The Infallibility and Relevance of the Constitution

Sometimes a comment just requires that its subject needs its own post. A discussion on whether or not the Constitution is a working or living document and on the infallibility of the Constitution are certainly subjects that bear more thought and consideration than a simple comment reply. I admit a significant amount of self-satisfaction in the results of my writing this article as the research and subsequent analysis took longer than I envisioned but was enjoyable in producing many thought-provoking hours of conversation and reflection before I came to the following narrative. I’m in hopes that this article provides fodder for reflection to those who read it – and in return, they will post their answers to the posed questions and submit their own analysis for the two questions posed: Is the Constitution a working or living document and is the Constitution infallible?

Is the Constitution a working or living document?

As always, the best place to start is with definitions: my definition of a working document is one that is a work in progress – a preliminary to a final version, a draft; and my definition of a living document is a document that is continually changed and edited by either a limited or unrestricted group that has no intention of having a “final” version.

The inclusion of Article 5, which provides for a structure to change to the Constitution, pretty clearly indicates that the Founding Fathers had enough foresight to understand that some changes might be needed as a consequence of the natural course of human events. But I’m not sure I would categorize the Constitution as either a working or living document. I don’t completely believe that the Constitution is either a preliminary, unfinished document or one that must be continually changed and have no expectation of a final document. The phrases “preliminary”, “draft”, and “continually changed” cause me some angst.

However, I would define it as a document that outlines the system of fundamental principles according to which a nation, state, corporation, or the like, is governed. Documents such as these are invariably changed as needs arise and I think an assertion that the Constitution as one or the other largely depends on what one might consider a need for change and the frequency such changes are assessed and propagated. This initiates a discussion on when a need for change is identified – and what constitutes a need great enough that the Constitution itself must be changed. To suggest that the Constitution must be changed suggests that the Constitution is fallible – creating a nice segway to the second question: Is the Constitution infallible?

Is the Constitution infallible?

This is an excellent question. In order to discuss any infallibility the Constitution may have, I think you first need to identify and discuss what is fallible about the Constitution? Where has it failed? What language in it fails to be as relevant today as it was when it was first written? Do we believe that we do NOT have the right to pursue happiness? That we do not have a right to religious freedom? No more right to free speech? Do we no longer believe in freedom of choice?

The Constitution, to me, defines two separate things: The basic freedoms and rights that all citizens of the United States are born with, and a system of united government under which the mutual interests of the States in the union is administered. So to discern any fallibility in the Constitution, we must challenge our beliefs concerning these two topics.

Basic Rights: This principle question here is: As a citizenry, have our ideals on the basic rights a person is born with changed? If so, how has it changed and to what extent is the new ideal prevalent among the citizenry?

• Do we believe that we do NOT have the right to free speech and assembly? Do we believe that because a particular person or group’s ideas are not popular or prevalent, that popular and prevalent speech should be restricted in the name of “equality of opportunity”?
• Do we believe that we no longer have the right to bear arms, either as an organized military or as an individual? Do we no longer have a need or a right to protect that which is ours from those who would take it from us? Are there no countries that would seek to control our land and our resources if we were unable to protect ourselves? Are there no thieves who would seek to acquire our personal possessions if we had no means to prevent them from doing so? Does the right to bear arms include the right to topple the governments of other countries in the name of greater security to U.S. Citizenry? Does the right to bear arms include the right to force our beliefs on other countries by creating governments in our own image? Do we have a right to use arms to force a conclusion to another country’s internal struggle for majority ideal actualization in the name of human rights?
• Do we still believe that the military does not have a right to take our land property to house the military during war or peace?
• Do we still believe that we have an inherent right to privacy and protection from unprovoked and unnecessary invasion of that privacy?
• Do we still believe that soldiers should be protected from conviction of crimes, inherent to and conducted during the business of war and under orders, which would normally be punishable when not in military service? Do we believe that a person can only be convicted once of a crime, that no one has the right to take our personal property without due process, and that personal property cannot be taken under the pretext of imminent domain?
• Do we still believe that we have a right to confront our accusers, have a speedy trial, and a right to counsel? Do we have a right to protect ourselves from laws enacted that are not in our best personal interests and that inhibit our individual pursuit of happiness?
• Do we still believe we have a right to a trial by jury of our peers?
• Do we still believe we have a right to protection from excessive bail and cruel and unusual punishment?
• Do we still believe that non-inclusion of rights in the Constitution preclude us from having those rights?
• Do we still believe that the government does not have a right to assume responsibility and control over any powers and responsibilities not explicitly outlined in the Constitution, including the power to force laws, regulations, and actions upon individual states and/or persons?

