Re-reading the Declaration of Independence last week got
me thinking about the principles on which the Founding Fathers established this
nation, and how they went about charting and navigating new political waters.
Their courage, their reason, their farsightedness and their dedication to
learning from the past to shape the future are (to my way of thinking) a
considerable part of why we’ve survived with a consistent government for more
than 200 years.
So this Gratitude Monday I say we give it up for the
Founding Fathers. Damn, but these guys had style.
For one thing, we celebrate our independence on the
anniversary of the signing (more or less; I’m not going to quibble about a day
or two) of the Declaration of Independence. I’ve already written about what a stunningly
beautiful document that is. But here’s the thing: we celebrate making the
statement as our moment of independence and not, say, the surrender at
Yorktown, when it could have been said that we actually won it.
The Enlightenment was all about the ideas, of course; but, still.
First of all—they weren’t perfect. No one’s saying they
were. But, in very trying times they put their not inconsiderable minds to
solving highly complex and high-risk issues that had serious consequences whichever
way things fell out. When 56 representatives signed the Declaration of
Independence, they absolutely knew they were pledging their lives, their
fortunes and their sacred honor to the cause of dissolving the ties with
Mother England.
And they did have fortunes to lose—they were for the
most part successful men with comfortable lives, which they put on the line by
taking this radical step. Never before had ordinary men put their money where
their mouths were in saying “all men are created equal and endowed by their
Creator with certain unalienable rights” and “that among these are life,
liberty and the pursuit of happiness.”
(Yes, Jefferson borrowed that last list from John Locke;
it was the Enlightenment, after all. But Locke had spoken of life, liberty
and property; this whole “pursuit” and “happiness” idea? Radical, dude. Totally
rad.)
And yes—by “all men” Jefferson actually meant only
men, and really only white men; women and men of color weren’t considered
part of that equation. But he did mean “all white men”, meaning “[white] men of all
social and economic classes”, which was also rad. The last document spelling
out the rights of the governed was Magna Carta, and the only people who
counted in that one were barons and better in the social strata.
But I’m going to leave the Declaration aside and move
on to another extraordinary document, the one that defines us literally and metaphorically as no other document does for any other people. Yes, my
children, I’m talking the Constitution.
You may think I lead a sad life (okay, I do), but every
once in a while I pull that sucker out and read it because it is just
beautiful. A carefully-reasoned charter for how the FF thought a government
should work. Compared with similar documents, it is amazingly short—just a few
pages. (You drop the California state constitution on your foot, you’re going
to need a cast.) And, considering that they had no precedent to guide them,
they laid out a form of government that is as beautiful and reasonable and flexible and—yes—balanced as any ever devised by men.
I suppose it’s that Enlightenment thing, balance; but
seriously—no one had ever thought, “Hey, this whole gov’mint thang might work
pretty well if we divvy up the powers three ways. And—how ‘bout we make sure
that no one of them ever gets top hand? Yeah, that could work, huh?”
Of course, they said it more elegantly than that. But in just seven articles they mapped out what powers went to which branch, how each would
provide a check on the others and what redress We the People would have
against them all.
Plus—they learned from the past. Imagine that.
Following the Treaty of Paris in 1783, the new United
States weren’t really what you’d call united—they were sort of loosely
confederated. Which worked about as well as a chocolate teapot. No one would
play nice with anyone else and they were all pretty much in it for
themselves. (Interesting to me that the FF figured out the flaws in this system, but the leaders of the 15, uh, Confederate states didn’t in
1861. Um.)
So they put their bewigged heads together and thought and thought, and agreed that everyone would have to give up some autonomy
in exchange for economic and political stability. Or, as the preamble says, “
to establish Justice, insure domestic Tranquility, provide for the common
defence [sic], promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity”. That pretty well covers all the major food
groups.
Yes—their plan was still for white males. Black men were
counted as 3/5 of a person for purposes of electing Representatives (women
and Indians weren’t counted at all), and of course no one except the white adult
males had voting rights.
But here’s the deal—and another reason why we should give
the FF their props: because there was concern that the Constitution wasn’t
locked down enough for the states to ratify it (remember—even though the
loosy-goosy management of the Articles of Confederation hadn’t been successful,
people were still leery of a, you know, central
government), Mr. Madison of Virginia got together with his posse and proposed ten amendments, which spelled out very clear limitations on what the
government could and couldn’t do.
This Bill of Rights, as it came to be known, beautifully
limits the reach of official Federal mitts. (A friend of mine believes the
amendments should have stopped after five words: “Congress shall make no laws”,
but I think he may be joking about that.) And many of those limits were in
direct response to English abuses:
No established religion, also known as separation of
church and state. That Church of England thing really ate people’s lunches.
Freedom of speech, of the press, of peaceful assembly, of
right to petition. All of these had been curtailed by the English at one time
or another.
Right to bear arms—because we didn’t believe in a
standing army, we relied upon militia to come to our defense. Look it up—the amendment
says, “A well-regulated Militia, being necessary to the security of a free
State, the right of the people to keep & bear Arms, shall not be infringed.” You never know when you're going to need to lurk behind hedges and shoot at English troops marching down the road.
No quartering of troops; no unreasonable search and seizure; due process of law, to include no double jeopardy and no
self-incrimination; speedy trial by jury…and on and on, until you get to
the tenth, which (and damn, these guys were good) limits the powers of the
Federal government to those specifically stated in the Constitution. No slipping
any surprises in, guys, ‘cause this is a written
Constitution.
And the amendments constitute another beauty of FF
capacity to plan ahead—they’ve allowed it to grow with the country and the
times. So that counting the Bill of Rights, it’s been amended 27 times. The 13th
abolished slavery; the 14th established the Equal Protection Clause;
the 15th prohibited denial of suffrage based on race, color or
previous condition of servitude; the 19th finally opened up the vote
to women.
And yes--there have been crack-pot amendments: the 18th banned the production and sale of alcoholic beverages. And it had to be repealed by the 21st a few years later. We make mistakes and we recover from them. It's the recovery and learning that really matter.
I could show how the judicial-legislative balance has evolved by talking about how Plessy v. Ferguson (1896) established the "separate-but-equal" interpretation of the Equal Protection clause; and then Brown v. Board of Education scuppered that 58 years later by deciding that separate is inherently unequal, opening pretty much everything to, well, everyone. But we have a more recent example.
The DOMA ruling last month encapsulates two of the ways
the FF really understood how this would work: it was the judiciary branch
slapping down the legislative, based on the Equal Protection clause of the 14th
Amendment. That old Constitution, she just keeps rolling along, despite the
massive wrenching of the War Between the States, industrialization, entry into
the world stage as a great power—all things that could have broken a system
less carefully planned.
So—Founding Fathers, many thanks for a job well done. I’d
buy you a drink if you were around today. And if you let me into the bar. With my lady-money.
