Monday, September 28, 2009

THE CONSTITUTION, THEN AND NOW


“What the three [Madison, Hamilton, Jay] did not know, could not know, was that the right to have the Constitution ratified would . . . rival any that would follow in the history of the country” -- Triumvirate, p. 38

The Articles of Confederation were a failure. They needed not to be improved but wholly rewritten. The Constitution was the best form of government ever offered to the world. But to get it ratified, nine of the 13 states were needed.

Madison, Hamilton, and Jay started writing essays, all under the name of Publius, (with widespread support from the biased newspapers). How they got started, was not revealed in the mass of letters available to author Bruce Chadwick for his new book, “Triumverate” (Naperville, IL, Sourcebooks, 2009).

Fears by Anti-Federalists and Federalists were intense. If the Constitution were not ratified, what would become of the states that voted against it? Anarchy? Like a ship without a rudder or pilot.

The chief obstacle was the need for a Bill of Rights. Madison and all the Federalists were adamantly against it, believing the rights were already in the Constitution (which Madison had written). Thus, the Constitution divided authority between the Federal government and states; the Federal government was divided into three branches, executive, legislative, and judicial. The legislators—the Triumvirate believed—were responsible. The people themselves would not allow them to be otherwise.

The Anti-Federalists, not satisfied with assurances from the elitists in their New York City mansions, wanted to be sure that rights not specifically granted to the Federal government were reserved for the states. Though they trusted George Washington, who was expected to become the first president, future presidents might be oppressive.

In Virginia, anti-Federalist Patrick Henry argued the Federal government might deny people their rights and might even torture them. Colleague George Mason asserted that the Federal government would become corrupt. Anti-Federalists wanted a full Bill of Rights, as did Jefferson who was abroad. Madison and the Federalists asserted that the Federal legislature would be made up of reliable men who would not abuse the people, and a Bill of Rights could be added later. The Antis feared that a strong Federal government might refuse. Ben Franklin supposed that “The first Congress will probably mend the faults of the Constitution and future Congresses the rest.”

The Federalists argued that a strong national defense is needed if England were again to attack, if radical leaders in France could find some ancient document giving them rights in the states and Canada and launch an attack, or if a foreign power (like Spain) could shut down commerce on the Mississippi River.

The Federalists maintained that a House and Senate, strong through checks and balances, would prevent problems, not promote factions. Antis complained that the president and Senate would be too powerful. Madison’s father agreed, warning that the president could become a tyrant like King George III.

James O. Wilson of Pennsylvania argued that the wisdom of the people would overcome the failings of some political leaders. The people would determine who would rise to the top. Those selected would succeed because they had the support of the people. George Washington thought so too. Behind the scenes he worked continuously with Madison, Hamilton, and Jay, writing letters with persuasive arguments to everybody who wrote to him.

Finally, nine states did ratify the Constitution, by very thin margins. Madison, in a conciliatory gesture, then promised a Bill of Rights (and drafted it).

What of their fears and assumptions about the Constitution, 230 years later? Retired constitutional law instructor Michael Connelly examined health-care House bill HR3200 for effects on our Constitution. “I was frankly concerned that parts of the proposed law might be unconstitutional,” he has written. “What I found was far worse than what I had heard or expected.” (ttp://michaelconnelly.viviti.com)

“[I]t is a convenient cover for the most massive transfer of power to the Executive Branch of government that has ever occurred, or even been contemplated.

“If this law or a similar one is adopted, major portions of the Constitution of the United States will effectively have been destroyed.

“The first thing to go will be the masterfully crafted balance of power between the Executive, Legislative, and Judicial branches of the U.S. Government. The Congress will be transferring to the Obama Administration authority in a number of different areas over the lives of the American people and the businesses they own. The irony is that the Congress doesn’t have any authority to legislate in most of those areas to begin with.”

Lost is the 4th Amendment protection against unreasonable searches and seizures, which covers your personal healthcare information, personal financial information, information of your employer, physician, and hospital. “[T]he right to privacy … [is] legislated into oblivion regardless of what the 3rd and 4th Amendments may provide. If you decide not to have healthcare insurance . . . there will be a tax imposed on you” depriving you “of property without due process of law” contrary to the 5th Amendment.

The 9th Amendment says rights shall not be construed to deny or disparage others retained by the people. In the 10th Amendment, “powers not delegated to the U.S. nor prohibited by it to the States are preserved to the States or to the people.”

Concludes Connelly, “This is not about health care; it is about seizing power and limiting rights. . . .”

By Natalie Sirkin

c2009

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