The First and Oldest

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I’m not really posting a day early. Actually, I’m six days late. Real life intruded on the Blogisphere last week – visits by all three children and three grandchildren plus moving my mother-in-law in to live with us.

Meanwhile, a lot of interesting anniversaries in history have gone by, but none of them any more important than this one. 218 years ago today, the oldest continuously functioning written national Constitution in the world became official. On this day in 1788, New Hampshire became the ninth state to ratify the document, hammered out by the Constitutional Convention nine months before, thus achieving the 2/3 majority required for it to become binding. The new Constitution actually went into effect on March 4, 1789, with 9 states participating. Virginia and New York signed on that summer, North Carolina in November, and the final of the original 13 Colonies, Rhode Island, in May 1790. The final piece of the puzzle, the Bill of Rights, wasn’t ratified until the following year.
At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a lady in the crowd stopped Benjamin Franklin and asked him directly: “Well Doctor, what have we got, a republic or a monarchy?” “A republic, if you can keep it” responded Franklin.

Americans were the first colonial people to successfully revolt and separate from the mother country, and our Constitution has become the standard for representative government. What do you think men like Benjamin Franklin, George Washington, John Adams, Thomas Jefferson, James Madison, and Alexander Hamilton would think if they could see us today? We hear a lot of talk about “Original Intent” concerning interpretation of the Constitution. If these and other original authors and collaborators could see how the document has been amended and is being interpreted today, what do you think they would say?

A few interesting quotes about a Republic verses a Democracy:

“The best argument against democracy is a five-minute conversation with the average voter.”
“Democracy is the worst form of government except for all those others that have been tried.”

Winston Churchill

“Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!”
Benjamin Franklin
[Any NRA members out there? I wonder why Franklin’s quote isn’t their national motto.]

“Between a balanced republic and a democracy, the difference is like that between order and chaos.”
John Marshall, Chief Justice of the Supreme Court, 1801-1835

Comments?

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7 Responses to “The First and Oldest”

  1. Sandi Says:

    Just a question, actually. When I worked at Americans United, we would get e-mail from right-wing kooks talking about how this is a republic, not a democracy. (1) what precisely is the difference between them as they are conceiving it? (I’m a little rusty on my poli sci and American government knowledge); and (2) why did those people think that the distinction between the two means that they are on the right side of the church-state separation debate? Anyone, anyone?

  2. Al Sturgeon Says:

    I really don’t know enough about the Framers to know how to construct an intelligent answer. Juvenal does.

    But if you don’t need an intelligent answer, then I’m available.

    I suspect they would have a large variety of opinions on what has transpired in the past 200+ years. I think they would (overall) be surprised at how well it has withstood the test of time and be proud from that standpoint. When it came to the finer points of everything, it’s just hard to imagine a consensus – it would be so much for them to comprehend all at once. Overall, I don’t think they’d be furious or anything like that…

    To Sandi’s question, I don’t know the answer. It sort of sounds like some aristocratic arrogance, but that’s just a guess.

  3. Capt MidKnight Says:

    Sandi,
    Here’s my guess on the Republic vs Democracy question, for what it’s worth.

    A Democracy, in its purest form, simply means a majority vote by all eligible voters is enough to make law or public policy. Our Founding Fathers revolted against what they believed was tyranny in the form of King George III and the British parliament ruling them without their participation or consent. They saw pure Democracy as just as bad, but at the other end of the political spectrum. Instead of despotic rule by a king, they saw democracy as mob rule where 51% of the people could oppress the rest. They believed, with Franklin, that Democracy is two wolves and a lamb voting on what to have for lunch. They were also convinced that such a system would ultimately collapse and be replaced by a dictatorship like the one they had just escaped.

    In the Republic that they hoped to establish with the Constitution, certain things were set down as law to protect the rights of all citizens. These rights were supposed to be beyond the reach of any majority to change through the legislative process. The structure of the new government, with its three branches and checks and balances, was designed to try and prevent any group from acquiring enough power to force its will on “The People.” In our Republic, some things are still decided by a strictly majority vote, but many are not.

    There was a lot of argument and accommodation and just plain old horse trading that went on during the writing of the Constitution. The Constitutional Convention had to overcome a lot of obstacle and compromise on many points to try and come up with a document that would protect the basic rights that they believed were essential for the new government to function and still be acceptable enough in its language to be ratified. The slavery issue wasn’t dealt with simply because it was so divisive that any strong statement against it would probably have rendered the whole document DOA. As we found out, 74 years later, solving that problem took a full scale war.

