We the People...(II)

Twenty-first Century Americans – at least those whose interest in the Constitution transcends having been required to memorize its Preamble in grade school – love to debate whether the document is fundamentally conservative or liberal. The factiousness that has defined our nation’s political discourse in recent years has merely stoked the rhetoric without settling the argument.

In fact, one of the reasons that the Constitution has survived – even thrived – for the past two centuries is that it is an amalgam of so many hard-won compromises and political accommodations that it can be cited as user-friendly by virtually any segment of the political spectrum.

Forced to choose, however, this observer would tend to fall off the fence on the side of those who view the Constitution as being fundamentally liberal in spirit. For starters, the Constitution is a decidedly populist document. Chief Justice John Marshall held that it is a social contract created by the people. I suggest that the capitalization of the “P” in “We the People…” is not a mere typographical flourish.

Furthermore, the Constitution literally guarantees (Art. IV, Sec. 4) a “republican form of Government”, and constitutional republics such as the U.S. are, by definition, a form of liberal democracy. Article V is an unequivocal set of instructions for effecting subsequent change in the Constitution through legislative amendment, and indicates that the framers did not consider the document an immutable embodiment of time-honored concepts of enlightened governance (i.e., philosophically conservative) but rather the avatar of “a more perfect Union”, embracing such socially-beneficent notions as “justice”, “domestic Tranquility”, and “promotion of the general Welfare”. It isn’t until we get to the subsequent Bill of Rights that conservative tenets of individual rights and liberties are directly addressed.

Finally, the Constitution (in Art. I, Sec 7) places squarely in the hands of the House of Representatives (the only branch of the Federal government that was – at the time – elected directly by the people) the exclusive power to originate laws respecting taxing and spending, the very lifeblood of the republic.

But, for me, it was the opponents to ratification that best define the Constitution’s essential liberality. States-rights traditionalists (Anti-Federalists) for the most part, many of them would have preferred to amend and retain the irremediably flawed and outdated Articles of Confederation. Among their number, FYI, were such genuinely unimpeachable patriots as Sam Adams, Patrick Henry, Thomas Paine, and West Barnstable’s own Mercy Otis Warren.

Let me hasten to concede, however, that the Constitution as written and ratified had at least one notably illiberal facet, that of suffrage. Slavery was the snake in Paradise.

The constructing of Article I, Section 2 posed a knotty problem for the framers: how to enumerate a state’s population for the purpose of representation (the divvying up of congressional districts) and taxation. If slaves were considered as being property then they could not be considered “persons” and would not be counted. If considered as persons, however, they would have to be – like women – counted fully, albeit – like women – disenfranchised in most states. Slave-owners wanted them counted so as to increase their own political power in Congress, even while continuing to treat them as chattels. A compromise was reached in that that three-fifths of the total number of slaves (referred to as “other Persons” in the Article) would be included in a state’s population total. That accommodation had the effect of keeping the South’s political clout disproportionately high for decades.

Disenfranchisement would continue be an ugly fact of life in the U.S. until after – and, in some cases, well after – the Civil War, when the 13th, 14th, 15th, 19th and 26th Amendments (the first three of which are known as the Reconstruction Amendments) came into effect.

Amendment XIII freed all the slaves in 1865, whereas Lincoln’s 1863 Emancipation Proclamation had freed only those held within the Confederate states.

Amendment XIV, ratified in 1868, granted U.S. citizenship to former slaves and eliminated the notorious three-fifths provision. It also prohibited the states from violating the privileges and immunities of a citizen, and guaranteed due process of law -- and equal protection under the law -- to all.

Amendment XV in 1870 eliminated “race, color or previous condition of servitude” as a barrier to voting.

Amendment XIX of 1920 stated that the right of citizens to vote may not be denied on the basis of sex.

Amendment XXVI – The “Voting Rights Amendment” – set 18 years as the minimum voting age as opposed to the 21 years required in most states since the Constitution’s original ratification in 1788.

So we see that Article V has repeatedly proven its worth as a facilitator of progressive change. But it is useful to note in conclusion that, despite over 10,000 prospective amendments having been introduced in Congress since 1789, only 17 (beyond the 10 constituting the Bill of Rights) have prevailed; a tribute to the “checks and balances” system built into our government that has insulated us against a run on the Constitution by transitorily ascendant political factions.

This article also ran in The Barnstable Patriot.