What I took with me from the development of the Constitution

The world is given to everyone in common. The difference in acquisition is time, talent, and chance. It is this very principle that is the cause for humanity to have left its place in the lawless wild to live in societies. While living in the state of nature, a state where all people are free to behave, claim property, and live as they choose, they are also subject to the might of another who might be inclined to take what another might have and at any cost. But people, in nature, are also gregarious and, like any other animal, inclined to want to reproduce. There is, then, an inherent desire to be in proximity to one another to increase the odds of finding a mate and people to socialize with. For these reasons, even while living in the state of nature, humans have lived near one another, but have worked for eons to try and create the best system of government that would work for all. The reason man left the state of nature Locke points out that “it is an unfair way of life if the defense of one’s property is based solely on one’s might.”. And so, humanity ultimately allowed themselves into a civil society where majority rule appears the go-to because in choosing society one must also choose to obey the law set by the legislator, as legislative power is supreme in the sovereign people have elected to grant the power to implement law.  This is humanity’s great power because they are granting power directly. The framers of the constitution took this as seriously as Jefferson et al. who wrote the Declaration of Independence.

            In the second paragraph of the Declaration of Independence, Jefferson’s final work 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. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness” (The Declaration of Independence). This is the overt statement that all people are the same and deserve the same rights and protections within the reason that they elect of their own volition to create legislation that will aid in the preservation of themselves and their property. And it immediately thereafter points out that because the people are the electors of this government that they also have the power to remove it and institute a new government or its policy in order to restore any necessary law that protects the best interest of the people. The framers of the constitution held these principles in high regard as they shaped the document that would outline the government and political structure of a nation that was meant to grow and evolve with the people who elected to be governed by it. Thus the framers maintained through drafting ensuring that the primary function of government would be the preservation of the good of the people.

            After the American Revolution the Articles of Confederation were drafted in order to help bring some order to the thirteen states that were wheeling out of control economically and refusing to pay for a war that they had not only helped to fight in but one that they had wanted as badly as anyone. Unfortunately, the Articles were not a real governing system and were extremely weak because there was no way to enforce any of the laws that it had created. People who owned farmland, who were once profitable and reputable, were going broke and living in poverty as a result of bad governance. The Articles of Confederation governed only the states, and not the people, themselves. And the debate about what was being governed, the people or the states, began, but the obvious conclusion was the fact that it was both. And both people as individuals and the states as aggregate communities needed to be governed.

            From this arises the first part of what Madison calls “the great difficulty.” People are, in nature, both free and equal. These free people acknowledge the need to be governed and consent to have such a structure of government be erected; people who will also stand behind that government. That government must, in turn, act in accordance with what is in the best interest of the people. This government must also have the ability to control itself in the event that any part of it should act against that which is the best interest of the people. Madison’s statement in No. 51 of the Federalist Papers say, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself” (The Federalist Papers No.51). He is explaining that in government the powers of that government must be used to control the powers of that same government. Madison details the separation of powers “by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places” (The Federalist Papers No. 51). Madison is explaining that each holds the other accountable.

            The way I have come to understand this is similar to how the structure of a skyscraper works. Skyscrapers are massive, jut high into the sky, and sway when the wind blows. Skyscrapers would fall over in the wind or crumble under their own weight, were it not for the steel beams within them. The steel beams are rooted deep into the depths of the earth and run the height of these towers. No matter which way the tower leans into the wind, the supports push back, thus the building stays intact. The same logic applies in considering creating the paths by which the government is “obliged” to control itself. And this is done by keeping them independent and by giving them a grant of power from the people to create a separate power base.

            This means that each branch needs a will of its own, each needs to be as minimally dependent upon the other as possible, and, in Madison’s own words, “ambition must be made to counteract ambition” (The Federalist Papers No. 51). Madison’s meaning here is that each branch needs to have power and interest in similar territories where another branch would need to have reason to defend or protect their interest. Essentially, the machine needs to be designed to function for people, as a whole, because it cannot function any other way. Because this is a system of people who must consent to be governed and given this fundamental principle, the government of those people who granted this authority must also be a government that consents to be governed, itself. The thing is: people are animals who are easily given to their passions. And it is a measure of preservation to have a government that can slow itself down.

            The writers of the constitution believed that this was important because if the people, so given to their passions, should go about changing the law at their whim it is more than plausible to assume that such impulsive change might bring some level of injustice to any number of people. But it also helps to keep factions, which according to Madison are any number of citizens -whether a majority or a minority- who are united by a common impulse or passion that is adverse to the rights of others or against the permanent and aggregate interest of the community, from gaining power that cannot otherwise be controlled.

