Intro To The Constitution (Part 3)
Previous article in this series: The Electoral College
Before venturing into the main issue of The Constitution, it cannot be forgotten that even at the time of drafting & ratifying {[the Constitution] & [the Bill of Rights]}, there was not unanimous agreement about the ideal structure of government, nor the best approach towards achieving one, nor the optimum balance of {risk & liberty}, nor even which risks were the most likely to manifest. One of the {largest & clearest} divides was between the Federalists & the Anti-Federalists. The Federalists were in favor of a strong central government, and moving towards something which was closer to a single unified nation, rather than a Confederation of independent States, while the Anti-Federalists opposed centralization of power, and sought to preserve the Confederation. Their writings have been collected into books, and while many are familiar with “The Federalist Papers”, their counterparts in “The Anti-Federalist Papers” are not as well known.
The Constitution was not the first unifying charter between the States; The Articles of Confederation was the first of such treaties, and it fell far more on the side of the Anti-Federalists’ perspective; {favoring & [explicitly preserving]} the independent sovereignty of each of its member States. For example:
“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”
— Article 2 of The Articles of Confederation (the original binding charter between the States) [56]
Interestingly, this is rather similar in function to the 9th & 10th Amendments to the US Constitution:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
— 9th Amendment to the US Constitution [19]
And:
“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.”
— 10th Amendment to the US Constitution [19]
Though, unfortunately lacking the punch of explicitness that was present in the Articles of Confederation. Although that shouldn’t be a problem, it has become one, due to the corrupted perspective which has developed around modern Constitutional law, which seems to take the inverted approach of assuming that the federal government retains all powers which are not explicitly forbidden to it, rather than the original intent of the other way around.
Anyway, getting back on track, The Articles of Confederation were adopted in 1777, and took effect in 1781 after the final State ratified it, and it remained in effect until 1789, when it was replaced by the Constitution. George Washington was not the first President, rather, he was the first president under the Constitution. During this period from 1781-1789, there were 10 {full & partial} presidential terms under the Articles of Confederation, all of whom were before George Washington; and before that, there were 7 presidential terms under the {First & Second} Continental Congresses, from 1774-1781 [58]. Granted, the roles of {[President of the Continental Congress] & [President of the Confederation Congress]} were different, both from each other, and from the President under the Constitution, because the entire systems were different. However, it is an important aspect of the governmental history that helps to give context to the current government under the Constitution. Many people seem to think that the American Colonies went straight from being British Colonies to the Constitution, and that George Washington was the first leader of the first independent union of the States. My point is that that is very far from the truth.
This is important to understand, because it represents the context of the debates which occurred during the design of the Constitution. When the Federalists argue for the increased {centralization & power} of the Constitution, they are doing so in the context of The Articles of Confederation which already existed, and already established a Union of States. This is why the preamble to the Constitution begins with “…in Order to form a more perfect Union…”, because there already was a union between the States, but they were trying to improve it. The Federalists were trying to convince the Anti-Federalists that the increased {power & centralization} was a good thing (and perhaps even necessary), but that there were sufficient protections to compensate for the dangers of that increase of centralized power. Meanwhile the Anti-Federalists were arguing against this increased power, trying to preserve the independent sovereignty of the States, and trying to convince the others that the risks were more dangerous than the Federalists were acknowledging, and that if you’re going to go down the road of replacing the Articles of Confederation with something more {complicated & powerful}, then you need to be very careful about preventing the very {tyranny & [runaway government]} that they had just escaped in the Revolutionary War.
