Tuesday, September 29, 2009
Monday, September 7, 2009
In June of 1776 the Second Continental Congress of the United States assembled a committee to prepare a document which would govern the land following the cessation of British rule. The resulting Articles of Confederation, based on the principle of unanimous consent by the various state legislatures as a prerequisite for action, immediately became the de facto government of the United States and was ratified in 1781. The Articles formed a nation and created a form of central government, but proponents of centralized power and control, many of whom later coalesced to form the Federalist Party, were not satisfied. They wanted a strong central government with power to enforce taxation among the States and increased ability to incur national debt. Counted among the proponents of strong central government were Northern merchants who longed for tariffs on finished goods imported from overseas and Southern gentlemen who craved official recognition of the institution of slavery and the extradition of slaves who had escaped to northern States. The Articles of Confederation, with its limited grants of power to Congress and concept of strong State sovereignty, was of no use in enforcing such matters. Legislators in the North could not force the South to obey any tariff which robbed Southern citizens to enrich Northern merchants, and legislators in the South could not force Northern populations to officially recognize the practice of slavery, which many felt was an abomination. With almost no federal bureaucratic positions created under the Articles, those who aspired to lofty positions of power were similarly disappointed.
Inevitably, a crisis occurred which provided a pretext for a renewed assault on individual liberty along federalist ideological lines. In 1786, an uprising of veterans and farmers in Massachusetts led by Daniel Shays organized to oppose the confiscation of their property and imprisonment for failure to pay the taxes which were being collected to remunerate speculators who had financed the revolutionary war effort. An army privately financed by wealthy Boston merchants put the movement down, but the practice of using any threat to the existing power structure as a pretext for a further extension of power and erosion of individual liberty was a well known tactic even in the 18th century and would be put to good use.
One year later, in May 1787, a gathering of American elites met in Philadelphia to discuss what they perceived to be the weaknesses of the Articles. Each delegate came with the particular vested interests of his home state in mind. Most of the delegates from the various states (Rhode Island delegates did not attend) were in favor of further centralizing power, with the name "Shaysite" being applied to anyone who was not. After a month of heated debate they came to the only conclusion which could possibly meet the demands of the majority of those present: the government of the United States of America would be abolished. A new federation would replace the Confederation of States outlined under the Articles, and a constitution would be drawn up to enumerate its powers. Further months of vigorous and vitriolic debate followed before a final draft was adopted on September 17th. By this time, many of the delegates, so displeased with the results, had returned home. Several others refused to sign, but in the end, 39 of the original 55 delegates appended their names to the document which would be sent to the several States for the process of ratification - ultimately completed June 21st, 1788. Following is an overview of the major points in the new constitution:
Article I - Established a bicameral Congress of the United States, and gave it the power to:
- Establish representation and levy direct taxes in proportion to population among the States, implicitly recognizing the institution of slavery with the "three-fifths" clause
- Borrow money and establish a national debt
- Regulate commerce, as it saw fit, excepting taxes on exports
- Set standards for the naturalization of citizens
- Coin money and fix the value therof, as well as the value of foreign coin
- Monopolize the delivery of mail
- Grant monopolies in the form of intellectual property rights
- Declare war
- Raise and support an army and navy, with certain limitations
- Provide for calling forth state militias to execute the laws of the union, suppress insurrections and repel invasions
- Make laws necessary and proper for the execution of all powers granted the Congress
- Suspend Habeas Corpus when required for "public safety"
- Forbid individual States from forming compacts with each other or declaring war without the consent of Congress
Article II - Established an Executive Branch of the United States, with power vested in a President of the United States of America and gave him power to:
- Command the army and navy of the United States, including the militias of the several States
- Grant reprieves and pardons for any offence, except in cases of impeachment
- Make binding treaties, with the approval of the Senate
- Appoint ambassadors, public ministers and consuls, Supreme Court Judges, and other officers, with approval from Congress
- See to it that all laws be faithfully executed
Article III - Established a Judicial Branch with power vested in a Supreme Court and in such inferior courts as the Congress saw fit and gave it the power to exercise dominion over disputes within the territory of or concerning the United States of America. The right to trial by jury in all criminal cases was established. Acts of treason were defined along with subsequent punishments to be carried out by Congress.
Article IV - Further established the subordination of individual States to federal power, giving Congress the authority to prescribe laws concerning the interrelationships of States and ensuring the extradition of slaves and criminals. The process by which new States were to admitted into the Union was outlined, republican government within each state was stipulated and the federal government was given the explicit responsibility to protect against invasion and domestic violence.
Article V - Outlined the process of amendment to the Constitution of the United States.
Article VI - Established the Constitution as the supreme law of the land, and prohibited religious tests as a qualification for public office.
Article VII - Outlined the process of ratification.
The Constitution of the United States of America, so composed, represented tremendous growth in the centralized power of the American government. At the conclusion of the Philadelphia Convention, as the delegates stepped forward to sign their names, Benjamin Franklin, a delegate from Pennsylvania, remarked to a colleague that he had often noticed the half-sun insignia on the Convention President's chair and wondered to himself if it were a rising, or a setting sun. He was now sure, he said, that it was a rising sun. Franklin's interpretation was certainly correct, for the signing of the Constitution was a beginning, and not an end to the centralization of power and the monopolization of justice by America's political caste.
I contend that the liberality with which the federal government has over the years interpreted its enumerated powers is a natural consequence, and not an aberration of the principles which were engrossed upon parchment that summer in Pennsylvania. Those who wish to restore principles of individual liberty must realize that reform within the existing framework of the Constitution cannot effect lasting change, for a step back is of no ultimate consequence to the marcher who is not induced to face a different direction. Once accepted, all principles march on until they reach their inevitable conclusions. The central principle which justified the creation of the U.S. Constitution is that it is acceptable to use force to centralize power in the hands of the few, so that the many might be protected from themselves. No doubt the majority of men and women in the world today believe this; yet I choose to be among those who are of the opinion stated by Thomas Jefferson in his 1801 inaugural address:
"Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question."
Yet, the irony implicit in Jefferson uttering these words as he prepared to sit upon his throne does not escape me -- perhaps it would be best if instead I allow Henry David Thoreau to conclude my rant against the law of this great land with words from his 1854 essay, "Slavery in Massachusetts":
"The law will never make men free; it is men who have got to make the law free... I would remind my countrymen that they are to be men first, and Americans only at a late and convenient hour... The question is, not whether you or your grandfather, seventy years ago, did not enter into an agreement to serve the Devil, and that service is not accordingly now due; but whether you will not now, for once and at last, serve God - in spite of your own past recreancy, or that of your ancestor - by obeying that eternal and only just CONSTITUTION, which He, and not any Jefferson or Adams, has written in your being."
1. Subscription list for paying and supplying a militia, 4 January 1787, Massachusetts Archives Collection, Records, Vol. 189: 64, MA.
2. BENJAMIN FRANKLIN, debates in the Constitutional Convention, Philadelphia, Pennsylvania, September 17, 1787.James Madison, Journal of the Federal Convention, ed. E. H. Scott, p. 763.