption of a new Constitution did not prevent armed uprisings, however. The Whiskey Rebellion was a revolt against excise taxes proposed by Alexander Hamilton, the first Treasury Secretary under President Washington. Once again poor farmers revolted against paying taxes when they had no paper money, only produce. Washington led a sizable militia force into western Pennsylvania to put down the revolt. The revolt evaporated before any military engagements occurred.

Fries's Uprising in 1799 was caused once again by taxation issues. The poor farmers of western Pennsylvania objected to the imposition of a property tax. Farmers in slave states could apply this tax to their slaves. Slaves could be sold to get cash, but property could not. While the newly strengthened federal government was able to suppress the insurrection, President John Adams drew criticism for his handling of the crisis, while Albert Gallatin, by acting as a calming force, gained prominence among the anti-federalists.

All three of these rebellions were popular uprisings against the wealthy financiers who held war-debt from the revolutionary war. Hamilton's excise taxes transferred money from the poor farmers in the west to the wealthy bankers in the east. Madison referred to these uprisings as excesses of democracy. He and his allies designed the Constitution to assure that the faction of the majority (I.e., the poor) could not dominate the faction of the minority (I.e., the wealthy).

The Constitution protects the wealthy minority from the poor majority by a system of checks and balances. The Framers explained these features as intended to prevent tyranny or anarchy. John Adams gives the Long Parliament as an example of a single-house legislature that led to tyranny. While John Adams was a well-read, well-traveled man, his conclusions do not take into account changing times and circumstances. The Long Parliament may have led to tyranny, but it started out as a reaction to tyranny of the British king. It failed to hold regular elections, which Thomas Paine suggests as a counterweight to tyranny. Adams discounts this argument entirely. Yet we know today that there are many single-house legislatures that have not devolved into tyranny or anarchy, the British House of Commons foremost among them. Whatever arguments may have been accepted at the time of the framing have now been refuted by subsequent events.

The British Parliament found a way to neutralize its obstructive House of Lords because it has no written constitution and hence has more freedom to change its customs to respond to changing circumstances. The American Constitution has no such ability. In evolutionary terms, the American Constitution has proven itself unable to evolve and has set itself on the path to extinction.

Our Decrepit Constitution: Electoral College and The Civil War

Electoral College

Americans credit the men who wrote the Constitution—the framers--with great wisdom and foresight. Supreme Court Justices have started a cult that worships the Constitution as a perfect document. They pore over its text and the opinions of its creators as though they were religious texts and revelations of the true word. Some also claim that the framers were inspired by God, usually by a Christian fundamentalist God.

None of these beliefs is true. The framers were neither godlike nor exceptionally wise. The document is not based on religious ideas. The Constitution is deeply flawed and becomes more so with each passing year. The framers made it hard to change. Amendments require passage by both houses of congress with a two thirds majority, then ratification by three fourths of the state legislatures. Most amendments also specify that they must be ratified within seven years.

The framers have recently been considered by some the infallible source for American law. This assumption implies that they were always right, at least about law and government. This assumption was very far from the truth.

The framers invented the electoral college, ostensibly to prevent the voters from making a mistake when electing a president. Instead, it was the electoral college that made the mistake, in 1800, when it gave the same number of electoral votes to both Thomas Jefferson and Aaron Burr. The House of Representatives elected the president that year. The Constitution created a crisis where none existed.

The framers decided that each state should have only two senators. This compromise gave more power to the less populous states at the expense of the states with larger populations. In 1787 the most populous state, Virginia, had 20 times the population of the smallest, Delaware. In 2010, the most populous state, California, had 65 times the population of the smallest, Wyoming.

History tells us that states vote in regional blocs, with relative size having little to do with their decisions. Neighboring states New York (a large state) and Rhode Island (a small state), for example, voted for the same presidential candidate in the last seven elections. Neighboring states Louisiana(small) and Texas(large) voted for the same presidential candidate in the last seven elections as well. Louisiana and Rhode Island, both small states, voted for different candidates in all seven elections.