    Just one example of what the writers of the Constitution were up against was the fact that they actually had no authority to do what they did! The Constitutional Convention was called under the authority of the Continental Congress and tasked specifically with amending the Articles of Confederation, which was our government at the time. In fact, the Convention quickly came to the conclusion that the Articles were beyond repair and, on their own, decided to start over and write a new Constitution.

    As to why that organization you mentioned thought that the United States being a Republic instead of a Democracy strengthened their argument on the Separation of Church and State issue, I can’t say, unless they are claiming that one of those rights set down by the Constitution so as to be protected from the “tyranny of the majority” applied to their case.

  4. Capt MidKnight Says:

    Sandi,

    Question:
    Why am I telling you this? You’re the one who should know how the system works – or doesn’ work, depending on your outlook.

  5. Sandi Says:

    See, that’s why I never understood what they were talking about. These people who oppose separation of church and state (and I would venture that that is a majority view by at least a small margin) were saying, this isn’t a democracy, it’s a republic, as if it supported their view. But I see no connection there. So I was then, and still am, confused about why they think this country being a republic supports the view that there should not be separation of church and state.

  6. Capt MidKnight Says:

    Sandi,
    There’s an old saying:
    He who gets to define the terms wins the argument.

    In a lot of these debates about politics and religion, each side is working from a different set of definitions and assumptions, and very seldom do they stop and examine them to see if they can agree on some terms so they can actually talk about the same thing.

    The vast majority of the men who were involved in writing the documents and shaping the new government during the last quarter of the 18th century in America would have described themselves as “religious” men. Press them to explain exactly what that meant, however, and, just like today, you would have ended up with a wide range of ideas. Religious sentiments and religious language run through all the writings of the time, from official documents to minutes of debate in Congress to private correspondence. I suspect that most of those late 18th century gentlemen would look at our wrangling today over issues like whether the Ten Commandments can hang in a courtroom or a Nativity scene could be put up on the courthouse lawn or whether you can have a prayer before a High School football game and consider them anywhere from outrageous to just silly. I doubt that many of them ever imagined “separation of church and state” on such a broad scale to be necessary or even desirable.

    Having said that, many of the founders – whether they were personally devout members of an organized church or, like Jefferson, more of an abstract believer in some cosmic “Higher Power” while, in practice, doing pretty much as he pleased – shared a profound distrust of religion used for political purposes. They’d all seen religion used as a tool of oppression, by bishops and Popes as well as Kings. In Virginia, membership in good standing with the Church of England was a prerequisite for election to the House of Burgesses. Nevertheless, at the time the Constitution was written, 11 of the 13 states contained some sort of religious test for holding state office either in the state constitution or state laws, and several states had established churches.

    The following is from a book that has been a great help to me in understanding what went into the making of the Constitution and Bill of Rights. The author, at this point, is discussing the issues involved in arriving at the exact wording for what we call “The Establishment Clause.”

    Madison and most other members of the House, it seems safe to conclude from the arguments they advanced, would have agreed that the purpose of the clause was to keep Congress from favoring one religion in preference to another, but not to indicate hostility or opposition to religion, or anything but approval of it, as consistent with, and even essential to, the well being of a secular society.

    The quest for an acceptable establishment clause had to cope with those three concerns: no preference among religions; openness to nondiscriminatory encouragement of religion; and no interference in state establishments. The final version – Congress shall make no law respecting an establishment of religion – produced by the conference committee and promptly concurred in by both House and Senate, can be understood as dealing with all three concerns: it prohibits Congress from establishing a religion, it simultaneously prohibits Congress from interfering with any existing state establishment of religion, and it leaves open the possibility of general, nondiscriminatory government encouragement of religion. All these have been the subject of much dispute ever since.
    “From Parchment to Power: How James Madison used the Bill of Rights to Save the Constitution” by Robert A. Goldwin, AEI Press, Washington D.C. 1997 p162, 164

    Here is the First Amendment, in it’s final form:
    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
    There is no mention of “Separation of Church and State” in the clause. Those are the terms used, and the interpretation given the clause by Thomas Jefferson in 1802. In the 204 years since then, many others have voiced opinions, agreeing and disagreeing. I’m sure that the organization you had dealings with holds an opinion that this amendment supports their position and as a part of the Constitution in a Republic, isn’t subject to change by legislation. That may be why they see the distinction between Republic and Democracy as important to the discussion. I’m just as sure that you and your organization hold an opposing view. In fact, neither one matters. As some cynic once said:
    The Constitution means whatever the Supreme Court says it means.

