I have it on very good authority that all human constitutions are subject to corruption and must perish unless timely renewed by a reversion to first principles.1 For the next few minutes, and I dare hope longer, I will presume to ask you to consider our Constitution. One of the principal objections to the Federal Constitution remains the obvious drift from the principles of 1776 (and the Enlightenment more generally). That gulf appears even wider today. My argument is that our Constitution has been corrupted to the point it no longer serves interests of liberty. We must take active steps to ensure it will not perish.
Like any sound lexicographer, I start by defining key terms. By “liberty,” I don’t mean the childish fantasy of doing or saying whatever we fancy. Instead, I mean Thomas Jefferson’s recitation of natural law: “everyone comes into the world with a right to his own person and using it at his own will.”2
In the summer of ‘76, “liberty” was on the lips of every patriot. Our united hope was to break the iron grip of the monarchy. Our solvent would be the radical, democratic notion that no man was (inherently) better than any other. As the Declaration of Independence states:
We hold these truths to be self-
evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.3
By this bold stroke, we announced our sovereignty.
Of course, some observed (correctly) the Declaration’s memorialization of Enlightened truths — such as the self-evident equality of man — did not accurately capture life in the New World. Only seven years before, Mr. Jefferson himself had placed the following advertisement in The Virginia Gazette:
Run away from the subscriber in Albermarle, a Mulatto slave called Sandy, about 35 years of age, his stature rather low, inclining to corpulence, and his complexion light; he is a shoemaker by trade, in which he uses his left hand principally, can do coarse carpenters work, and is something of a horse jockey; he is greatly addicted to drink, and when drunk is insolent and disorderly, in his conversation he swears much, and his behaviour is artful and knavish. He took with him a white horse, much scarred with traces, of which it is expected he will endeavour to dispose; he also carried his shoemakers tools, and will probably endeavour to get employment that way. Whoever conveys the said slave to me in Albermarle, shall have 40 s. reward, if taken up within the county. 4 £ if elsewhere within the colony, and 10 £, if in any other colony, from THOMAS JEFFERSON.4
The idea that people in the New World were treated equally in fact or under law is a falsehood which cannot be whitewashed. The Enlightenment’s core tenet — that Reason’s gift to man was equality — meant in practice that no one, not even the King, ought to dictate what propertied white men may do.
“In his mind’s eye, Jefferson envisioned a Virginia in which he and others like him were beyond the reach of the governor and council.”5 The landowning class had no use for official scrutiny with respect to enslaving, refusing to honor debts (some inherited), or clearing out indigenous peoples. But in the war years and immediately thereafter, we all learned that, unchecked, a vacuum of supreme authority leads to anarchy.
The Articles of Confederation acknowledged each state as an independent republic. Their state assemblies exercised de facto legislative, executive, and judicial powers. And because no republic wished to subordinate its people’s sovereignty to a foreign or federal power, the states were truly a patchwork of varying and rival jurisdictions. Differing species of monies and weights and measures obstructed trade. Foreign relations were dangerous and difficult if not impossible. Local interests and cronyism plagued policymaking. Even Mr. Jefferson began to recognize the appeal of a strong, central authority.
In the early 1780s, with English armies defeated and war indebtedness coming due, the state assemblies began to exercise in earnest their powers of taxation, eminent domain, and distribution. With fresh memories of Cornwallis’s surrender at Yorktown in mind, the tyrant no longer appeared to be the King. Nay. The tyrant now appeared to be the people’s representatives themselves.
But how could power be wrested back from the mob? Didn’t we fight, kill, and die so sovereignty would reside with the people?
The Federalists proposed a solution. They believed in government by a better sort of person.6 Although such sentiments ran counter to the Whiggish philosophy underpinning 1776, the “better sort” proposed to dilute the people’s sovereignty by spreading it thinly across not only state but also federal lines. Separate and balance local and federal governmental functions so that stability may reign. Only under a stable, supreme central authority could commerce flourish and foreign relations be profitable. Some, like the much-
adulated John Adams, even sought to bestow the presidency with life-long and hereditary terms! A monarch by another name, Mr. Jefferson may well have quipped in a tediously long, handwritten letter.
How could the nouveau aristocracy accomplish constitutional changes so seemingly antithetical to the ethos of 1776?
Simply put, they did what all good political strategists do. They used the rhetoric of their opponents against them.7 They stressed the new Federal Constitution’s emphasis on representation of the people’s sovereignty. To accommodate the political ambitions of the common sort, it would only be proper that the federal government maintain a national assembly. And yet, per the proto-monarchists Messrs. Hamilton and Adams, an upper house ought to be devised to provide a necessary check to the people’s passions. To be doubly sure, a federal executive must be empowered to exercise a veto on all legislation to ensure nothing radical — like an income tax, forgiveness of indebtedness, or redistribution of wealth — would ever be enacted. Veterans of the war with England, do not fret: because each and every manifestation of local and federal government represents the people, nothing could be more democratic than the Federalist Constitution. Sure, and I have some swampland near Disneyworld you might be interested in purchasing.
