The forgotten Constitution


When Jim Pace ran in the Republican primary for Lynn Westmoreland’s seat in Congress, I did not know him but was drawn by his claim to be a “10th Amendment constitutional conservative.” When I met him and was convinced of his sincerity on that point, other issues became irrelevant and he had my vote.

Pace’s candidacy did not get traction, perhaps because the vast majority of Americans don’t know or care what the 10th Amendment is, how it came to be, why it is important, and how our federal government has been betraying that principle for well over 50 years.

They don’t have any idea what federalism is, either, which is the states’ delegation of a few powers to the fed and keeping all other powers. The 10th Amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Public ignorance of the Constitution is hardly surprising since we have failed to require students to study civics in school for two-going-on-three generations. So a little explanation is in order.

Soon after the Declaration of Independence on July 4, 1776, work began on how the 13 colonies would govern themselves. The Articles of Confederation were developed but that arrangement was dysfunctional since there was no court system or means of law enforcement, no provision for raising revenue through taxes and changing the Articles required support of all 13 states.

America stumbled through the Revolutionary War with this system and prevailed with the surrender of Lord Cornwallis at Yorktown in October 1781, a victory over the British won – just my opinion here – by the Brits’ under-estimation of the vastness of America’s territory. The Treaty of Paris consumed another two years, and not until six years after the war ended did our founders finally convene the Constitutional Convention in the summer of 1787 in Philadelphia.

Sometimes we talk of our founders with too much reverence. Or maybe it’s just me. The 1787 gathering purportedly had the purpose of repairing flaws in the Articles of Confederation, but James Madison and Alexander Hamilton maneuvered to create a new government. Some of us like to think the backdrop for creating the Constitution must surely require the heavenly sounds of an angelic choir, and we too easily assume we can divine the founders’ “original intent” in the resulting Constitution.

The truth is there were five different plans proposed that summer, and they argued vociferously, yelled at and accused one another, and with the calming influence of George Washington as the unanimously appointed presiding officer, they debated and discarded plans until Madison’s tweaked Virginia plan was adopted. He devised the bicameral design of the House of Representatives based on population, and the appointed two Senators per state, thereby balancing concerns of large states and small. He also designed other elements of the balance of power.

Half the delegates to the Constitutional Convention were slave owners, with many of the other half wanting to abolish slavery but knowing if they pressed that contentious issue their fragile coalition would disintegrate. Just as they had to do in the build-up to the Declaration of Independence, they held their nose and cast their votes for compromise.

The convention’s conflict reached its apex when southern state delegates insisted their number of representatives in the House had to be based on a population headcount including slaves while northern states argued slaves should not be counted at all. The resulting “three-fifths compromise” provided for three-fifths of slaves to be counted for apportionment purposes.

The human rights issue begging for a solution was postponed, again, but it would later tear America apart in the Civil War. In our era, race hustlers like Al Sharpton over-simplify the three-fifths issue to be a southern dehumanizing of slaves, as if slavery itself were not bad enough, but on that particular issue they are either ignorant or inflammatory by deception. If you say both, I am on your side.

The Constitutional Convention rejected democracy as mob rule, choosing instead a republican design, not the political party but representative government wherein elected and appointed representatives speak for the people, creating a buffer between the passions of the moment and government decisions.

Keep in mind that, at the time each state considered itself sovereign and independent. Their hard sell for ratification back home was that the Constitution they agreed to would require each state to give up some of their powers to create a federal government, a compromise swimming upstream against widespread mistrust of centralized government in the aftermath of dealing with King George III, which made the 10th Amendment all the more important since it placed limits on federal power.

Proponents of having a centralized government called themselves Federalists. They believed there were some vital things the states could not do for themselves, like negotiate treaties, provide for the national defense, etc., and that creating a federal government required each state to delegate certain powers, and that federal powers had to be limited to those specifically listed in the Constitution. But the Federalists’ first challenge was to persuade the Anti-Federalists, chiefly in the state of New York.

From October of 1787 to August 1788, three Federalists — Alexander Hamilton, James Madison and John Jay — wrote a series of 85 essays arguing for ratification of the Constitution, published in New York newspapers under the pseudonym “Publius.” This collection of essays became known as The Federalist, and later The Federalist Papers.

