Independence Daze and the Failure of the Constitution

Independence Day celebrates the signing of the Declaration of Independence, of course. Many people refer to this national holiday as “the Fourth of July”, a sad substitution in my view. To them it’s a day off at the pool or beach, with barbeques and fireworks.

(Incidentally, what we call the Declaration of Independence actually does not bear that title. The heading reads: “The unanimous Declaration of the thirteen united States of America.”  The word “independence” appears nowhere in the document.)

Perhaps people use “Fourth of July” instead of “Independence Day” because of the hazy narrative surrounding the formation of America, dimly recalled from their public school education:

On the Fourth of July, 1776, citizen farmers, smiths, storekeepers and tradesmen—relatives, neighbors, and friends—took up arms in large numbers. Against enormous odds, the fledgling American nation rose up, slowly but surely beating back the British in stirring battles at Lexington, Concord, Bunker Hill, Saratoga, and Yorktown. At some point, General George Washington crossed the Delaware River with his Continental army, defeated the British, and won the war. Before returning to their farms and shops, the victorious militiamen paused to develop the Constitution, which laid out the most perfect form of government ever conceived.

The facts vary from this simplistic account.

Colonial aggression towards the British began long before the Declaration of Independence. It included demonstrations, sabotage, sneak attacks, and countless acts of passive resistance. But very few colonists were involved. Most kept their heads down, openly sympathizing with the Crown or at least acquiescing to its demands. Colonists who actually fought Redcoats in the field never amounted to more than three percent of the population.

The war itself dragged on for more than eight years, from the “shot heard round the world” at Lexington in April 1775 to the British evacuation of New York in November 1783. Another three years passed before delegates from the States were sent to Annapolis in September 1786 to recommend improvements to the Articles of Confederation, the 1777 mutual defense pact binding the thirteen colonies. The Annapolis convention produced a request for yet another convention to study a broader set of issues, which resulted in the Philadelphia Convention of May-September 1787.

Although delegates to the Philadelphia Convention were instructed to improve the Articles of Confederation, some attendees rejected that task in favor of creating a new national government with broad powers over the individual States. We call behavior like this today "mission creep". James Madison and Alexander Hamilton, among others, favored a radical plan to produce a powerful national government. They persuaded other attendees of the Convention to go along. After months of political horse trading, during which multiple schemes were pushed, argued, and rejected, a final compromise emerged which became the original Constitution for the United States. It was sent to the States for their individual ratification.

When the new Constitution was revealed to the States and their citizens, many were astonished. What happened to fixing the Articles of Confederation? What is this new creation, a “federal” government? Those who opposed ratification became known as Anti-Federalists, among them Patrick Henry and Samuel Adams. They were concerned that a strong central government was a threat to individual rights, and that the President would become a king. The Federalists—Madison, Hamilton, and others—said this was impossible. They pointed to the new government’s careful separation of powers into independent branches, which would exert checks and balances against each other. The federal government would be strong enough to get certain things done, but only those things, and nothing more. The Federalists pleaded for ratification, saying, in effect, “This is the government we need. Surely you appreciate the elegance and beauty of what we've created!”

At first some did. Five states approved the new Constitution in short order. But the rest balked. The chief stumbling block was the complete absence of any mention of individual or State rights in the document. Federalist James Madison actually argued it was better NOT to include them—he claimed that once spelled out on paper, these rights would be unnecessarily limited.  He failed to persuade. It took the formulation of ten amendments listing the rights of individuals and the States—the Bill of Rights—before the Constitution could be ratified.

Cynics of today may wonder why they bothered. Given what has happened over the course of more than two centuries—the vast expansion of the federal government and its relentless encroachment on our liberties—what difference does it make what the Constitution says? They have a point. Still, without the Bill of Rights, can you imagine even having a discussion today about the rights to free speech, assembly, or religion? Can you imagine anyone other than the police or military allowed to keep or bear arms? Many assert that we are secretly monitored unconstitutionally by the government—this would be completely legal without the Bill of Rights.  And jury trials?  Without the Bill of Rights, would these exist?

In hindsight, adding the Bill of Rights was a pretty good catch by the Anti-Federalists, wasn’t it? Without their vigilance, it’s quite possible we would have no rights at all as individuals. What about their other concern—that the President would become a king? Is the President today, practically speaking, a king with king-like control over his subjects, the citizens of the US?

One must conclude that the President today is clearly a king to a significant degree. As evidence, consider the President directing the agencies of the executive branch, such as the Department of Energy or the Environmental Protection Agency, to expand the regulatory reach of the federal government. Consider too, the on-the-fly modifications to the Affordable Health Care Act—the executive branch unilaterally changing Congressional law. These actions affect the lives of people well beyond the mandates of Congress. Perhaps most chillingly, the IRS has been caught singling out individuals and groups for punitive treatment based on political views, although the evidence attaching these actions to the President is incomplete, and not being investigated at all by today’s press corps or the Department of Justice.

Time proved the Federalists wrong in many other ways. An important one involved the ingenuity of people interpreting the meaning of words, especially this innocent-reading clause in Article 8:

“The Congress shall have Power … To regulate Commerce … among the several States….”

In spite of this clear and simple wording, and irrespective of reasonable interpretations of the words “regulate” and “Commerce”, thousands of laws have been passed regulating goods and services which have never been bought or sold, or which have never crossed state lines. As Supreme Court Justice Clarence Thomas puts it, “If Congress can regulate [such goods] under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers.”

Net-net, the US Constitution as a model for a central government with strict limits to its scope and power has failed. That it would fail eventually was suspected very early on by the Anti-Federalists. That it failed in fact was spotted first, perhaps, by Lysander Spooner in his 1867 essays entitled No Treason, in which he said:

“Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; ... [noone] can be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless ... the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize.... But whether the Constitution really be one thing, or another, this much is certain --- that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”

If the Constitution has failed, and the government built upon it so obviously failing all around us, what exactly are we to do next?