U.S. Constitution Under Attack!
October 2019 Issue
Posted on: October 06, 2019
By Tom Gow
It is generally a strategic mistake to get caught up in disputing the pretexts for revolutionary demands. Rather our primary concern always needs to be to expose their disguised objective of unrestrained government power. However, with that caution in mind, sometimes debunking the claims can strengthen our understanding of fundamental principles.
And so it is with the cover story for Harper’s October 2019 issue. The Harper’s story, actually titled “Constitution in Crisis — Has America’s founding document become the nation’s undoing?,” is based on the comments of “five lawmakers and scholars.” We would characterize the group as largely a bunch of anti-Trump, pro-Democrat Leftists seeking to undermine intellectual support for the Constitution. Harper’s invited these five to a forum at New York University’s law school “to consider the constitutional crisis of the twenty-first century.”
Throughout the Harper’s story, we encounter a Leftist plea for shallow political correctness and a disparaging of America’s Founders and the Constitution they created. To kick off its article, Harper’s explains the ostensible purpose of the forum:
America’s Constitution was once celebrated as a radical and successful model for fledgling republics across the world. But decades of political gridlock, electoral corruption, and dysfunction in our system of government have forced scholars, activists, and citizens to question the document’s ability to address the thorniest issues of modern political life.” [Emphasis added.]
Freedom First Society (FFS): Of course, the Harper’s article ignores the impact of a Conspiracy on “modern” political life. Moreover, America’s Founders never suggested that the Constitution by itself would guarantee good government. In his 1796 Farewell Address, President George Washington wisely counseled Americans on what other supports they needed to cultivate if they wanted to continue to enjoy the fruits of freedom:
Promote, then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened….
Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness — these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them…. And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.
The Left ignores its role in undermining those supports, such as religion as the necessary basis for morality.
Rosa Brooks (moderator): “After [each of my students in my constitutional law classes] has a chance to talk about how great it is that the United States has this very, very old written Constitution, I ask them how they would feel if their neurosurgeon used the world’s oldest neurosurgery guide, or NASA used the world’s oldest astronomical chart to plan space-shuttle flights, and they all get quiet.”
FFS: Here Georgetown Law Professor Brooks introduces clever sophistry. America’s Constitution was based on extensive study of historical experience. It reflected a deep understanding of human nature, which does not change. It’s checks and balances were designed to put roadblocks in the way of dangerous human ambition for accumulating power, evident throughout history. Much of that wisdom was recorded in the Federalist Papers. Also, we received wise counsel in President Washington’s Farewell Address:
The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power and proneness to abuse it which predominates in the human heart is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.
Throughout history and in much of the world today, freedom is the exception, not the rule. Freedom cannot be taken for granted. The moderator and participants ignore that record and principle. The participants also gloss over the fact that the Constitution is often ignored in fedgov’s drive to accumulate more unconstitutional, socialist power.
Louis Michael Seidman: “At the time the Constitution was written there was another binding document, the Articles of Confederation…. When [the Constitution’s authors] met behind closed doors … one of the first things they decided was to disregard their instructions and just ditch the Articles…. It’s a neat trick to get from that to a time when people feel bound to respect the document.”
FFS: We wish it were so that people today (particularly our elected representatives) feel bound to respect the document. Georgetown University Law Center Professor Seidman ignores the higher principle of sovereign assembly. The people’s chosen delegates to a constitutional convention had a well recognized right to change their form of government. Nearly all of the state constitutions and declaration of rights endorsed that principle. (See, for example, “The Sovereign Dynamic.”)
In his Farewell Address, George Washington admonished:
The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the constitution which at any time exists till changed by an explicit and authentic act of the whole people is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.
David Law: “Thomas Jefferson would be rolling over in his grave. He thought that every generation should rewrite the Constitution. It should be revised every nineteen years.”
FFS: Nonsense! Although the Founders included provision for making amendments and even calling a Constitutional Convention, they feared a second Con-con. Deputy Charles Pinkney of South Carolina insisted: “Conventions are serious things and ought not to be repeated.” In a 1788 letter, “Father of the Constitution” James Madison wrote: “Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a second….”
Mary Anne Franks: “We have not, as a country, fully confronted the fraudulent nature of the Constitution and the founding itself. The revolutionary spirit was always, from the beginning, a limited one. It was a revolution for some people, and this idea that we threw off the yoke of tyranny was immediately constrained by the idea that you didn’t want to throw it off too much. The founders didn’t want to throw it off for slaves, and they didn’t want to throw it off for women…. [E]very word of the Constitution — starting from this premise of ‘we the people’ — is a lie.”
