Global Intifada

This post is a response to Sidi Musaddiq in the “Is the Constitutional illegal?” note where he asserts, among other things, that the Constitution is a superior moral document than the Articles of Confederation and couldn’t follow the procedures for amendment laid forth in the Articles since it made amending it impossible.

Instead of responding in the thread, I decided to post my response in a separate note since it was quite lengthy.

————————–

There are three underlying flaws in your argument.

Firstly, you presume that the Articles of Confederation were resistant to change without showing how.

Secondly, you presume that the Constitution itself is more open to change, but the historical record denies this assertion.

Thirdly, you posit in the moral superiority of the Constitution, yet it was ratified in an immoral manner and institutionalized immoral practices such as slavery.

With regards to the Articles of Confederation, nothing in the historical indicates that the founding fathers made a concerted effort to utilize the amendment process at all, other than the Annapolis convention whose legality was questioned by the very state in which it was held in, Maryland, which refused to send a delegate. How can the Articles of Confederation be described as resistant to change under such circumstances? Describing a legal document as being resistant change implies that their have been repeated attempts to change the document. In the case of the Articles, there wasn’t a single legal attempt at revising the document. The document existed barely for five years before it was scrapped. Thus, practically speaking, there is no argument that the Articles of Confederation were resistant to change since the procedure for changing the document was never utilized. In terms of the theoretical flaws of the procedure process, they will be discussed in the next paragraph.

With regards to the Constitution and the assertion that it is more open to change than the Articles of Confederation isn’t supported by the historical record either. The Constitution sets up stringent structural and procedural impediments that make amendment next to impossible. Recall that many state legislatures instituted formal policies for amending the Constitution and submitted them to direct vote, while some states even MANDATED conventions to revise their respective constitutions. The Constitution is a remarkably reactionary document: it made ratification easy (9/13 states who held conventions by a body that was illegitimate) but made amendment difficult since it required 2/3 of both houses of Congress plus ¾ of state legislatures or a national convention. The unanimity rule under the Articles of Confederation may be perceived as flawed because one state could effectively exercise a veto over any amendment process, however, the veto power of the states still exists under the Constitution, although in a more subtle way.

The Constitution contains several structural checks against influencing the political system. Due to the “equal vote” rule where states get an equal vote in the Senate, this increases the voting power of smaller states dramatically to the degree that 17% of the country votes effectively for the majority of the Senate. This 17% of the population could and has effectively stifled the legislative process, when it comes to the amendment process. This is one explanation for why so few amendments have passed in the country’s history. In fact, the 27th Amendment was proposed in 1791 and not approved until almost 200 years later! This hardly sounds like a ‘flexible’ and ‘dynamic’ document to me.

Moreover, a good number of the amendments were passed under questionable circumstances. Most of the amendments in the Constitution occurred in three phases: (a) after the ratification of the Constitution, (b) the Civil War, and (c) the Progressive Era. However, none of these periods were democratic in the sense that they represented the people. The era of the founding fathers doesn’t really count to see if the amendment system was functional because the people who wrote the Constitution passed the first ten amendments. Also, the Bill of Rights was not an entirely new set of amendments, many state constitutions already contained a bill of rights. Thus, the introduction of the Bill of Rights cannot be considered the true test of the functionality of the amendment process. One could argue that the Articles of Confederation lacked such a Bill of Rights. However, under the Articles, there was no need for a Bill of Rights since (i) the Articles set up a decentralized government that didn’t have the power to infringe upon the rights of the people and (ii) it gave greater powers to the state, many of whom granted more freedoms under their respective Bill of Rights than our present day system of Bill of Rights do. More importantly, the amendment procedure of the states was more dynamic than the present Constitution and thus balanced out the purported deficiencies under the Articles of Confederation.

The next major amendments came after the Civil War, which occurred at the barrel of the gun since the victorious North wouldn’t allow Southern states into the Union in an equal manner if they didn’t approve those amendments. These amendments cannot be used to attest to the amendment procedure since these procedures were effectively violated.

The Progressive era passed a lot of amendments, but some of them were frivolous and had nothing to do with governance itself such as the amendments prohibiting sale of alcohol and those that repealed them. The remaining amendments (lowering of voting age, subjecting Senate to the popular vote instead of appointed by States) hardly change the structure of the Constitution at all. These amendments could have just as easily passed under the Articles of Confederation.