I think also, an appropriate question would be: Do we believe that there are other rights that should be outlined in the Bill of Rights in the Constitution and what is the rationale for inclusion?

Government Structure: The governance structure of the United States set forth in the Constitution is Representation of the masses by a few. The Constitution is explicit in its description of this representation, particularly in how it is to be achieved and the responsibilities of those representatives. The Constitution also outlines a structure of checks and balances: the Executive branch (the Presidency), the Legislative branch (Congress: House and Senate), and the Judicial (Court system). Each branch has limited powers to act on its own, has some power to regulate the other two branches, and is subject to regulation from the other two branches. So the principle question here is: Does that structure work effectively today?

• Does representation still work? Are the ideals and wishes of the masses actually represented, or is governance tainted by self-preservation, power, control, and wealth obtainment?
• Is elected representation the most effective means of assessing citizen views and driving majority venues?
• Does the government structure require that representation act in accordance with popular demand?
• Does government only conduct those activities outlined in the Constitution, or more?
• Does the government structure support State’s Rights?
• Does government act in accordance with the State majority wishes or do States respond to government wishes? Does this align with the original intent of the Constitution regarding State’s Rights?
• Does the government structure support or restrict individual freedoms? Is the support/ restriction applicable to all persons?
• What does “promote the general welfare” mean? How does this differ from what it meant when the Constitution was first written?
• Should the government structure have the ability to change our basic rights or definition of those rights?
• Is the role of government to take care of individual people?
• Is it the role of government to alleviate social ills and inequities?
• Should the structure and role of our government be different now than was originally set up? If so, what should that look like?

I would be very interested in feedback on these questions.

So, given these questions, my answer to the question “Is the Constitution infallible”, I find myself yet again in a yes/no situation.

Yes, because the Constitution binds us to a political system of election of representatives, regardless of the effectiveness of that system.

No, because if the representatives acted in the manner intended by the Constitution, the system set forth would be working perfectly.

Yes, because the Constitution does not provide adequate surety that the representatives are acting in accordance with citizen majority wishes. The representatives are supposed to represent the idealism of the majority of the population, but they do not (certainly healthcare reform has proven this assertion). A political system born of necessity as a result of the conditions of communication that existed in the 1700’s (and perhaps trying to fix the choices of government structures occurring in older, established countries) has evolved into a system of career politicians whose only agendas are power, wealth, and control and who take very little interest in the ideals of the masses except during election time. Therefore, I concede that while the governance structure as set forth by Constitution is sound in theory (and was, long ago, in practice) the continuing performance of the structure has been corrupted to the point where a new structure may be necessary to reinstitute acceptable representation of the majority and to hinder the efforts of special interests and populations to force special privileges for the minority on the majority.

No, because its outline of the basic principles of behavior and belief upon which decisions for this country are supposed to be made continues to remain meaningful and valuable to the majority of citizens of the United States as well to those seeking citizenship (legally or illegally).

Yes, because it fails to adequately secure those basic beliefs, behaviors, and rights by allowing the possibility that the wants of a few will outweigh the beliefs and rights of the many.

Yes, because it allows for changes to it without surety of adequate representation of the wishes of the majority, except through election, which is in itself a fallible process.

So, is the Constitution a working or living document? If we now have a given that there is a potential for fallibility in the Constitution, then I can concede that it is, and should be, a living document. The root of the debate however, is not ‘can it be changed’ – the real debate lies in ‘should it be changed’ and if so, ‘what should be changed’, ‘how should it be changed’ and ‘by whom’.

