Constitution Day – time to reflect

Today (September 17) is Constitution Day. On this day, 235 years ago, thirty-nine men signed their names to a document that has governed us ever since. That document is, of course, the Constitution of the United States. The Constitution distinguishes our society, a republic, from an oligarchy. So today is a good day to reflect on what we have, and how we keep it.

A Republic if you can keep it

Few people today remember Eliza Willings Powell, who famously asked Benjamin Franklin what the Constitutional Convention had just created. She asked:

Well, Doctor Franklin, what have we got? A republic, or a monarchy?

And he answered:

A republic, if you can keep it.

Modern historians don’t even want to admit that this exchange took place. But one James McHenry noted it in his diary at the time. If Dr. Franklin himself didn’t write it down, perhaps he thought it was self-evident and not worth mentioning.

A republic is a society with a basic, unchanging body of law to govern it. Without that “public thing” – the law – justice and public policy become issues of men.

As CNAV has said before, five possible societies exist: monarchy, oligarchy, democracy, anarchy – and the republic. The republic stands apart from the rest, because all the rest tend toward one: oligarchy. Any society is too big for one person alone to rule it. Even a monarch (hereditary or not) must answer to the most powerful stakeholders in his kingdom, protectorate, or whatever. Likewise, democracy and anarchy both tend toward oligarchy, the first by vote, the second by force. And that makes very little difference, except maybe in the casualty lists and damage tallies. But the republic is stable.

The present Constitution went into effect in time for a Presidential election. It was the first such Constitution, and it still stands.

The Constitution comes under attack

But will it remain standing? Already we have seen it come under direct attack. Two Ivy League law professors want to replace it. Four weeks ago they said in The New York Times, “The Constitution is broken and should not be reclaimed.”

But what was their problem? From the decisions of the United States Supreme Court that they listed, clearly they don’t want the rule of law. They want to write bills of attainder and ex post facto laws to punish people today for being more successful than others. The Constitution forbids both things.

Remember: a bill of attainder is a law singling out one person, or a group or class of persons, as outlaws. An ex post facto law punishes conduct that was perfectly legal when it took place.

This year the Supreme Court put in place many protections that too many want to revoke. These definitely include freedom of speech, free exercise of religion, and the right to keep and bear arms. This fall, the Court has promised to consider reinforcing the equal protection of the law, and the prerogatives of State legislature to draw districts and make election law. (Contrary to popular believe, the Court did not explicitly protect the right to life itself. But it definitely enabled individual States to protect it – fully – if they so choose.)

How to strengthen the Constitution

The best thing anyone has done to strengthen the Constitution is to reconstitute the national judiciary. That demonstrably applies to the Supreme Court but also applies, though less completely so far, to lower courts.

Now that good judges and Justices are in place, people of good heart should start arguing, forthrightly, for returning to the Constitutional way of doing things. Timothy K. Moore, Speaker of the North Carolina House of Representatives, is showing the country how it is done. He has brought an action to reassert the absolute power of State legislatures to set “the time, places, and manner of holding elections for Senators and Representatives.” This also includes the power to draw maps for legislative districts, and that is the context of his action. (Moore v. Harper, 21-1271.)

As mentioned above, the Supreme Court has not guaranteed any right to life. To get that right to life, someone must argue on behalf of pre-born children. They need not name any particular defendant; they can sue ex parte. (Which means, without reference to any other party.) Then if someone else wants to plead against the pre-born, let them.

Suggestions for amendments

But some things will require amending the Constitution, especially to remove language that compromises the nature of the republic. CNAV offers these suggestions. First, strike Article I, Section 8, Clause 7:

The Congress shall have the power … to establish post offices and post roads.

Congress should not be in the message or package delivery business. Next, strike Amendment XVI

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

And Amendment XVII, providing for popular election of Senators. Senators were supposed to be State ambassadors, and State legislatures once chose them. Popular election is a step toward democracy, which leads to oligarchy.

Given the all-too-serious discussion of “packing the Court,” perhaps we need a Constitutional amendment to “save Nine.” Senator Ted Cruz (R-Texas) has already proposed such an amendment, and both Mississippi Senators have agreed to co-sponsor it. In fact Senator Cruz offered two proposals. One would fix the size of the Court at nine members. The other would require the consent of two-thirds of the Senate to change the size of the Court.

To sum up

The point of all these proposals is to protect the rule of law. Some laws, that protect basic rights to life, liberty and property, should not be subject to easy change. A proper republic should have laws more difficult to change than the minds of an unaccountable ruling committee. (Which is what an oligarchy is.) A republic, with that kind of protection, can be more stable than any oligarchy. Stable societies grow and thrive. Unstable societies stunt the growth of their people – if they don’t fall apart themselves.

On this Constitution Day, all Americans should reflect on the republic they have, how to keep it, and how to strengthen and stabilize it.