Would Obama Have Supported Ratification of the US Constitution?

by Of Thee I Sing 1776

The Constitution of the United States of America is a remarkable document.  It is eloquent in its simplicity, clarity and in its power.  It revolutionized (first in America, and then throughout most of the western world) the relationship between those who are governed and those who govern.  It has served as a governing template for much of the democratic western world.

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Every federal office holder swears allegiance to the Constitution, not to any leader, not to any party, not to any political philosophy—only to this document, which is the foundation upon which our form of government is based and against which all legislation and judicial actions are measured.  The President vows to do his job faithfully and, to the best of his ability, to preserve, protect, and defend the Constitution of the United States.

And while there is no way of divining what today’s crop of leaders would have thought of the Constitution had they been present at the founding when it was first circulated prior to ratification, we have our doubts whether many of today’s ruling class, including President Obama, would have found common cause with Washington, Adams (John), Jefferson, Franklin, Madison, Hamilton or Jay, all of whom loomed so large on the emerging American landscape.

This speculation is not intended as criticism of our political leadership or of the president.  Many great American patriots who were present at the founding opposed ratification of the Constitution.  Indeed, such American icons as Patrick Henry, Samuel Adams, John Hancock, George Mason and James Monroe, were resolutely opposed to ratification of the Constitution, so wary were they of concentrated federal power. Time has, of course, demonstrated the remarkable wisdom of those who fought for ratification and the value of the gift they bequeathed to us all.  The question raised by this essay, however, is posed as the basis for discussion of whether a document written so long ago, which lays out with simplicity certain fundamental rules and relationships, can truly guide this nation 221 years later.

And while we can’t know for sure how any politician holding office today would have voted had they been in a position to support or to oppose ratification of the constitution, we pretty well can determine whether the political views they hold today are consistent with the views of those founders whose genius produced it.  Let us, again, reiterate that support of, or opposition to, the Constitution at the time of its ratification was not an indication of one’s patriotism or love of country.   Those who drafted it also anticipated that it might have to be changed from time to time and provided an elaborate, albeit cumbersome, procedure for doing just that and, in fact, it has been amended twenty-seven times, with the first ten amendments literally a condition of ratification.

George Washington, who was a strong proponent of ratification and without whose support, ratification would have been impossible, nonetheless, faced severe constitutional crises during his very first administration.  One would think that determining the intent of its original drafters would have been pretty easy back then.  After all, the original drafters were all right there. All one needed to do was just ask.  Not so.  While they were all there, they didn’t all necessarily agree on what each of them intended in each sentence, section or Article.  They, of course, anticipated that there would be constitutional disputes and thus they constructed an independent and co-equal judicial branch, the pinnacle of which is our Supreme Court.

However, even the Article establishing the judiciary was not universally accepted by all the founders as giving the judicial branch the power to be arbiter of the meaning of the Constitution.  It wasn’t until the landmark case of Marbury v. Madison in which the concept of judicial review was established, or the Supreme Court labeled a Congressional act to be “unconstitutional.”

Washington also faced Supreme Court contests over his right to remove cabinet officers, the Jay Treaty, which formally ended the war with Great Britain and, arguably, whether or not the federal government had the right to send federal troops to put down a domestic rebellion.  Yes, we had a rebellion within the United States during the first Washington administration (“The Whiskey Rebellion”) and we did, indeed, send in federal troops to quell the insurrectionists.  .

But there was one principle about which there were no controversies at the founding.   Americans would be the freest people on the face of the earth, free in particular of undue government interference in their lives.  They would live in the world’s first meritocracy and they would be free to make their own choices about their political preferences and their economic pursuits. And while it would take close to a century before the young country would finally throw off the yoke of slavery, an institution that had long predated the founding, American citizenship represented a bold new experiment in human progress.

What was it, exactly, that launched this new phenomenon…a nation of free men, free to choose their own destiny…this catalyst that transformed a confederation of varied individuals with varied interests, skills and intellect living in separate states that zealously guarded their individual sovereignty into the greatest engine for progress and wealth generation the world had (or has) ever seen? The question answers itself.  It was the Constitution and the fidelity to it of the founding generation and the generations of American leaders who have followed.  It is the great balancing of limited and enumerated central government power, with the rights of the individual states that comprised the United States of America and, most importantly, the rights of individuals to live their lives largely free from governmental intrusions by either the state or federal governments..

This raises a question well worth pondering.  Should America expect its political leaders to embrace the aspirations of the founders?  After over 200 years with our form of governance the world is greatly changed.  Forms of transportation, communication and commerce between and among citizens, the several states and foreign nations which, while commonplace now, were non-existent in 1789.  Is it reasonable to expect that a governing document written back then could be relevant to such dramatic changes in the lives of the citizens of successive generations or to inventions which the founders could not have imagined?  We are not referring to nuance or style or even interpretation but rather to the hard, elementary, substance of individual freedom and liberty and a government whose bedrock-governing instrument constrains it from interfering with those basic liberties in the face of such sea changes in the lives of the people who are, today, governed by that venerable document.  Personal freedom and liberty, with specific guarantees against government interference is, after all, the bedrock of American exceptionalism and the defining characteristic of the American experience, but in the 21st century there are countervailing forces pushing not only for greater government regulation of our lives, but for a very substantial role for government to reallocate private wealth and property based on some nebulous concept of fairness.

