Some Thoughts on the Constitution, Culture War and Deceit

“I confess that I do not entirely approve this Constitution at present, but Sir, I am not sure I shall never approve it. . . . In these sentiments, Sir, I agree to this Constitution, with all its Faults, if they are such; because I think a General Government is necessary for us. . . . . I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. . . . . It therefore astonishes me, Sir, to find this System approaching so near to Perfection as it does; and I think it will astonish our Enemies, who are waiting with confidence to hear how our Councils are Confounded, like those of the Builders of Babel, and that our States are on the Point of Separation, only to meet, hereafter, for the purposes of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and I am not sure that it is not the best. . . . . On the whole, Sir, I cannot help expressing a Wish, that every Member of the Convention, who may still have Objections to it, would with me on this Occasion doubt a little of his own Infallibility, and to make manifest our Unanimity, put his Name to this instrument.” --Benjamin Franklin, 1787, stating his consent, if not approval of the new US Constitution, and suggesting a bit of humility in the face of human fallibility; note the comment about states slitting each other’s throats

Context

America is in the midst of an intense culture war between radical right authoritarianism operating mostly in the name of conservatism, patriotism and/or Christianity vs. democracy generally operating under various labels, e.g., democrats, liberalism, socialism, secularism, the mob, etc. The labels tend to vary depending who is describing which side. The war is multifaceted, but a bitter, vicious struggle for wealth and power is at the heart of it all, even though that is generally camouflaged as a struggle of good vs. bad, patriotism vs. anti-American subversion, or etc. In fact, the two sides are not nearly as far apart or hateful as the propaganda and irrational emotional manipulation has coaxed many people into falsely believing exists in reality. All of that is a big part of the deceit that permeates the war. 

Another major source of deceit is about the constitutional basis and authority for the competing visions of American society and law. Radical right authoritarians are now in a position to bulldoze their interpretation of the Constitution into law, often or usually over the objections of most Americans on some or most major issues.

The superb 2016 book (631 pages + almost 300 pages of ponderous, detailed notes and citations) by Harvard law school professor Michael J. Klarman, The Framer’s Coup: The Making of the United States Constitution, goes into great detail about the making of the Constitution and the circumstances surrounding it. Presumably to minimize allegations of bias, Klarman relies heavily on direct quotes from the Founders and other people alive at the time to make his points. Intended or not, his book describes in great detail how the vast radical right authoritarian culture war machine of 2020 stands on a non-existent basis in historical fact for their claims of constitutional correctness and “Founders intent” as the basis for their ferocious, self-righteous assault on American society and law. A few quotes from the book speak clearly to illustrate the deceit and a rational basis for Constitutional flexibility as society changes.

In the final analysis

These are the last two paragraphs of the book:

“In the final analysis, the Constitution -- like any governmental arrangement -- must be defended on the basis of its constituency with our basic (democratic) political commitments and the consequences that it produces. That it has been around for a very long time or that its authors were especially wise and virtuous should not be sufficient to immunize it against criticism.

Toward the end of his long life, Thomas Jefferson, who played no direct role in either the drafting or the ratification of the Constitution, sagely observed that because ‘laws and institutions must go hand in hand with the progress of the human mind’ and because each generation has ‘a right to choose for itself the form of government it believes most promotive of its own happiness,’ constitutions ought not to receive ‘sanctimonious reverence’ and be deemed, ‘like the arc of the covenant, too sacred to be touched’. As Jefferson would have recognized, those who wish to sanctify the Constitution are often using it to defend some particular interest that, in their own day, cannot in fact be adequately justified on its own merits.”

Commentary: Jefferson was very astute. First, he focuses on the human mind and its progress. Second, he is explicit that laws and institutions must go hand in hand with the progress of mind. Third, people who claim otherwise, specifically the radical right authoritarians that dominate the GOP today, argue for a Constitution frozen in time cannot justify what they want on the merits in an honest, transparent competition of ideas. Instead, they rely on legal gimmicks like “Originalism” (discussed here) to tell us what the Founders and/or the people intended and thus what the Constitution really means based on that ersatz authority. It is an illusion. This is a source of profound deceit and thus profound immorality[1] that the radical right is using against the American government, law, people and society to win the culture war.

We know we’re not perfect or all knowing

Klarman writes on the awareness the Founders had of their own fallibility: 

“Nathaniel Gorham of Massachusetts, for one, was incredulous at the idea ‘that this vast country including the western territory will 150 years hence remain one nation.’ 

The Framers did not think they were perfect. During the convention, George Mason observed that the Constitution the delegates were drafting ‘will certainly be defective, as the Confederation has been found on trial to be.’ During the ratifying contest, Elbridge Gerry noted that even ‘the greatest men may err.’ Federalist Noah webster considered it ‘consummate arrogance’ to presume that the Founders had ‘all possible wisdom,’ could ‘foresee all possible circumstances’ or could ‘judge for future generations better than they can judge for themselves.’ Because they understood their own imperfections and limitations, the Framers deliberately fashioned Article V to make amendments easier to obtain than they had been under the Articles of Confederation.” 

Commentary: Clearly, the Founders intended a document that changes as society changes. That is the opposite of the position the radical right authoritarians take in making their assault on American society and law.

The framer’s mistaken assumptions

Oops, we goofed. Mistakes were made:

“The framer’s mistaken assumptions meant that the system they designed sometimes worked very differently in practice than they had anticipated. For example, the Framers assumed that political actors in different branches of the national government would have self-interested incentives to challenge each other’s assertions of power. Yet the existence of political parties, which the Founders did not contemplate, drastically altered the operation of the system of checks and balances. Specifically, expected the president and congress to be adversaries to be competing for power, the rise of political parties meant that the two branches -- if controlled by the same party -- might be more likely to coordinate their efforts than compete with one another.

Similarly, the development of political parties radically altered the practical workings of the electoral college system. The Framers assumed that presidential candidates would rarely command majorities in the electoral college, and thus ‘nineteen times in twenty,’ the House of Representatives would have to pick the president (from among the top five vote getters in the electoral college).” (emphasis added)

Commentary: The Founders warned against political parties.[2] They simply did not foresee their rise and the consequences. Party loyalty overwhelmed the incentive to compete they built into the Constitution. 

Footnotes: 

1. Moral reasoning: Deceit that misleads people and leads them to act on the basis of false information and beliefs based thereon is immoral because it steals by fraud from people their right to decide matters for themselves on the basis of facts and true truths. Deceit thus subverts and co-opts the progress of affected human minds and societies. 

2. For example, Washington wrote this in his 1796 farewell address to the American people where, among other things, he advised American citizens to view themselves as a cohesive unit and avoid political parties:

I have already intimated to you the danger of parties in the State, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.