Since small states no longer vote in a bloc, if they ever did, the election of two senators from each state, regardless of population, does not serve the purpose intended by the framers. Instead of balancing the interests of different sized states, California's two senators represent a disenfranchisement of 36 million voters in relationship with Wyoming. The framers may have been right in 1787, but their judgment on this matter, at least reflected by presidential choices, is wrong today.

The framers made no provision for political parties in their Constitution. This oversight has become a serious problem in recent years. The British Parliamentary System recognizes that there will always be more than one party. The leader of the majorityThis arrangement gives the leader of parliament, the prime minister, the ability to govern if he can unite his own party behind his platform, a relatively easy proposition, given that all members of his party stood for election on the same platform.

The American system divides government between political parties. This division makes legislation more difficult to pass and slows down the process of government. James Madison argued that representative democracy rather than direct democracy because he claimed that direct democracy gave rise to factions. Madison defined a faction as a group of citizens united in some passion or common interest against the interest of others. He singled out the factions that arise from inequality of wealth and argued that a representative democracy would protect the minority from the majority.

Madison believed the best way to guard against factions was to create a representative democracy. Direct democracies, he claimed, always failed within a short time. The difficulty that arises here, which is a major difficulty with all opinions expressed by the framers, is that these conclusions are drawn on examples with almost no data. The number of direct democracies documented by history in Madison's day was precisely one, the direct democracy of Athens during the fifth century BCE. Any argument based on such limited data must be questioned.

It is pointless to argue whether Madison's theories on factions or democracy were correct. Like the philosophers he admired, Madison argued using only pure examples to illustrate his ideas. Madison argued that representative democracy had advantages over direct democracy but failed to recognize that no pure direct democracy has ever existed nor ever could exist. The representative democracy created by the Constitution has over the years become more democratic, through the direct election of Senators in the federal government and the addition of democratic ideas such as initiative and referendum in the individual states.

The Civil War

Madison considered that factions of the majority were dangerous to a nation, not those of the minority. He had in mind the faction of the poor, which is always greater than the faction of the rich. Madison's Constitution intended to guard against majority factions and guard minorities. This presumption, that only majority factions are dangerous, has been disproved by history. Several crises in American history have arisen because of minority factions, primarily because the wealthy have been successful in seizing and holding the reins of power in precisely the manner which the framers sought to prevent. The rise of a tyrant, which Justice Scalia claims that the Constitution has prevented, has never been a problem in America. What has been a great problem, and remains a problem today, is the accumulation of vast riches by a small class of people, who use their wealth to seize and retain power.

Scholars often speak of a Constitutional crisis as being a political problem that cannot be resolved easily by the Constitution. Examples of such crises were the election of 1800, when Jefferson was elected president by the House of Representatives; the election of 1876, when Benjamin Harrison became president with fewer popular votes; and the Watergate scandal that ended the presidency of Richard Nixon.

The most serious crises in American history did not arise from a failure of the framers to foresee an event. Instead, they were caused by the framers' express intent. Despite Madison's concerns, there have been no factions of the majority. Instead, three crises in American history have been caused by factions of the minority, who were not poor but wealthy. The Civil War, the Great Depression, and the Great Recession were caused by flaws in the Constitution.

The framers needed to gain the support of slave holders. They inserted several pro-slavery features into the Constitution. Article I, Section 2 of the U.S. Constitution defined a slave as worth three fifths of a person. This article strips African Americans of their rights as humans. African Americans not only submit to the lash, they must also give their votes to their masters, who were free to vote, again and again, to keep them in perpetual servitude. This article continued in force for seventy-six years. It contributed to the widespread belief that African Americans were racially inferior and reinforced the conviction in the Southern states that their actions were legal and just.

Article II, Section 1 establishes the electoral college for the election of the president. The slave-holders were concerned that their slaves, once freed, would take control of state government from them. They saw the electoral college as a means to permit a small group of voters to thwart the will of the majority. This worked in actuality. Only 1.3% of the population cast their votes in the first presidential election. Virginia had the most electors, thanks to its large number of slaves. The first president was George Washington, a prominent Virginian and a slave-holder. The second president was John Adams, from Massachusetts. Jefferson, Madison, and Monroe were all Virginians and slave holders. Andrew Jackson, from Tennessee, was also a slave-holder from a slave state.

