Disparaging the Constitution is counterproductive for ordinary Americans. Sure, it is not perfect, but one runs a grave risk by not supporting it: the Koch Brothers, ALEC, the Federalist Society among others are driving for a new Constitutional Convention which is likely to result in far fewer guaranteed rights than the Founding Generation won. They, and other oligarchs, know the Constitution protects the people from those with power, hence they desire its demise.
Maybe we should remember the world as it was before the Declaration of Independence (the first American “Constitution”) and the one adopted September 17, 1787, the “Second American Constitution.” (Actually Third, as the Articles of Confederation were second.) That was a world ruled by oligarchs.
Except for a few Kings, Popes and Lords, everyone, everywhere was basically a slave, or a serf, servant, peon or “deplorable.” EVERYONE. The Kings were all former warlords who happened to be victorious against some other warlord (think “William the Conqueror) all of whom had little to no respect for the “rights of humankind” except their own, and maybe their kids. Most people had no rights against the powerful, and were dictated what they could read, write and think as well as what they could teach their children. Science was a flickering spark in a vast darkness. Making tomorrow better than today was a vain illusion.
The Constitution, with its Bill of Rights, with guidance from the Declaration of Independence on the bounds of legitimate government, has empowered the average American to take up the cause of liberty and justice.
Even in America 90+% of most white people were effectively slaves, and certainly the red, black and brown people were, so too women and children. The whites were only “indentured servants” but most served between 7 to 20 years and the contract was often unjustly extended by the “employers” adding charges for things broken or worn out that had to be “repaid” by longer servitude. There was no freedom of speech or thought or religion, marriage, travel, nor right to trial by jury, rule of law or anything but “might makes right.”
The Declaration of Independence made possible an entirely new view of humanity—one with “inalienable rights” that no legitimate government could take away. A humanity free to think for itself, to write what it thought, to teach its children how to struggle for a better life in the face of all the “authority” arrayed against it. It was an idea that ignited the world and led in later years to many struggles for independence and liberty across the human world.
I am often condemned as being “worshipful” of the Constitution. To that charge let me reply: the Constitution was a reactionary move by the propertied and powerful. It was an assault on the rights and liberties won by the 5% of the American people who supported the Revolution against English tyranny and whom were tough, rough, iconoclastic, former indentured servants who were fed up with others thinking they were chosen to wear boots and spurs and ride on the backs of others. They slept and walked barefoot in the snow, in rags, at Valley Forge and throughout the revolution, their bloody footprints following as they marched. No one gave them their rights. They took them.
Following the Revolution, these rowdy Americans became “unruly,” shutting down courts when they foreclosed on their neighbors, resisting judges and prosecutors who seemed to abuse their power against the rights of the people who by their resistance made it tough for the 1% to make a buck. So, Congress authorized a committee to come up with some Amendments to America’s Second Constitution, the Articles of Confederation, to try to restore some semblance of “governance” on an unruly America.
The result was the arguably unlawful, certainly ultra-vires (beyond the power), third American Constitution, the one we have today.
It was devised and written in secret and was met with overwhelming skepticism by most “ordinary” people as a result. The Anti-Federalists, including Patrick Henry, threatened a new revolution because the proposed Constitution did not guarantee in the supreme law the rights and freedoms for which the Revolution had been fought. This threat was no idle posturing—the Anti-Federalists were armed, they were tough, many were veterans of both the Revolution and “Indian Wars” and did not joke when they condemned the proposed Constitution’s defects as an affront to the blood and sacrifices of their fathers, brothers, friends and neighbors (including many women and children) who had fought for a new type of government—one instituted solely to advance the rights of “life, liberty and the pursuit of happiness” of the people, not the aristocrats.
The Federalists were forced to back down. A Bill of Rights was demanded, over one hundred amendments were proposed by the people, and the Constitution barely squeaked by being adopted in closely contested state Conventions. The promise of a Bill of Rights being quickly adopted probably carried it over the opposition.
Once adopted, Congress quickly moved to enshrine a “Bill of Rights” securing in law the rights to free speech, thought, assembly, association, religious exercise and belief, the right to bear arms, trial by jury, restrictions on bail, rights to be presumed innocent if charged by government with a crime, and the 9th and 10th amendments to make clear the government ONLY had the powers enumerated in the Constitution—no others which we reserved to the states or the people respectively.
The reactionary party, the Federalists, knew they were on thin ice following the adoption of the Constitution and the people were suspicious of the new powers granted the government. Hence, they elected Geo. Washington as President in part because they knew the people regarded him as an honest and moral man, fearful of the Creator, who they could trust to some degree not to abuse power. After all, the people knew Washington had turned down the offer of the Revolutionary Army to make him King after the war and Congress’s failure to pay them “for their service.”
Following Washington's two terms, John Adams became the last Federalist President because of his being corrupted as he assumed power, foremost among his violations being the “Alien and Sedition Acts.” An energized people threw out the Federalist Party and Adams and the Jefferson administration followed with a greater fidelity to limited government, for a while.
All government tends towards tyranny. Even the American government. The more powerful the government, the greater the temptation, the more irresistible the bribes, the sooner the decay into tyranny. America was not exempt and is not exempt today. But despite the fallibility and corruptibility of those elected to “lead,” the American people could fight back using the rights guaranteed them by the supreme law: they spoke, they wrote, they assembled, they petitioned, they violated laws and got jury trials where their fellow citizens acquitted them when justice required no matter the corrupt laws seeming to require conviction (see, e.g. Fugitive Slave cases.) The past would have been much darker without those rights, to which even the most craven of government agents must give lip service or defile the sacrifices of American patriots, as well as violate their oath to preserve and defend the Constitution.
Yes, the Constitution has defects. Amendments are needed to address deficiencies. Parchment barriers have often been insufficient to safeguard the rights of the people in the face of naked, often psychopathic, power grabs. The history of America is full of examples of government usurpation of powers it was not granted and deformation of powers, such as the power to declare war, that have been improperly delegated from the Congress to the President. Every such usurpation has been to the detriment of the interests of the people, no matter how it is “spun,” because they represent a perversion of America’s social compact”: rule of law not men.
But the Constitution, with its Bill of Rights, with guidance from the Declaration of Independence on the bounds of legitimate government, has empowered the average American to take up the cause of liberty and justice, to fight for it and advance it in the streets, the ballot box, the jury room, the school room, not in derogation of the law, but rather in service to the “supreme law.” This is the ongoing American Revolution. One fought not by guns, but by law. The fight of the people, day by day, year by year, by ones and twos, and by hundreds of thousands, to exercise their rights against all enemies, foreign and domestic, to establish a government of law, not of men, to make a better America, of liberty and justice for all.
It is a fight not yet won. It is a fight that may never be fully won. But it is our fight, the American fight. And it is a fight we, together with our neighbors and communities, men, women and children of all colors and all creeds, should proudly undertake in alliance with our hard-won Constitution. I say, Happy Birthday Constitution! We the people wish you well and we will continue the struggle, with your help, against all arrayed in opposition to the rights of the people.
Kary Love is an attorney in Michigan who concentrates his practice in civil and constitutional matters.