Constitution Day is coming

Thursday, Sept. 17, is Constitution Day, the 228th anniversary of the signing day in 1787 that brought us the great document. But James Madison, often called the “Father of the Constitution,” saw one potential problem in it.

Madison hoped “the vigilant and manly spirit which actuates the people of America” would defend against oppression, but he wasn’t sure that spirit would last: “If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty.”

Hmm. Are we there yet?

Madison, Alexander Hamilton, and John Jay penned the newspaper columns that became known as The Federalist Papers. In them they insisted that the Constitution’s complex set of mechanisms would allow needed federal action but prevent dictatorship.

For example, electors appointed according to the will of the state legislators would select the president, and state legislators would elect senators. Madison contended that “each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence” on them.

In Federalist No. 57 Madison described a protection against the possibility of oppression by the House of Representatives: “They can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society.”

Twentieth century changes killed those protective devices. One amendment to the Constitution provided for direct election of senators. We abandoned the custom of “rotation of offices,” within which many House members served for a term and then went home. Now, most stay in Washington for many years and sometimes exempt themselves from the consequences of their decisions.

Those who opposed passage of the Constitution in 1787 and 1788 raised objections that were then premature but now seem prescient. Richard Henry Lee, a signer of the Declaration of Independence and president of the Continental Congress, thought the federal government would gain too much power and “produce a coalition of monarchy men, military men, aristocrats and drones”—exactly what he and others had fought a revolution to avoid.

Lee complained that “instead of seeing powers cautiously lodged in the hands of numerous legislators, and many magistrates, we see all important powers collecting in one centre.” He urged those of the revolutionary generation not to depend on the character of their successors: “Good men will generally govern well with almost any constitution: but why in laying the foundation of the social system need we unnecessarily leave a door open to improper regulations?”

Lee proposed strict limitations on the federal government’s power to tax. If stringent limits were not in place, not only would tax rates tend to become oppressive, but “to lay and collect taxes, in this extensive country, must require a great number of congregational ordinances, immediately operating upon the body of the people; these must continually interfere with the state laws, and thereby produce disorder and general dissatisfaction.”

Federal officials, Lee predicted, would pass laws to increase the number of those dependent on them: “Should the general government think it politic, as some administration (if not all) probably will, to look for a support in a system of influence, the government will take every occasion to multiply laws, and officers to execute them, considering these as so many necessary props for its own support.”

Although Lee thought it “not probable that any prudent congress will attempt to lay and collect internal taxes, especially direct taxes, [the power] might be abused by imprudent and designing men.” His Virginia colleague George Mason had no doubt that the broad tax power, “being at discretion, unconfined, and without any kind of control, must carry every thing before it.”

Mason argued that federal courts would absorb and destroy “the judiciaries of the several states, thereby rendering laws as tedious, intricate, and expensive, and justice as unattainable by a great part of the community, as in England.” Mason scoffed at claims that “the House of Representatives will consist of the most virtuous men on the continent, and that in their hands we may trust our dearest rights. This, like all other assemblies, will be composed of some bad and some good men; and, considering the natural lust of power so inherent in man, I fear the thirst of power will prevail to oppress the people.”

Hmm. Ya think so?

Other Virginians were similar concerned. James Monroe spoke of “how prone all human institutions have been to decay; how subject the best-formed and most wisely organized governments have been to lose their checks and totally dissolve; how difficult it has been for mankind, in all ages and countries, to preserve their dearest rights and best privileges, impelled as it were by an irresistible fate of despotism.”

The Virginia convention that barely ratified the Constitution was Patrick Henry’s last major effect as a great orator. He gave it all he had: The Constitution will work if leaders “shall be honest,” but it also gives them “power to perpetrate the worst of mischiefs, should they be bad men … [a president of] ambition and abilities, how easy it is for him to render himself absolute.”

Like Samuel in the Old Testament, Henry warned against copying other nations: “Shall we imitate the example of those nations who have gone from a simple to a splendid government? … If we admit this consolidated government, it will be because we like a great, splendid one. Some way or other we must be a great and mighty empire; we must have an army, and a navy, and a number of things.”

Many leaders from other states agreed. As the new government was organizing itself in 1789, Samuel Adams of Massachusetts predicted to Lee that a combination of mistakes (“the weakness of the human Mind often discovered even in the wisest and best of men”) and malice (“the perverseness of the interested and designing”) would lead to “misconstructions” of the Constitution. Those “would disappoint the Views and expectations of the honest among those who acceded to it, and hazard the Liberty, Independence and Happiness of the People.”

Hmm … no way! Way?

South Carolina’s James Lincoln asked, “What is liberty? The power of governing yourselves. If you adopt this Constitution, have you this power? No: you give it into the hands of a set of men to live one thousand miles distance from you. Let the people but once trust their liberties out of their own hands, and what will be the consequence? First, haughty, imperious aristocracy; and ultimately a tyrannical monarchy.”