On one thing I will remain very firm. I believe in the basic rights set forth in the U.S. Constitution, even though I have of late been toying with the idea that a change in government structure may be required to reinstitute true representation, because I don’t think that a 3rd party or voting someone new in is going to fix the problem. I believe I have an individual right to define my own ideas of success and failure, to achieve success or failure within those definitions, to chart my own course towards that success or failure, and the responsibility to accept the consequences of my actions. I have a right to share my successes if I so chose, but no one has a right to force me to do so. I have a right to fail, but have no right to impose the consequences of my failures on others. I have a right to offend you, you have a right to be offended, I have a right to not do anything about it unless I so chose; you do not have the right to force me to take any action to alleviate your offense. You have the same rights. I have a right to follow your belief system or chose my own. You do not have the right to force your beliefs on me. You have a right to incorporate my traditions into your everyday life, as I also have a right to do so with yours. I have a right to protect my possessions from you, but not the right to force you to protect your own.

I do not believe that our Founding Fathers ever seriously considered that the citizenry would decide that they didn’t want freedom of choice or that the Constitution itself would be used as support for taking away those freedoms. They understood the human condition enough to know that societal values would erode in the face of power and prestige, and that attempts to infringe upon individual rights would be constant. So, as far as the basic principles are concerned, I don’t believe the Constitution is fallible, a working document, or a living document.  It is an unshakeable ideal from which my entire life is based.

3/5′s of a Person

During a recent trip to Washington, DC, I went to dinner with several friends and colleagues. We were on the Metro and managed to get into a discussion on the state of affairs. There was a new person in our midst and as inevitably happens during political discussions in the Beltway, the conversation came around to the ol’ political monikers question. Amongst us, we had a liberal, an “uber-liberal”, a conservative – and then there was me. (I will note here that this WAS before I wrote my definitions piece and that I am not a believer in stereotyping). Anyway, I said that I thought I was conservative, but neither a democrat nor a republican. But if we really needed to put a label on me, I would have to say I was a Constitutionalist.

My three companions were silent for a moment as they let that sink in and tried to make some assumptions about my political views so that we could continue the conversation. At that moment, a colleague asked, “So does that mean that you agree with and believe in the language in the Constitution that blacks and other races were only worth 3/5’s of a person?”

Now, several things happened in the blink of an eye – my eye to be exact.

First, I took the question to be very racially motivated.

Second, I was immediately ticked off that someone would ask ME a racially motivated question.

And third, I was even more ticked off that the question was seemingly asked as a conversation stopper made to make me look like an un-informed, uneducated, inferior hick who didn’t have any business talking about politics to begin with.

I looked at my colleague and promptly stated that it wasn’t in the Constitution, to which she promptly assured me it was. I said it wasn’t, she said it was. Repeat. Repeat Again.

Now, I have recently taken to carrying a copy of the Constitution in my bag. I like to carry it with me so I can read through it on planes and silent moments to help balance me from some of the things I see when I visit DC. So, true to form, I whipped out the pocket Constitution and handed it to her, saying as I did so, “Here’s a copy of the Constitution and the Amendments. If you can find that language in there, I’ll be happy to stand corrected.” Oh, the bravado of a good meal and a glass of wine.

I turned back to the incredulous faces of my other colleagues, who immediately expressed amazement that someone actually carried a copy of the Constitution and the Amendments in their purse. That’s me, alright – one thing here does not match the others. We went on and for several minutes talked about carrying the Constitution, tea parties, and other things. Out of the corner of my eye, I watched the person holding my copy of the Constitution.

They were turning the book over and over again in their hands, not opening it. Finally, I reached out my hand, they gave me the book, and I put it back in my bag. I’ve got to say that I feel a bit guilty about it. Under normal circumstances, I would have had a much better interaction with them and not been so confrontational. But sometimes the dragon in me gets loose and flies right straight to the end of its chain. Anyway, the interaction bothered me for the next several days until I had time to re-read the Constitution to assess the existence of the language.

As it turns out, we were both correct. There IS language in the Constitution concerning 3 out of 5, but it ISN’T written in the Constitution the way it was being restated in the question. A bit shocked the language was in there at all, I immediately submitted an apology to all my colleagues who were party to the interaction and began thinking about the inclusion of the language and what it truly meant.

So the question that was actually being posed at the time was, “So does that mean that you agree with and believe in the language in the Constitution that blacks and other races were only worth 3/5’s of a person?”

