The Constitution’s Fatal Flaw

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By Howard Chandler Christy — The Indian Reporter, Public Domain, https://commons.wikimedia.org/w/index.php?curid=662340

Ambition must be made to counteract ambition. . . . 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.¹

Federalist Paper 51 by James Madison or Alexander Hamilton

As the presidential election of 2020 hurtles into its final month, the chaotic press of events overwhelms us. We struggle to process and understand the centrifugal forces ripping our nation apart. Last week’s presidential debate had the dignity and intellectual fervor of a professional wrestling match. Do we even remember that the Senate is racing to confirm a new justice despite the President and Republican senators’ diagnosis with Covid-19? The sorry state of the Boston Red Sox provides no refuge for beleaguered New Englanders. Even Cam Newton has Covid-19.

Turning off the television and our news feeds is now an essential component of self-care. Keeping current on all fast-breaking stories prevents us from developing a larger perspective. History reminds us that the election of 2020 will eventually fade into the distant past. Likewise, the American empire, like all empires, will eventually collapse.

We must revisit our partial narratives of American History to understand the roots our current predicament. The lessons of the past two hundred and fifty years of American history reveal the deep resilience of American democracy. They also expose the structural flaws of the Constitution that have privileged the voices of elites and prevented us from confronting our deeper national challenges.

The Constitution was written in 1787 after years of intractable political crises. The Articles of Confederation had provided the necessary structure to win the Revolutionary War and make peace with England. Without the bond of war, they proved too weak to settle internal squabbling among the states and resolve the major crises of the 1780s. The elites of the day soon concluded they had no choice but to reassert control over the fledgling country. They began by changing the terms of public debate and then establishing a new and strengthened form of government

James Madison and other founding fathers had identified several interlocking problems facing the country. The Confederation Congress was deeply in debt and had no effective taxing authority. They were unable to pay outstanding debts or build a viable government. England imposed tariffs on American goods while flooding our market with cheap manufactured items. States erected trade barriers against one another. England refused to abandon military posts on American soil.

In addition, a series of debtor rebellions also threatened the stability of the new governments and the security of the nation. Daniel Shays led indebted farmers to take up arms against the Massachusetts government and shut down court houses to prevent the foreclosure of their farms. In Rhode Island, the government passed laws that all but cancelled the debts of the poor causing creditors to flee the state.

The common people had learned the lessons of revolution too well. They were rebelling against the new American elites who controlled state governments and appeared distant and arbitrary to struggling farmers. Madison, Franklin, Adams, Hamilton, and Washington all concluded the gains of the revolution would be lost without a stronger national government to stabilize the new nation. At the same time, having just fought a war against aristocratic and monarchist England, they still feared a too powerful government. The balance between freedom and control had to be maintained to prevent anarchy and tyranny.

Madison completed an exhaustive study of ancient and modern republics. Seeking lessons that could be applied in the United States his research formed the basis for his pamphlet “The Vices of the Political System” and the subsequent Virginia Plan presented at the Philadelphia Convention. Madison insisted on the importance of dividing power and instituting strong checks and balances. He also believed that a properly structured republic could control factions which had bedeviled past republics in larger countries². But no plan would work without a clear understanding of human nature and an educated citizenry that could cooperate and compromise.

Despite claims by conservative Christians about the “Godly Men” who created the Constitution, the founders were also strongly influenced by Deist and Enlightenment and thought. Selective quotations can be used to prove almost anything, but contextualized analysis reveals the many tensions between the founders’ religious beliefs and orthodox Christianity. Most founders would be profoundly uncomfortable in contemporary conservative churches and reveled in new discoveries in science and political philosophy. Nevertheless, they did accept the premise that human beings possess a fatal flaw or original sin². As Lord Acton so famously put it, “Power corrupts, and absolute power corrupts absolutely.”

Either Madison or Hamilton addressed these human frailties with poetic language in Federalist 51.

“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.”

The author begins with the assumption of a flawed humanity. Government must be strong enough to restrain bad behavior. But it also must be sufficiently divided to guard against tyranny.

Most Americans are familiar with the basic structure of the American government from civics and history lessons. Yet oversimplified lessons have obscured the messier and more complicated story of how back room deals that enable bills to become laws The legislative branch is subdivided into a Senate and a House of Representatives, the President heads the executive branch, and the judicial branch resolves disputes and rules on the constitutionality of actions of the other two branches.