“By using the most popular and democratic rhetoric available to explain and justify their aristocratic system, the Federalists helped to foreclose the development of an American intellectual tradition in which differing ideas of politics would be intimately and genuinely related to differing social interests.”8 If it be democratic to bind the people’s will so it may never manifest in effective legislation, then what red-blooded, patriotic child of liberty could possibly protest?
In a very real sense, a small but powerful minority willed this country to become a revenue generator for the better sort while paying mere lip service to personal liberty. My, how things have not changed. Go ahead, cry for months about the freedom not to be vaccinated while whistling past the graveyard of public education, civil rights, and equal opportunity. True, Americans today may enjoy the gift of convenient consumerism, but at what cost?
Given this initial and ongoing disconnect between rhetoric and reality, is it any wonder we have devolved into factions who fight over things which ought to present no controversy?9
Is it any wonder we are enslaved by an unchecked Supreme Court’s unconscionable interpretation and application of the Second Amendment?
Is it any wonder gunfire is the leading killer of American children?
And yet somehow, for some cryptic reason, it is deemed more patriotic to be concerned with the gender of children playing sports. Are we under the spell of the Cartesian demon?
Lurking behind this madness is the United States Supreme Court. The framers of the Constitution expected the judicial branch to perform the critical function of vetoing radical legislation, should such populism escape the check of the Senate and executive. But it would be absurd, as Chief Justice John Roberts suggests, to suppose Congress cannot impose a Code of Conduct on the justices or expand the number of justices on the Court, particularly when there is ample precedent and a necessity to counter the hypocritical opportunism that led to the Court’s reactionary supermajority.
There can be no true balance or separation of powers when any single branch of the government becomes the tyrant our democratic experiment is designed to prevent.
And even if you believe in a better sort, as I once did, our democratic experiment was meant to be founded on the concept of personal liberty. Which, to be clear, means your morality, religion, or culture war ought not to be imposed on me. Certainly not by any government.
But where there is the possibility of reform, there is hope. The confederated republics of 1776 “possessed what Thomas Pownall called ‘a healing principle’ built into their constitutions.”10 After all, the American venture was (and remains) an experiment. The imperfections of the early state constitutions (according to both Federalists and Jeffersonians) were saved by the one perfect mechanism they contained: “The idea of incorporating, in the constitution itself, the means of its own improvement.”11 Whether we believe the Constitution represents actual improvement over the Articles is moot; significantly, its enactment demonstrates the possibility of peaceable reform.
In 1787, by ratifying the new Federalist Constitution, “Americans had demonstrated to the world how a people could fundamentally and yet peaceably alter their forms of government.”12 “This revolution principle — that, the sovereign power residing in the people, they may change their constitution and government whenever they please — is not a principle of discord, rancour, or war; it is a principle of melioration, contentment, and peace.”13
“Let us, then, fellow-citizens, unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things.”14
Let us learn from experience. The Enlightenment’s principles of Liberty and Equality ought not to be qualified. We are all born and die alone, as equals. We are all entitled to personal liberty. But personal liberty, like the majority’s will to be rightful, must be reasonable.15 Liberty does not entitle us to expend on superfluities when so many go unsheltered, unfed, and unclothed. Personal liberty does not mean entitlement to take someone’s life, surely not to protect mere property.
Let us shake off the madness of gun worship, whatever we do.
Let us renew our Constitution so we are no longer enslaved by the Second Amendment or exploited by a tyrannical, unchecked Supreme Court.
Let us move on from the antiquated ridiculousness of the Electoral College and partisan gerrymandering. One person, one vote.
Let us free ourselves from the bonds of the two-party system. Let us consider a single federal legislative house based on proportional representation.
These are mere starting points. Whatever tomorrow brings, let us work arm-in-arm toward a future in which we say what we mean and honor what we say: all are created equal.
1 Machiavelli, Discourses on Livy.
2 Jon Meacham, Thomas Jefferson: The Art of Power (New York: Random House 2012).
3 Drafted by a 33-year-old Jefferson just months after his mother’s passing and during his wife’s serious illness. Tommy could have been a big-law associate!
4 Meacham.
5 Meacham.
6 “One half of the people who read books[] have so little ability to apply what they read to their own practice, that they had better not read at all.” Yours truly, “On the Absurdity of a Bill of Rights,” American Magazine (NY, Dec. 1787); see also Plato, The Republic.
7 E.g., today’s national front populism.
8 Gordon S. Wood, Creation of the American Republic (Chapel Hill, UNC 1968).
9 “If the present Congress errs in too much talking, how can it be otherwise in a body to which the people send [x] lawyers whose trade it is to question everything, yield nothing, & talk by the hour? That [x] number of lawyers should do business together ought not to be expected.” Thomas Jefferson, Autobiography.
10 Wood.
11 Id. (internal quotations and citation omitted).
12 Wood.
13 James Wilson.
14 Jefferson, First Inaugural.
15 “[B]ear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable, that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.” Jefferson’s First Inaugural Address, 1801.