            The writers sought to preserve freedom, an enormous task to take on given the knowledge that people may not always agree and that they will inevitably change around them as time passed and the nation the expected to grow became larger and larger. Crating a constitution was made all the more difficult because of peoples’ passionate natures and all that passion could easily lead us astray. Of course, they believed that given long enough there would be people with enough people that were capable of such good, non-factional choices  of what to do with such power, which demonstrates that, all in all, the framers had the utmost confidence in people and the enlightenment ideology that this was built upon. Their belief in this is important because they thought that, given enough time, people could progress into being naturally lawful both in behavior and with political power. They believed that this experiment might help people learn how to do better than they know their own passionate selves to be.

            The Constitution of 1787 was designed to overcome the great difficulty, preserve freedom and equality, and last for generations. The United States Constitution is a reflection of the good and bad of the problems and the insights of their time. It was intended to be evolutionary the help solve foreseeable problems of future generations. It is a hypothesis created from the observation there in our Declaration of Independence, that we are entitled to inalienable rights. One way that the Constitution is designed to overcome comes right out of the need to protect those unalienable rights is that the people always have the power, and that includes the power to abolish governments that were despotic or failed the people in some egregious fashion. The Constitution also delegates how the powers of the government are to operate. These operations are to keep the people in charge at a representative level and for designated lengths of time so that if the people do not agree with the current agenda, then that power can be removed, and a new one can represent the one the people prefer. And it is designed to change slowly. Because judges sit for indefinite terms on good behavior and they have the power to deem legislation to be unconstitutional through judicial review, it slows, what could very easily be, an impulsive legislature they slow the process of change and do not have to worry about keeping their terms because the people may not have agreed with their interpretation and resolution when they have determined what it constitutional and, therefore, in the best interest of the people. This has allowed the government to develop over time and slowly with fewer disastrous results.

            The most important part of the design of the constitution is its power to enforce. The constitution recognizes the sovereignty of the citizens of the United States and has structures in place to ensure that if and capital offense is made that the government has the power to take punitive measures. In this regard, the state is not an entity at all, only the individual living under the supreme law can be subject to the force of law. Law is made for people because they can be detained for their actions and held captive if found guilty. And law in effect is nothing if it is not enforced. People are socialized to behave in certain ways because they are taught to and eventually come to believe that it is the right thing to do. Hamilton believed that under the “right thing to do” ideology, people may not be so wholesome. Therefore, the primary drive behind successful law and government is the force of consequence behind it. The importance of the preservation of the document is that it now had the ability, which the Articles of Confederation did not, to enforce its laws and get things done. This was a solution to the problem of states who could not be curtailed and people who did not abide by the law because not the government would have the power to force its will upon them both.

            The writers of the constitution had a lot to cover while protecting the freedoms of the people who had to accept it and live under its law. They had to create a government that was not just capable of governing the people as individuals, but the states as well as itself and then needing to be able to enforce that law in order to preserve it. And, as Madison argued time and again during the federal convention, the people would need to be presented with this, the people will have to consent, the people must be behind the idea of the government they had created so it needed to be one that people found to be rational and in their own power.

            I think they were very successful in structuring the Constitution. I think that they did an incredible job trying to steer that government and all its processes for the good of the people with the control left in the hands of the people as best they could in the time that they had to do with it, which in my opinion, was not nearly long enough. I believe that these were brilliant minds who had come up with some compelling and effective resolutions to problems that were immense in their time and were able to prevent us from winding up in similar holes as we have progressed as a nation. The framers had an impossible task at hand and, for those, like Madison, who wanted to keep as much power in the peoples’ hands as was possible, it was a way to create an enduring foundation for government that was slow to change, yet designed to legislate and develop along with the progressive society they had been building from the moment they declared independence from Britain all those years before. They had developed problems that they intended to prevent by way of enumerating powers to each of the branches of government. By allowing the executive, legislative, and judicial branches their own power with a reasonable interest in the goings-on of the other branches, the writers created a government that could keep itself on the figurative straight-and-narrow.