These early slave-holders held the presidency until 1836. At that time, slave-holders from southern states had held the presidency for 40 of the previous 48 years. They used their tenure to promote slavery at home and abroad. They appointed southerners to the Supreme Court with lifetime tenure. These supreme court justices tried to perpetuate slavery and spread it to the northern states.

The US Supreme Court ruled, in Dred Scott decision(1857), that a slave who lived in a free state was still a slave. All six southern justices voted with the majority. Northern opponents of slavery feared that this decision meant southern slave-holding states could export slaves to the north. The decision heightened tensions that led to the Civil War breaking out in 1861. Although the Supreme Court did not cause the Civil War, Dred Scott showed how much influence the southern states had gained through the electoral college and the pro-slavery compromise within it.

Our Decrepit Constitution: 3. The Silver Bullet

Our Decrepit Constitution: 3. The Silver Bullet

On December 12, 2000, the US Supreme Court decided that George W. Bush would be president of the United States. The Court acknowledged that the Constitution left the election of the president to the people, but decided nevertheless to intervene, something it had never done before.

The Constitution furnishes almost no guidelines for the election of the president, one of the most important political undertakings of the government. The framers intended for the president to be chosen indirectly, by electors elected by the people, not by the people themselves. The framers intended for the electors to meet after the popular vote was taken. Only then would the electors decided the actual winner of the election.

As usual, however, the framers omitted the process to be followed in case of dispute. In particular, they did not specify that the Supreme Court, an unelected body of judges who held lifetime appointments, should not determine the outcomes of elections. In 2000 this led to the election of a president by five such judges after 200 million citizens had cast their votes in the general election. Furthermore, all five of these judges had affiliations to the Republican party, whose candidate they chose as the winner. These judges showed no reluctance to support their party's candidate, despite the express intent of the framers to lift the Supreme Court justices above the fray of electoral politics by giving them lifetime tenure.

Over the years, the citizens of the US became concerned about the influence of corporations and large political contributions. The Congress, responding to the will of the people, passed laws that regulated contributions from corporations. In Citizens United v FEC, the Supreme Court ruled that the concerns of the people were groundless. The Court ruled that corporations were nothing more than associations of individuals and as such were entitled to the same rights as individuals under the First Amendment.

This ruling supported the Court's belief that the rich had more rights to express their opinions, since it is obvious to everyone that the rich can buy more speech than the poor. The Court delared that there cannot be too much speech. Through this ruling, the court overruled the people of the United States, whose common sense tells them that corporations spending vast amounts of money wield inordinate influence over politicians and their decisions.

In Citizens United, the Court once again found a way to support the Republican party. They voted five to four along party lines to permit unlimited corporate contributions. Many groups have been proposed that an amendment to the constitution would resolve this issue. The impartiality of the supreme court is fundamental to the design of the Constitution. The framers designed the Constitution to operate by checks and balances. Without an unbiased Supreme Court, their design fails.

The Constitution conceals this flaw and many others. The framers intended the Constitution to be amendable, yet only 17 amendments have been enacted, other than the Bill of Rights, in over 200 years. There are several reasons for this failure of the original design.

1. The United States has many more states than it had originally. When there were only 13 states, the number of legislatures required to ratify an amendment was 10. Today, when ratification requires the approval of 38 state legislatures, the amendment process should be at least 3 1/2 times as difficult.
2. The population of the United States is more than 100 times what it was in 1787. Persuading a number of people of the necessity of a change increases with the number of people who must be convinced. The people do not directly vote to ratify amendments, but they do vote for the legislators who must make the decision.
3. Both the larger number of states and the larger population make the amendment process more time-consuming.
4. The increase in time and energy, and above all money, that can be spent to defeat an amendment makes it unlikely that an issue can achieve a 3/4 approval. Money can be spent liberally to confuse the issues. Confusion will make the amendment less likely to pass.
5. The vast amount of money that must be raised to ratify an amendment will make it difficult to pass a complex amendment, such as one that abolishes the Electoral College.