FFS: Fraudulent? A lie? Outrageous! On the other hand, Professor Franks is correct that the American revolutionary spirit was a limited one. The revolution was waged reluctantly, after repeated suffering, for a limited objective — independence from Great Britain. By contrast, revolutions promoted under utopian banners as a complete upheaval of society killed millions in the twentieth-century alone.
Such revolutions were conceived by men of letters who lived in ivory towers divorced from the reality of governing. America’s Founders were men of affairs with real experience. Although, the Founders convened in Philadelphia to address problems in the Articles of Confederation and ended up by proposing a new federal government, they also recognized that slavery was immoral. There was no “tension,” as Franks suggests, “between this idealized view of the Founding Fathers as almost divine figures and at the same time ones who couldn’t possibly have understood that slavery was wrong, or taken a real stance against it, or declared that women were equal human beings to men.”
Yes, George Washington was a slaveholder. But he also stated: “there is not a man living who wishes more sincerely than I do to see a plan adopted for the abolition of slavery.” And his last will and testament stated:
Upon the decease of my wife it is my will and desire that all the slaves which I hold in my own right, shall receive their freedom. — And whereas among those who will receive freedom, there may be some, who from old age or bodily infirmities, and others who on account of their infancy, will be unable to support themselves; it is my will and desire that — they shall be comfortably clothed and fed by my heirs while they live.
Moreover, the Constitution did not deny women rights. The issue of women voting was left to the states, and some states did extend early suffrage to women.
Lawrence Lessig: “So I think one of the really important questions is: Do you expect people to rally around a document that has no connection to the democracy of today, or yesterday, or even forty years ago?
FFS: Lessig, a professor at Harvard Law School, should learn that America is a republic (a rule of law) and not a democracy. James Madison, “Father of the Constitution,” wrote in Essay 10 of The Federalist Papers that pure “democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”
And as long as Establishment forces control the media that informs Americans and our universities, which radicalize our youth, we would expect increasing disillusionment with the Constitution.
Franks: “The position I’ve taken as a preliminary step is to think, ‘Well, is there anything in the Constitution that is meaningful here, in a larger sense?’ And I think the Fourteenth Amendment’s equal protection clause is where a lot of our efforts might be focused and energies spent.”
FFS: We’re not surprised. The Fourteenth Amendment, adopted in 1868, reversed important principles in the Constitution, enforcing federal provisions on the states. And it was further abused by misinterpretation. It became a vehicle for judicial activism on behalf of various constituencies.
One of the continuing benefits of the Constitution is that the elitist Left sees it as still somewhat of a speed bump in their road to socialist revolution.
Seidman: “Maybe the right way to think about the Constitution is not as a legal document at all, not as a lease or will or something like that. Instead, think of it as poetry. As a poem, or symphony. And if you think of it that way it can be treated as a symbol that unites the country…. Now, nobody would say that you have an obligation to obey a poem or a symphony.”
FFS: Now, it’s getting really ridiculous. Or perhaps, revolutionary ambition is being revealed. Utopian revolutionaries do not want any constraints on their power.
Lessig: But the problem is that we have a president who treats it like a poem, or a dirty limerick — he treats it like something he doesn’t have to respect or follow, and I don’t think that’s a good idea.
Seidman: “The very last way we want to confront Trump is with the Constitution as a legal text. That is a way of turning this argument over to lawyers…. In the end, the problem with Trump is not that he’s violating some technical legal provision in the Constitution; it’s that he’s writing bad poetry.”
FFS: Revolutionaries want unrestrained authority for themselves, but they won’t want anyone else to exercise it.
Law: “I see Americans trapped within a box, unable to transcend the constitutional way of thinking. Countries actually don’t need written constitutions. The United Kingdom doesn’t really have a constitution. New Zealand doesn’t have a constitution. In a functioning democracy, you don’t need one.
FFS: There again, we encounter the scam that purports the U.S. is a democracy — rule by the majority, where everything is up for grabs, rather than a republic, a rule of law, which protects minority rights. Of course, if government has total authority, as in a monarchy, a written constitution may not be necessary. But these radicals ought to ask themselves, how the rare impeachment would be conducted if there were no Constitution.
Lessig: “I think what we have to focus on in a very precise way is: What are the steps that could get us to a place that could make the democracy a responsive democracy? How do you break this deeply unrepresentative system that we have now?”
FFS: The Establishment-supported revolutionaries already have that in motion. Controlling the information and perspective people receive makes them somewhat responsive to the radical agenda. But not entirely. For example, the people want their government to control its southern border. But the government resists, because of Establishment influence. That same Establishment supports revolutionary activism and major universities.
Although the intellectuals participating in this forum did not come up with an agreed plan of action, at the very least they are helping to develop intellectual support for dumping the Constitution when a real crisis occurs. One such crisis would be the further merger of the U.S. into a stronger regional government, following in the footsteps of the EU.