Thus, it can be argued that the Constitution is both functionally and theoretically inferior to the amendment procedures established under the Articles of Confederation and the state constitutions.

Lastly, you argue that the Constitution is a superior document because of its purported moral superiority. This claim has been thoroughly debased by the simple fact that the Founding Fathers violated the procedures for revising the political system without even making a sincere good faith effort to use this system. Moreover, they utilized questionable moral practices such as violence, bribery, and threats of economic sanction. However, the nail in the coffin for the claim that the Constitution was morally superior to the Articles of Confederation comes in the form of slavery. The Articles of Confederation in no way, shape, or form ever institutionalized slavery as much as the Constitution did. In fact, one of the first acts of Congress under the Articles of Confederation was the Northwest Ordinance of 1787 which banned slavery in the Ohio country. Interestingly enough, many of the future Bill of Rights were protected in the Northwest Territory (Ohio, Illinois, Indiana, Michigan, and part of Wisconsin) such as religious tolerance, property rights, right of habeas corpus, a ban on excessive fines, a ban on cruel and unusual punishment, trial by jury, and a ban on ex post facto laws. (This reinforces the point that the first 10 amendments were hardly new and is weak evidence of the viability of the amendment procedure laid forth in the Constitution)

Unlike the Articles, the Constitution not only recognized slavery, but the very structure of government was affected by it. There are four specific clauses that were affected by slavery: (a) the ban on prohibiting the importation of slaves, (b) clauses pertaining to the “the 3/5th Compromise”, (c) the clauses pertaining to the “the Great Compromise”, and (d) the Fugitive Slave clause.

Ban on Prohibition of the Importation of Slaves. Article 1, Section 9 clearly and expressly prohibits Congress to decide questions pertaining to the importation of slaves before 1808. The ban on the prohibition on importation of slaves is important because it effects the number of slaves that are in the country. The number of slaves in the country is important because it affects the voting power of each state.

Three-Fifths Compromise. Article 1, Section 2, Paragraph 3 establishes that three-fifths of the population of slaves could be counted for enumeration purposes for the apportionment of the members of the House of Representatives and tax purposes. In other words, the number of slaves in any given state would be counted towards how many representatives they would have in the House of Representatives. The more slaves a state had, the more representatives they had.

Thus, the ban on the prohibition of importation of slaves is crucial since it effectively enabled the South to import slaves and get more voting power in the House as well as the Electoral College which is also based on such representation. In South Carolina, 43% of the population was slave; in Maryland 32% of the population was slave; in North Carolina, 26% of the population was slave, in Virginia, 39% of the population was slave. Overall, the entire population of the US that was slave was 18%. In fact, 12 of the first 16 presidents were Southern slave owners.

Great Compromise. The issue of slavery and voting power affected another structural component of the Constitution that cam out of the “Great Compromise.” Since states with large populations (many of them engorged by slave populations that were counted in the formation of electoral districts, but not allowed to vote) were to exert disproportionate voting power in the legislature, smaller states felt threatened. Thus, the legislature was agreed to be divided into two unequal components: the House and the Senate. The House was based on population and the Senate would be comprised of two members for each state. This division of power turned out to be patently undemocratic: the House institutionalized slavery by creating incentives for Southerners to import slaves to exercise more influence in the political system while the Senate gave states with far fewer populations greater voting rights. Either way, the set up of the legislature demolished the myth of “one-man, one-vote.”

Fugitive Slave Clause. Not only did the Constitution not allow the importation of slavery to be banned for 20 years and not only did it create incentives for them to import slaves in order to get greater political power, but it cut off the one means to reduce slavery by the fugitive slave clause which, by legal mandate, required Northern states to return slaves back to their owners in the South.

None of these practices occurred under the Articles of Confederation which localized slavery to particular states and didn’t allow it to spread into new territories. The problem of slavery, however, is only one facet of the immoral nature of the Constitution which also institutionalized the appropriation of Native American lands, among other things.

In conclusion, the Constitution is an illegal, undemocratic, and immoral document.

Share This