Numerous amendments have been proposed to overturn the Citizens United decision. The opponents of this decision correctly view it as a threat to democracy itself. All of these amendments, however, share a common flaw. These amendments seek to correct a single decision of the Supreme Court, but history has shown that the enemies of democracy will soon find another way to suppress the rights of the people. Given the impediments blocking any Constitutional Amendment and the large errors and oversights in the Constitution itself, there is only one solution. The amendment process itself, as described in Article V of the Constitution, must be changed.

The change required is simple. The Constitution must be amended by referendum and initiative, using the same process as already exists in many states. Such an amendment, known as the National Initiative, has already been proposed.

The existing initiative and referendum laws were proposed during the Progressive Era (1890 – 1930). At that time, people were concerned that big corporations were controlling state legislatures. Corporations are once again threatening our democracy. We need the National Initiative, the Silver Bullet that can rectify many of the Constitutions problems and return the government to its rightful owners, the People.

Our Decrepit Constitution: 2. The Framework

Americans credit the men who wrote the Constitution—the framers--with great wisdom and foresight. Supreme Court Justices have started a cult that worships the Constitution as a perfect document. They pore over its text and the opinions of its creators as though they were religious texts and revelations of the true word. Some also claim that the framers were inspired by God, usually by a Christian fundamentalist God.

None of these beliefs is true. The framers were neither godlike nor exceptionally wise. The document is not based on religious ideas. The Constitution is deeply flawed and becomes more so with each passing year. The framers made it hard to change. Amendments require passage by both houses of congress with a two thirds majority, then ratification by three fourths of the state legislatures. Most amendments also specify that they must be ratified within seven years.

The framers have recently been considered by some the infallible source for American law. This assumption implies that they were always right, at least about law and government. This assumption was very far from the truth.

The framers invented the electoral college, ostensibly to prevent the voters from making a mistake when electing a president. Instead, it was the electoral college that made the mistake, in 1800, when it gave the same number of electoral votes to both Thomas Jefferson and Aaron Burr. The House of Representatives elected the president that year. The Constitution created a crisis where none existed.

The framers decided that each state should have only two senators. This compromise gave more power to the less populous states at the expense of the states with larger populations. In 1787 the most populous state, Virginia, had 20 times the population of the smallest, Delaware. In 2010, the most populous state, California, had 65 times the population of the smallest, Wyoming.

History tells us that states vote in regional blocs, with relative size having little to do with their decisions. Neighboring states New York (a large state) and Rhode Island (a small state), for example, voted for the same presidential candidate in the last seven elections. Neighboring states Louisiana(small) and Texas(large) voted for the same presidential candidate in the last seven elections as well. Louisiana and Rhode Island, both small states, voted for different candidates in all seven elections.

Since small states no longer vote in a bloc--if they ever did--the election of two senators from each state, regardless of population, does not serve the purpose intended by the framers. Instead of balancing the interests of different sized states, California's two senators represent a disenfranchisement of 36 million voters in relationship with Wyoming. The framers may have been right in 1787, but their judgment on this matter, at least reflected by presidential choices, is wrong today.

The framers made no provision for political parties in their Constitution. This oversight has become a serious problem in recent years. The British Parliamentary System recognizes that there will always be more than one party. The leader of the majorityThis arrangement gives the leader of parliament, the prime minister, the ability to govern if he can unite his own party behind his platform, a relatively easy proposition, given that all members of his party stood for election on the same platform.

The American system divides government between political parties. This division makes legislation more difficult to pass and slows down the process of government. James Madison argued that representative democracy rather than direct democracy because he claimed that direct democracy gave rise to factions. Madison defined a faction as a group of citizens united in some passion or common interest against the interest of others. He singled out the factions that arise from inequality of wealth and argued that a representative democracy would protect the minority from the majority.

Madison believed the best way to guard against factions was to create a representative democracy. Direct democracies, he claimed, always failed within a short time. The difficulty that arises here, which is a major difficulty with all opinions expressed by the framers, is that these conclusions are drawn on examples with almost no data. The number of direct democracies documented by history in Madison's day was precisely one, the direct democracy of Athens during the fifth century BCE. Any argument based on such limited data must be questioned.