Anti-Federalists remained unconvinced, arguing the rights of the people should be enumerated in the Constitution. Federalists countered that doing so would imply the people’s rights come from the federal government, a notion they considered dangerous.

Finally, James Madison, an artist with his pen, undertook an effort to satisfy the anti-Federalists, not by modifying the Constitution’s structure, but by adding a Bill of Rights consisting of the first 10 Amendments focusing on rights of the people.

Included were freedom of religion, speech and the press, rights to peaceably assemble, rights to petition the government on grievances, rights of the people to bear arms, rights not to be coerced to house troops, rights against unreasonable search and seizure, various rights of the accused, that the people have rights not listed, and the 10th Amendment saying the federal government has only the powers defined in the Constitution.

In September of 1788 the U.S. Constitution was put into effect in 11 states while North Carolina and Rhode Island dragged their feet another two years until they ratified in 1790.

This historic effort, beginning with the Declaration of Independence, was chock full of flaws and created by flawed people. But it was also extraordinary and slowly spread around the world in what some have called “American Exceptionalism.” Most who use that phrase are poorly informed, implying that by being Americans we are more exceptional than the people in other countries, a silly and insulting assertion.

What made the American achievement exceptional was a group of flawed people discussing with vigor how to govern themselves in a way that put individual rights at the center, provided for peaceful transfer of power, subordinated the powers of the government, established the rule of law that knew no special class of people, that separated and balanced powers to resist the self-serving nature of man, and that protected the sanctity of private property.

That, my friends, was exceptional, and we are in the process of throwing it in the trash.

As Jim Pace implied in his 10th Amendment assertion in his candidacy, the limitations on the federal government have been ignored for a very long time. Between an out-of-control Congress and federal agencies running amok with ineffective congressional oversight, they crank out over 4,000 new laws and regulations for you and me every year.

Federal programs pile up in abysmal overlap and duplication since deficit spending removes any limit on how much of your money they borrow and spend. The list of federal agencies with armed law enforcement has grown into an alarming list. Congress ignores the limiting intent of the 10th Amendment with the fig leaf of the Commerce Clause in the Constitution, abusing the intention to accommodate interstate commerce.

Our founders created a system of checks and balances to give good people a fighting chance to keep in check the self-serving tendencies of human nature. Little by little, the people we elect and appoint and hire in the federal government have found one crack after another that can be wiggled through over the years, cracks that have grown into gaping holes now considered normal. And if you believe the rule of law treats all Americans the same, you must explain to me the Clintons.

It seems any lingering respect for the Constitution is long in the rear view mirror, as underscored by our current President who picks up his Executive Order pen to deal with any law he doesn’t like while a spineless Congress does nothing about it. Meanwhile, the entire world now has mob rule through TV news, news with a drumbeat that pumps propaganda into our heads 24/7. Present a constitutional issue to the American public and you will find they couldn’t care less.

Who would have thought in America the news media would drop any pretense of journalism, as evidenced in this bizarre election year with our choice between a crook and a clown. I’m voting for the clown, but it isn’t that choice that concerns me about the media’s egregious campaign to trash the clown and cover for the crook. Without an honest media we are doomed, especially with a populace so ignorant of the Constitution they follow the media like lemmings, judging candidates by media spin on personalities, promises and failings with nary a fundamental constitutional principle in sight.

As Americans gather to listen to candidates sell themselves, they seem to have no idea we are already a socialist country with distinctions only in matter of degree, but they listen without any grounding whatever in constitutional self-discipline, apparently looking only for what sounds good at the moment.

Watching moments like those on the propaganda tube, I can’t help but think of the breathtaking stupidity of wanting every person with a pulse to vote while mounting resistance to voter ID requirements. If only we had been requiring for the last 50 years that the right to vote is earned by proving citizenship and passing a thorough civics test every three years.

I am also reminded by the dim-witted cheering at those campaign events of a dismal question and answer: “How does the Constitution die? To thunderous applause!”

[Terry Garlock of Peachtree City occasionally contributes a column to The Citizen.]