Ultimately, the Constitution would represent a compromise between the Federalists & the Anti-Federalists; although, leaning a bit more towards the Federalists’ side. In fact, the very existence of the Bill of Rights (The first 10 Amendments to The Constitution) was a contentious issue. It was the Anti-Federalists who pushed for the Bill of Rights, and the Federalists who opposed it. [20] The Federalists argued that the best means of protecting rights is by the fundamental design of the system, and if you do that properly, then you don’t need explicit lists of rights. The Constitution already established that the Federal Government only had those powers which were explicitly granted to it, so how could it abuse the people’s rights, when it was not granted the power to do so? And furthermore, providing an explicit list of {rights & protections} was actually dangerous, because people might {misinterpret or deliberately-corrupt} such a list into being the only rights that the people have; meanwhile if there is no list of rights, and it is actually the government which is restricted to an explicit list of powers, then the people’s rights would never be limited in that way. However, the Anti-Federalists disagreed, and believed that the corruption of such systems was unavoidable. They argued that the most fundamental “Natural” rights, needed to be explicitly guaranteed, just in case, because such governmental systems inevitably {corrode & corrupt} over time. And, by establishing these explicit protections, they would serve as warning flags to wake the people up from their complacency in the event that {corruption & tyranny} ever got that far. The slow creep of corruption is easy to lose track of, but when you have explicit fixed points of reference, it allows you to catch what otherwise might have slipped past your notice. It’s like watching the tide come in. Even though you may be watching it intently, the rising tide moves so slowly that its slow creep is hidden among the noise of the waves, and it’s very difficult to track precisely, or prove to others who may not be watching as diligently as you, until vast change has already happened. However, if you went out into the surf and erected {flags & depth-markers}, then as soon as the tide reached these fixed points of reference, it would be much easier to {notice & [prove to others]}. Also, as for the Federalist’s concern over a list of rights being misconstrued as the only rights people have, the Anti-Federalists solved this rather simply, with the addition of the 9th & 10th Amendments referenced earlier:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
— 9th Amendment to the US Constitution [19]
“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.”
— 10th Amendment to the US Constitution [19]
History has shown that the Anti-Federalists were right. The Federal government has already inverted the interpretation of the Constitution into assuming all powers that are not explicitly forbidden, rather than the inverse which was explicitly outlined in the Constitution. Not only that, but the Bill of Rights has repeatedly been the only remaining defense which has protected the people from repeated attempts by the Government to {abuse & violate} our rights, and unfortunately, even the Bill of Rights is being eroded away, and even these explicit Amendments are losing their protective power.
“The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals…. It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.“
— Albert Gallatin; at the New York Historical Society, October 7, 1789 [1]
“I recieved with great pleasure your favor of June 4. and am much comforted by the appearance of a change of opinion in your state: for tho’ we may obtain, & I believe shall obtain a majority in the legislature of the US attached to the preservation of the Federal constitution according to it’s obvious principles & those on which it was known to be recieved, attached equally to the preservation to the states of those rights unquestionably remaining with them, friends to the freedom of religion, freedom of the press, trial by jury & to economical government, opposed to standing armies, paper systems, war, & all connection other than of commerce with any foreign nation, in short, a majority firm in all those principles which we have espoused and the federalists have opposed uniformly; still should the whole body of New England continue in opposition to these principles of government, either knowingly or through delusion, our government will be a very uneasy one. it can never be harmonious & solid, while so respectable a portion of it’s citizens support principles which go directly to a change of the federal constitution, to sink the state governments, consolidate them into one, and to monarchize that. our country is too large to have all it’s affairs directed by a single government. public servants at such a distance, & from under the eye of their constituents, will, from the circumstance of distance, be unable to administer & overlook all the details necessary for the good government of the citizen; and the same circumstance by rendering detection impossible to their constituents, will invite the public agents to corruption, plunder & waste: and I do verily believe that if the principle were to prevail of a common law being in force in the US. (which principle possesses the general government at once of all the powers of the state governments, and reduces us to a single consolidated government) it would become the most corrupt government on the face of the earth. you have seen the practices by which the public servants have been able to cover their conduct, or, where that could not be done, the delusions by which they have varnished it for the eye of their constituents. what an augmentation of the field for jobbing, speculating, plundering, office-building & office hunting, would be produced by an assumption of all the state powers into the hands of the general government. the true theory of our constitution is surely the wisest & best, that the states are independant as to every thing within themselves, & united as to every thing respecting foreign nations. let the general government be once reduced to foreign concerns only, and let our affairs be disentangled from those of all other nations, except as to commerce which the merchants will manage the better, the more they are left free to manage for themselves, and our general government may be reduced to a very simple organization, & a very unexpensive one: a few plain duties to be performed by a few servants.”
— Thomas Jefferson in a letter to Gideon Granger on August 13, 1800 [240]
Next article in this series: 2 Houses of Congress
Citations
This entire Constitution series was written as a single big document over the course of several years; so, all the citations are mixed up together. When I went back to break it up into pieces, I wasn’t confident that I could redistribute all the citations & their reference numbers without screwing something up. So, I decided to leave all the citations together, and post them as the final article in the series.