Before I answer that question, I would like to refine the question into what was actually being asked, “Do I believe the Founding Fathers were racists?” In order to answer this question, and then by extension, the one posed to me, I would like to set the scene as I believe it was way back in 1787. The colonies of America had been independent of English rule for only 12 years. Under British Rule, the colonies had been savagely taxed with no representation. In those days, the men working to create a government and build a new country were not all wealthy or elitists. They struggled and worked hard to acquire property and had recently fought the Revolutionary War to insure they could keep it. Slaves were property. (I don’t suggest this was morally correct by today’s standards, I only state that it was a fact in the reality of 1787.)

Now, the 3 out of 5 language in Article 1, Section 2 is specifically related to determination of representation levels in the House of Representatives for each colony as well as population counts for the levying of direct taxes. The formula was relatively simple and straightforward: The total of all free persons, including indentured servants and excluding Indians, plus (+) 3/5’s of all the other persons.

This formula and its purpose are important to note: it is a counting formula, not a value formula. The formula does not in any way, shape, or form, set parameters around the value of the persons being counted. Given the language in the Declaration of Independence, which was essentially written by the same men who wrote the Constitution and establishes that all men are created equal, it seems unlikely that in the 11 years following that the ideals of equality had changed in their minds. Add to that their insistence that every person in the colonies (excluding Indians) be counted in some manner so as to insure adequate representation brings me to the conclusion that the Founding Fathers were not only NOT racists, but they were indeed the exact opposite – true believers that we are all considered equal.

The question becomes, then, why the language?

I have chosen to look at this situation from two points of view:

1. 1. technical constraints of the time
2. 2. political constraints of the time

Utilizing today’s complicated standards for counting persons, there are several constraints on the accurate accounting of populations, which I would suggest not only existed back in 1787, but were probably exponentially bigger barriers than we have today. Among these constraints are:

1. The lack of timely communication methods
2. The lack of appropriate data gathering processes
3. The lack of appropriate mathematical counting methodologies
4. The persistence of and lack of documentation of the sale of property
5. The lack of ability to sufficiently audit property owners to assure accurate reporting of property

So, while the Founding Fathers were firm in their insistence that all persons (excluding Indians) be counted, they recognized that there was no way to accurately count all the persons on colonial soil. While “free” persons might be able to be counted relatively easily, it stands to reason that the lack of good documentation, regulation, and the persistence of turnover and rapid population growths of owned persons, it was going to be impossible to get an accurate count.

Now, property owners would have another reason to under-report the number of persons that they owned. Having only been 12 years out from under the heavy taxation imposed by England, it stands to reason that they would be resistant to taxation on the full extent of property (any property) owned. If you can for a moment envision the momentous work required to develop a definition of homelessness, and equate that process to the development of a definition of “property” for taxation purposes, and mix in a healthy respect for the complexity of our current tax system, and the political influence of wealth…I’m sure you can picture the heated debates that must have occurred back in 1787, regardless of a common equality ideology.

So we know that there were at least two influences back in 1787 that impacted the counting formula for representation and taxation: significant counting constraints and financial influences.

Which brings us to an interesting realization – even though there must have been significant opposition to the inclusion of non-free persons in a count for taxation purposes, there was significant support for governmental representation of all persons, regardless of status.

So my answer is “No” – and “Yes”. If you take the question originally posed to me at face value, as an accusation that the language of 3 out of 5 was written as a sign of value of owned persons and therefore racist, then no, I do not agree with it. But do I believe that the Founding Fathers were racist? No. If anything, I believe their actions of inclusion spoke volumes about their belief in equality.  Do I believe that the 3 out of 5 language is simply a counting methodology?  Yes.  And “Yes”, I can agree with the counting methodology and constraints that produced the 3 out of 5 counting language. It represents a reasonable balance between the desire for a government for and by the people and the financial realities of 1787.

Getting Started…

It took me a long time to decide on a name for my blog.  After all, it provides you the reader with the first impression of who I am and will undoubtedly provide a whole host of pre-conceived notions about me.  Since this blog is about my exploration of my points of view on various subjects, I would encourage you to read through my text as I will invariably include a definition or two so that you are clear about the foundation from which I am exploring a particular point.

There are a lot of challenges facing our nation.  I am hoping for some good solid discussions and debates on the subjects about which I blog – it’s one of the reasons I’ve decided to do it. I’m very open to learning about views that differ from mine and I’ve got no problem with healthy discussions that are based on reliable documentation and logic. I’m hoping to discuss things a specific as line items in regulations to loftier philosophical concepts surrounding the development and current state of affairs not just in the United States but the world.  However, disrespectful and inflammatory content is not okay with me and you can be sure that I’ll let you know when I think you have stepped over the line and we need to get back to a controlled debate.