            But I think that in the times we live in now, things have gone downhill somewhat. There have been some pretty outright assertions of power and sidestepping of the constitution in order to suit the agendas in many different policy and legal ways. I think that the undermining of the laws of the constitution weakens it and thus our government. If the constitution is ignored by those we put in power, then the document is not worth very much in terms of enforceable law, especially when no enforcement is enacted in the face of deliberate disobedience, and that sets the precedent that if elected officials do not have to obey the law, then neither does the common person. And if individuals and states are not held accountable then the road to anarchy is not a long one, thankfully though, the government is designed to change slowly, if ever at all, some parts of our democracy that I see crumbling are falling apart faster than others.

            What I do see, though, is that many peoples’ rights, primarily minorities, have been undermined often in the history of the constitution and since the end of slavery in its time. Article IV of the constitution is supposed to prevent people from being profiled and attacked for any reason; they have the right to feel secure in their persons. No one has the right to stop and search anyone on the street without probable cause, and any issuance for a warrant of arrest must be induced on the shoulders of that same probable cause, yet every day black men and Latino peoples are stopped and harassed by law enforcement every day. If the states aren’t allowed to implement legislation that goes against the constitution, then there’s no way that the police, which are functions of the states, have the authority to violate those rights either. And somehow, in all of this, there are no officers seeing the law being enforced upon them for their horrible judgment calls. If the law states that we are responsible for our own actions and any offense is subject to the law, then those we are supposed to be placing the peace and mind of our safety should be held to a higher standard and face consequences that are adequate for the misuse of their authority. The constitution extends to all people as individuals under its law and freedoms like the security we should have in our own persons should not only extend as far as the lines of a piece of paper, if they are meant to acknowledge and protect the unalienable rights that we are supposed to have as American citizens under its law.

            It is also an affront to the constitution that the electoral college is still in place. It is understandable that, at the time, it was the best solution that they could come up with, because it initially minimized tumult and disorder, as well as cabal and intrigue, along with what was then added prevention from foreign powers intending to influence our elections. It was supposed to be a pop-up sort of political group that was randomized and only made political movement in the even of a presidential election to aid in the defense of privacy because even those who would serve in the electoral college would not know they were doing so until they were called upon.

            In recent times, though, we know that our elections have been meddled with by foreign powers. We know that it is easy to corrupt democracy in the day and age we live in now. There was no way that the framers could have imagined that we would have a global network of connections and have constant access to all the available information, both good and bad, in the known world at our very fingertips. They could never have foreseen a nation full of people with machines they could instantly connect to anyone on at any time of day and they couldn’t have known how heavily influential they are. I mean, even we didn’t really know until recently. And it exists in all kinds of statistics from suicide rates in teens being the highest in history to the newly found knowledge that a staggering number of Americans today get their news from Facebook, rather than a reputable news source. Sure, the constitution called for an electoral college, but they’ve been rendered obsolete in just the fact that our elections are able to be meddled with without them. The only thing the electoral college does at this point disproportionately represents smaller and less populous states, which only serves to keep putting people into the presidency who really weren’t elected by the people directly.

            I can agree that in a day when an electoral college may still have been disproportionate population-wise across the states, but much more effective at keeping that influence to a minimum, but those days are long gone. Perhaps there isn’t a better way to elect a president by proxy, but we live in a day and age where that should no longer be a problem. The federal government can create incentivized infrastructure plans to update voting in every area of the country and create gerrymandering laws. It’s totally unethical and I think that the writers would have been ashamed of what’s happening with their democracy. We’re supposed to get better in the eyes of these people who believed in enlightenment ideas, so it’s pretty astonishing to see how far we’ve devolved. 

            Another of the bigger issues that undermine the constitution is the sidestepping of the president around Congress’ decision and ability to declare war. The writers were reasonable enough to logic their way to the idea that this was way too much power for one person to have all on their own.  So, the presidents who have tried to use loopholes in the constitution in their plots to wage the wars they made, have never had the authority to do so. Any ambiguity was cleared up by the Federalist Papers in No. 69 when Hamilton explicitly discusses what the president’s war powers actually are saying,” the president will have only the occasional command of such part of the militia of the nation as by legislative provision…” (The Federalist Papers No. 69). That even if the military is called the president has limited command and can only go as far as congress allows. Then Hamilton continues, “…the president is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it” (The Federalist Papers No. 69). And if you really read that sentence, it’s very diminishing. Hamilton is saying explicitly that he totally gets it that everyone is worried that one guy might be out here declaring wars on people the rest of us don’t have any problem with, that’s the entire point of not giving the president over any powers of war unless he’s called into action by the sitting congress. And, even then, he’s not more than a fixture that the congress uses to wave a shiny in front of the nation that we’re in conflict with at that moment.