    The balance of power shifts back and forth in a Republic like ours. At the moment, many believe the Judicial branch has the upper hand. It’s probably natural for the power balance to vary within certain limits over time. What we don’t know is where those limits are or what will happen if one branch acquires power outside the limits.

    Nothing designed by man lasts forever – even something a amazing as the American Nation.

    PS
    I’m expection Juvenal to wade in at any moment and set us all straight.
    I feel a little like I’m bringing the old water pistol to the gunfight again.

  7. juvenal_urbino Says:

    It’s been a hectic week, here in Lake Woebegon, so I’m sort of catching up with various threads.

    I’m not sure what the rightwingers’ point about republic vs. democracy was, Sandi, unless it was what Cap’n suggests. Other than that, I can’t make heads nor tails of it.

    On the subject of what the Framers had in mind when they (Madison) wrote the 1st Amendment and ratified it, or what they would think of our modern debates about the meaning of the 2 religion clauses, I really don’t think we can say much that’s either intelligent or useful. The people who voted to ratify that language had, as best I can tell, widely varying understandings of what it meant. I don’t see how we can derive anything dispositive from that.

    As for Madison’s intent, I don’t think we can know that, either. There are 2 key facts about the man himself that I think obscure our knowledge of his intent: 1) he was, in addition to being a spookily brilliant political theorist, an extremely shrewd politician; 2) the Bill of Rights was an afterthought to him. (Actually, he was opposed to the idea. Not because he opposed the notion of the people having those rights, but because he thought a bill of rights an ineffectual way of preserving them.)

    Now to unpack that a bit. Madison’s main goal during those years was to get the Constitution itself ratified and off to a strong start. Its opponents, in exchange for their grudging support for ratification, had insisted on a promise that a bill of rights be added ASAP. Madison, therefore, wrote the amendments to clear that debt; the language he used in them is the language he, as a shrewd politician, felt confident could garner the necessary support from the various factions in Congress and elsewhere. IOW, the language he chose was born as much of political calculation as philosophical idealism. It was — dirty word — a compromise. If you want to see Madison strongly advocating language representing a specific philosophical position on church-state, you have to look to the earlier debates in Virginia over that state’s constitutional provisions on the subject. (He won that debate, but Virginia’s ensuing experience on church-state matters is one reason, by the time of the debates over the federal constitution, he had lost faith in the efficacy of bills of rights in general.)

    Regardless of all that, Madison didn’t want his intent (or anybody else’s) to govern the understanding of the constitutional language, anyway. His view was more along the lines of Justice Scalia’s — that the meaning of the language was to be found within the document itself, and very strictly construed. However, he also said he didn’t expect the Constitution to last more than a few generations under those strict interpretive guidelines; then the country would have to toss it aside and come up with a new one. Frankly, I think it’s much preferable to keep the existing document and loosen the interpretive guidelines.

    So, all of that on the subject of original intent.

    On the subject of what Madison and the others would think of our modern church-state debates, I hold a similar opinion: we just don’t know enough to do any more than guess, and our guesses generally have more to do with who we are than with who they were. The country has just changed too much in too many ways for us to be able to lift their words and thoughts out of the 18th century and make them speak to our debates. Would our debates over school prayer blow their minds? Very likely. But the most mind-blowing thing about it would be our public school system, not the prayers. (Except to Jefferson, of course, who advocated public school systems early and often.)

    Aside from the general changes in the country, there’s the intervening political crevass of the Civil War and Reconstruction. I really don’t think we can carry the Framers’ words across that barrier and apply them on this side as if those events had never happened. I’m thinking specifically of the AEI book’s argument about state establishments. It’s more probable than not that AEI is right: the religion clauses generally weren’t thought to touch state establishments. The problem is, neither were any of the other federal civil rights thought to apply to the states. All of that changed with the Reconstruction amendments, and I really don’t think we want to go back on that. The South keeps trying, with theories about “interposition” and so forth, but happily, those arguments have been, thus far, rejected.

    Well, I’ve rattled on long enough.

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