It’s probably best to start out with a few definitions as a basis for discussion.  These definitions were all found online in the Merriam-Webster’s dictionary.

 re·pub·lic:
1 : a government having a chief of state who is not a monarch and who in modern times is usually a president;
2 : a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law;

 de·moc·ra·cy

1 a : government by the people; especially : rule of the majority b : a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections
4 : the common people especially when constituting the source of political authority
5 : the absence of hereditary or arbitrary class distinctions or privileges

 con·ser·va·tism: 

2 a : disposition in politics to preserve what is established b : a political philosophy based on tradition and social stability, stressing established institutions, and preferring gradual development to abrupt change; specifically : such a philosophy calling for lower taxes, limited government regulation of business and investing, a strong national defense, and individual financial responsibility for personal needs (as retirement income or health-care coverage)
3 : the tendency to prefer an existing or traditional situation to change

 lib·er·al·ism:

b : a theory in economics emphasizing individual freedom from restraint and usually based on free competition, the self-regulating market, and the gold standard c : a political philosophy based on belief in progress, the essential goodness of the human race, and the autonomy of the individual and standing for the protection of political and civil liberties (freedom from arbitrary governmental interference (as with the right of free speech) specifically by denial of governmental power and in the United States especially as guaranteed by the Bill of Rights); specifically : such a philosophy that considers government as a crucial instrument for amelioration of social inequities (as those involving race, gender, or class).

 Progressive:

b : one believing in moderate political change and especially social improvement by governmental action

I’ve got to say, based on these definitions I am a quasi-conservatively liberal republican – in other words, there are pieces of these definitions I would associate with, but there are also pieces with which I completely disagree.  For instance, under Liberalism, I’m good with the definition right up to the point where the definition identifies “government as a crucial instrument of amelioration of social inequities (as those involving race, gender, or class).”  I’m pretty much of the mind that government, as an entity for the last 100 years, has been the cause of much of the social inequities in the United States.  But more on that later.

Likewise, I’m also good with the conservatism definition right up to the tendency to prefer an existing or traditional situation to change”.  I don’t have a problem with change, but my comfort level and agreement with the change is entirely dependent on the nature of the change, the forethought and analysis that occurred to initiate the change, and the change control utilized to affect the change.

I am definitely in line with the definition of republic, and hence, I guess I can call myself a republican.  When it comes to government, I believe less is more.  I have some strong feelings about the role I believe that government should play, and I’m sure that I’ll get to a blog post sooner than later on what the role should be, but for now, it’s enough that I can identify myself as a republican under this definition.  The rub?  I don’t think that this definition is the one that is associated with Republicans nowadays. 

Likewise, I can’t disagree with the definition of democracy, although I think that the inclusion of the “absence of hereditary or arbitrary class distinctions or privileges” is a tad naïve.  Class distinctions and privileges have been around for millions of years (if you believe the scientists, even cave men had hierarchies of command and control – probably the result of mimicking wildlife – and I challenge anyone to point me to a country, state, area, region, or other entity that encompasses more than 1 person and DOESN’T ACTUALLY have a hierarchy based on gender, race, or socioeconomic conditions).  It seems to me if we haven’t been able to breed it out of the human race by now, it’s not likely to happen.  Not that we haven’t tried – and tried hard here in the United States – but at this point, it’s just the definition of insanity.  Of course, I’ve got some thoughts on WHY there are still such disparities between classes and how they should be handled, but that’s another blog, too.

What I do find interesting is that the definitions of liberalism, conservatism, democracy, and republicanism are so close; all four revolve around the same core values of that the purpose of our government is not to run our lives for us, but to protect our freedoms and rights so that we can collectively create opportunity, sustain self-responsibility, and find our own brands of happiness.  You would think that since we are all so much alike, we could get along better.  But, power DOES corrupt, eh?

And progressivism?  I’m not in agreement with any of that.

So beware when judging my blogs – know under what definitions I am working.  Since it’s my blog, I’ll assume that when you use these words, you’ll do so utilizing the definitions I’ve outlined here or provide me with a new definition that is your basis.