            That’s problematic because there have been presidents who have sent soldiers into Vietnam, Korea, and various parts of the Middle East with violent intent for meaningless ends. But the problem is that according to Hamilton’s own explanation the president doesn’t have that authority either because no congress ever called any of them to action.  I think that this should be enforced and that a president who makes war of any sort should be punished for attempting to usurp the power of another branch of the government because it is a crime against the independent branch who holds that power to try have taken it for his own. Presidents should be accountable for every mistake they make and they should understand the law well enough to know better than to challenge it because they too are subject to it, but that lands on the back of the congress to sort out because they have to be the entity that stands and says, outright, that this is not within the power of the presidency and treason has been committed.

            Last, another of the things that could stand to be revisited is the, now laxer, attitudes about the states violating the constitution to create their own laws that have been found unconstitutional, like the use of marijuana. I know that this is an issue beaten into the ground, but the reality that many states have violated the supremacy clause in Article VI, which says: “ this constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land…” (The Federalist Papers Article VI of the constitution of 1787).  This clause explicitly says that the constitution is made and cannot be unmade, and no law can be passed that is not in accordance with the law of this constitution because it stands as the highest and most authoritative law that the land knows and is supreme in its governance.

            The issue of the plant being a schedule-1 drug aside, the fact of the matter is that states ignore the fact that it is and continue to legalize the use of marijuana not just for medical use, but for recreational use in more and more states as well. It is understandable that people have given up on the argument and that no one cares anymore, because just like liquor in the age of prohibition, people are going to do what they want to do and keep right on undermining the constitution. All I really see when I look at the constitution as it was in September of 1787 is a lot of disrepair in the mechanics of our current political machine. People, or the most part, no longer care whether or not their friends and neighbors are using marijuana and it has allowed states to sidestep the constitution by saying that it’s medicinal in use before eventually legalizing the recreational use of marijuana. That has been the pattern and it isn’t showing any signs of slowing or changing anytime soon. But the government has deemed weed to be an illicit substance and a punishable offense if you’re caught with it. Although, states like Colorado, California, and Washington have all legalized its recreational use and are no longer punishing people for having it.

            This is probably the most overt and well-known instance of people being aware of political action that weakens the integrity of the constitution, yet no one does anything about it, likely because so many people are benefiting from it and are, perhaps, skating by on the floating hope that the congressional agenda never turns its lidless eye, wreathed in flame at them. Likely, given the day and age we live in, it won’t be long before legislation validates the constitution once again, but as it stands now the blatant defiance only weakens the foundation that those laws of prohibition are supposed to stand upon as we know them now.

            The framers of the United States Constitution set out to create a foundational document that blueprinted an experimental government that held people and itself accountable through the structural beams of enforcement and each governmental branch’s interest in those political affairs that other branches see to. The writers took on the extremely difficult task of trying to create an overarching government that had control of itself yet did not infringe on the rights that they held as most valuable; those that are listed as unalienable rights by the Declaration of Independence. They sought to create a document that could grow with the nation as it developed and was changeable, though very slowly for reason the of conservation of the law and in upholding it.

            There is a lot wrong with the law as it stands today. And there are many reasons outside of the specifics that stand as examples of how the Constitution of 1787 has been undermined.  Minorities whose constitutional right to feel secure in their persons has been essentially stripped and people of color are profiled and searched based solely on the fact that their skin tone made an officer suspicious. The current electoral college is obsolete because we have learned that democracy can be meddled with using means external to the electoral college’s randomized establishment by using social media as a lubricating device to grease the wheels of unrest in the political process. We have seen too many presidents overstep their boundaries and commit acts of war without ever declaring it when the constitution states clearly that the presidency has no power to do so whatsoever. And that instead, the presidency is more like a floofy title given to the executive to make things look more official in times of war. And the outright undermining of the supremacy clause in the constitution has given way to states crafting legislation that legalizes the use of marijuana, even to the extent of recreational use, when it is still in the text of legislation that holds it as an illicit substance. The constitution today is not nearly as strong as it once was and there are many more instances than just the ones listed. But the document was meant for people to take the time to allow better heads to prevail in the process of political change. The document is meant to grow with the people as they come to higher forms of thought. That is what the writers had in mind for us as we became the society that we are today. And perhaps, this time of regression and stagnation will become a lesson learned and our better natures truly will prevail and we will return to relying on the constitution as the supreme document that oversees that the law of the land is in accordance with what is in the best interest of the people who granted it authority in the first place.