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.
