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.