Presidents are elected for four years, Representatives for two, Senators for six and Justices are appointed for life. Most of the leaders are insulated from the passions of voters while acting in the best interests of their constituents. Yet wealthy planters and merchants often failed to empathize with enslaved Africans or struggling farmers, sailors, or mechanics. Today the donor class and powerful interest groups drown out the voices of average voters.

When the Constitution was first written only the members of the House of Representatives were directly elected. In addition, only white men with property had the right to vote. The very system was designed to protect the wealthy from the people rather than create a true democracy.

Subsequent generations gradually amended the Constitution and changed laws to make it more democratic. Jacksonian democrats lifted most property qualifications for voting. Constitutional amendments removed limitations on suffrage for all citizens eighteen or older without reference to race, sex, or gender. Nevertheless, many anti-democratic features remain. The electoral college has thwarted the will of the majority in two of the past five elections. The structure of the Senate greatly magnifies the power of rural and less populous states. The disproportionate power of presidents and senators in selected judges may have lock conservative interpretations in stone for the next generation.

While political scientists have been proposing many solutions to these problems it remains almost impossible to enact them. Amendments requires a two-thirds vote of Congress and the ratification of three quarters of the states. Why would any interest group or region voluntarily give up its power to allow their political enemies greater power and influence?

Yet we have no choice but to press forward with needed reforms. The very inefficiencies of the Constitution which were designed to prevent tyranny have now brought the nation to its knees. We are completely unable to respond effectively to the myriad of challenges facing our country. Our two preferred solutions to any problem are throw money at it or bomb it into oblivion.

The country is at a perilous crossroads. We can either find ways to cooperate across partisan divides to solve pressing challenges and reform the Constitution or we risk becoming a failed state. Without shared solutions we face the grim reality of Civil War or dissolution of the Union. The “better angels of our nature” have fled the national stage.

Lincoln famously pleaded in his first inaugural address in March of 1861,

“We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection⁴.”

His prayer fell on deaf ears and we became resentful enemies. Neither Civil War nor Reconstruction could reunite the fractured Union. The sectional bargain of the 1890s included a restless push to world empire. Domination of nonwhite nations abroad was paired with Jim Crow segregation at home. Whites reserved power and privilege for themselves. Many of us cling desperately to one sided stories of the past.

As a country we have returned to the fundamental dilemmas of the Revolution and Civil War. Do we believe in the American ideals of equality, opportunity, freedom, and justice, or would we rather preserve our racial and caste system into the future? Our Constitution must be reformed to strengthen the power of voters to govern themselves. Yet checks and balances are still necessary to preserve us from the tyranny of majority and minority factions.

Our journey toward reconciliation and healing will not be easy. We need to truly hear other people’s stories in a way that we can move forward together. An opportunity for shared service across race and class lines could be a crucial step. Renewing our commitment to providing all Americans with a first-class education is also essential. Students and adults must understand multiple perspectives, learn to think deeply and critically, and debate the key challenges of the past and present. These re-imagined schools must also be places where students’ voices and visions are honored. Doubling down on the failed structures of the past can be as destructive as recklessly abandoning its lessons.

All of us can engage in collective listening and relearning of our shared and often contentious histories. Often students understand what is broken better than their teachers. Parents, grandparents, and community elders need to listen as well as teach. Only then can we create communities of respect, understanding, and trust. Community by community we can forge a reimagined American dream. We will never eliminate all the flaws in ourselves or our government. But only by beginning the work together can we blaze a better path forward.

Notes

¹The Avalon Project at Yale Law School, https://avalon.law.yale.edu/18th_century/fed51.asp

²James Madison, The Vices of the Political System. Accessed at https://archive.csac.history.wisc.edu/14_Vices_of_the_Political_System_of_the_United_States.pdf. The Virginia Plan is available at https://avalon.law.yale.edu/18th_century/vatexta.asp

³On the founders religious views see for example Steven Walman, Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America (New York: Random House, 2009), Mark Noll, America’s God: From Jonathan Edwards to Abraham Lincoln (Oxford: Oxford University Press, 2002), or the excellent PBS series God in America. https://www.pbs.org/wgbh/americanexperience/films/godinamerica/

⁴ Abraham Lincon, First Inaugural Address. Accessed at https://avalon.law.yale.edu/19th_century/lincoln1.asp.

Asking important questions about living well amid the farms and forests North and West of Boston.

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