New York’s George Clinton predicted that the federal government would eventually tax Americans to death: “[Although] there are politicians who believe that you should be loaded with taxes, in order to make you industrious … what can inspire you with industry, if the greatest measure of your labors are to be swallowed up in taxes?” Clinton laid out a supply-side theory, with higher taxes leading to reduced governmental revenues: “If heavy duties are laid on merchandise … the price of the commodities … must be increased; the consumers will be fewer; the merchants must import less, trade will languish, and this source of revenue in a great measure will be dried up.”

Debate raged in newspaper columns, often written by leaders using pseudonyms. In New York, “Brutus” argued that history suggested extreme wariness: “[It is the] naturally unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over everything that stands in their way.” He thought a biblical understanding of sinfulness allowed for a firm prediction: “This disposition, which is implanted in human nature, will operate in the Federal legislature to lesson and ultimately to subvert the State authority.”

Pennsylvania dissenters worried that “the powers of Congress under the new constitution are complete and unlimited over the purse and the sword, and are perfectly independent of and supreme over the state governments, whose intervention in those great points is entirely destroyed.” They predicted that federal power eventually “must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several States, and produce from their ruins one consolidated government.”

That government, Pennsylvanians predicted, will “multiply officers in every department; judges, collectors, taxgatherers, excisemen and the whole host of revenue officers, will swarm over the land, devouring the hard earning of the industrious—like the locusts of old, impoverishing, and desolating all before them.”

None of these considerations, to my mind, indicates that we should throw out the Constitution and start over. What we’d come up with now would be far worse than what we have. I’d go for repeal of the 16th and 17th amendments, which gave Congress great taxing power and provided for direct election of senators, rather than selection by state legislatures.

But the biggest problem is the Supreme Court, which for half a century now has fulfilled the fears of those who saw it as eventually undermining the Constitution. We need justices with less ego and more respect for the Constitution as written. And if we can’t have them, we must curtail the power of the court before it curtails liberty even further than it already has.

Maybe on Constitution Day we should gather and contemplate predictions from some newspapers in 1787 and 1788:

“[The Constitution will lead to] the consolidation of the States into one national government … the State sovereignties would be eventually annihilated, though the forms may long remain as expensive and burdensome remembrances of what they were …” (Philadelphia Independent Gazetteer, April 22, 1788).

“The vast and important powers of the president [are a concern]. … He will be surrounded by expectants and courtier. … [I]f the president is possessed of ambition, he has power and time sufficient to ruin his country” (New York Journal, Nov. 8, 1787).

“The new constitution will prove finally to dissolve all the power of the several state legislatures, and destroy the rights and liberties of the people” (New York Journal, June 13, 1788).

“Certain characters now on the stage, we have reason to venerate, but though this country is now blessed with a Washington, Franklin, Hancock, and Adams, yet posterity may have reason to rue the day when their political welfare depends on the decision of men who may fill the places of these worthies” ([Boston] Independent Chronicle, Dec. 6, 1787).

“Those who tell you that you safely may accept such a constitution and be perfectly at ease and secure that you rulers will always be so good, so wise, and so virtuous—such emanations of the deity—that they will never use their power but for your interest and your happiness, contradict the uniform experience of ages” (Maryland Journal, April 14, 1788).

“Should the citizens of America, in a fit of desperation, be induced to commit this fatal act of political suicide, to which by such arguments they are simulated, the day will come when laboring under more that Egyptian bondage; compelled to finish their quota of brick … you will, by sad experience, be convinced (when that conviction shall be too late) that there is a difference in evils and that the buzzing of gnats if more supportable than the sting of a serpent” (Maryland Journal, April 14, 1788).

“From the first history of government to the present time, if we begin with Nimrod and trace down the rulers of nations to those who are invested with supreme power, we shall find few, very few, who have made the beneficent governor of the universe the model of their conduct, while many are they who, on the contrary, have imitated the demons of the darkness. … We have no right to expect that our rulers will be more wise, more virtuous, or more perfect than those of other nations have been” (Maryland Journal, March 28, 1788).

“[There is] an incontrovertible truth, that whatever by the constitution government even may do, if it relates to the abuse of power by acts tyrannical and oppressive, it some time or other will do. … Once power and authority are delegated to a government, it knows how to keep it, and is sufficiently and successfully fertile in expedients for that purpose … so far from parting with the powers actually delegated to it, government is constantly encroaching on the small pittance of rights reserved by the people to themselves, and gradually wresting them out of their hand …” (Maryland Journal, March 28, 1788).

Madison thought the ingenious check-and-balance mechanisms he devised to separate power would restrict governmental encroachment. For a while, he was right. But a book I wrote on 18th century American history has the title Fighting for Liberty and Virtue. When virtue declines, so does liberty.