Political leadership that is insensitive to this reality may be, we believe, at the root of so much of the dissension throughout the country today.  While we recognize that numerous issues divide the American body politic as they always have, we believe there is something much more fundamental antagonizing so much of the country today.  Contentious issues are nothing new or unique in America.  We have dealt with major issues about which the people often had strong and differing views throughout our history.  We believe, however, that we are dealing with something (or a confluence of something’s) that represents a growing concern for many, if not most, Americans.  A national healthcare program, which a substantial majority of the people do not want; a federal spending binge, which a substantial majority of the people do not condone; unprecedented deficits, of which a substantial number of the people are extremely wary; an emerging federal redistributive wealth philosophy about which many people feel a growing unease, and an unelected regulatory bureaucracy that seems to be expanding at warp speed to make rules which amount literally to an assignment of legislative powers to unelected officials, have all coalesced to confront the American electorate with a troubling question.  Is the fundamental transformation of America that candidate Obama promised and that President Obama certainly seems clearly to be delivering, a transformation that most Americans really want?  And does such a transformation square with the essential relationships of citizens with their government or even with the relationships between the branches of government envisioned by the founders?

This brings us full circle back to the question we posed in the headline to this essay.  Would President Obama have supported ratification of the Constitution of the United States had he been in that position?  We believe President Obama and many members of Congress would have voted “nay” and not because of the fears of the dissenters in 1789 that too much power was being assigned to a central authority, but, rather, because of the converse, e.g., not enough power was granted to the national government to regulate our lives.

Early in the president’s political career, when he was but a state senator from Illinois’ 13th district, and while he was still a lecturer in the law school at the University of Chicago, he agreed to be interviewed on Odyssey, a public affairs program on Chicago’s WBEZ radio station.  The interview, portions of which are quoted below, is especially illuminating.  Mr. Obama seems to lament the fact that neither the Constitution nor the courts evidence support for a federal policy of redistributing wealth.  That is, the courts have found nothing in the Constitution that provides for such government intrusion.  In fact, it wasn’t until 1913 and the passage of the Sixteenth Amendment to the Constitution that Congress even had the authority to tax income at all.  We believe the interview excerpted below, while a few years old, nonetheless, provides meaningful insight into the political philosophy of the president.

OBAMA:” If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples. So that I would now have the right to vote, I would now be able to sit at the lunch counter and order and as long as I could pay for it I’d be okay”… But,” Obama continued, “the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as people tried to characterize the Warren court, it wasn’t that radical.  It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it’s been interpreted, and the Warren court interpreted it in the same way…that generally the Constitution is a charter of negative liberties. It says what the states can’t do to you, it says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted. One of the… tragedies of the civil rights movement”, he said, “was because the civil rights movement became so court focused. I think that there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributed change (emphasis added) and in some ways we still suffer from that.”

In a subsequent interview Mr. Obama clearly expressed his opinion that once a certain level of income is achieved, that people then have enough (and presumably, thereafter, all of the balance should be taxed for redistribution or some other government purpose). And while that was Mr. Obama’s view, he did go on to say that it wasn’t the American way. Fair enough.  We’re sure there are many others who may feel the same way, but we’re equally sure that none of the drafters of the Constitution felt that way.  In fact, that was the very type of government power the founders were determined to avoid whether it be through the judicial or legislative branch of government.  We do not think the founders, any of them, would have condoned the appointment by future Presidents of a coterie of czars, all unconfirmed by the Congress, with broad, almost dictatorial powers, over entire swaths of the economic, social and business life of the new nation.  Certainly, they would have recoiled at empowering such overlords whose writings and public statements represented the very antithesis of what the founders had fought to create.

Had President Obama been a delegate voting on ratification of the Constitution, and had he held the same personal beliefs then that he expressed in the above-quoted interview, we believe he (and many others in today’s Congress) would have been in the opposition, and that he would not have found the Bill of Rights comprehensively responsive to his agenda for the new nation.  Moreover, many of those legislators who continue to pass legislation, the effect of which is to transfer wealth from the wealthy to the “underserved,” could not in good conscience have voted to ratify a document so clearly restrictive of such governmental power.

This is, of course, but speculation.  As we stated at the top of this essay, the founders anticipated that there would be need for change from time to time, and provided the means to affect such change. We also understand that dreams inform the thinking of leaders today just as dreams did 230 years ago.  We can only hope that the dreams that ultimately prevail in this generation mirror those dreams of the founders whose ideas made America the greatest engine for both liberty and prosperity in the history of humankind.  It would be folly to follow the illusory dreams so prevalent in those statist nations around the world whose policies are leading to out-of-control public debt, economic collapse, stagnation and will lead, ultimately, not to universal welfare, but, rather, to universal poverty and its all-too-frequent companion, repressive government.

By Hal Gershowitz and Stephen Porter


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Posted Jun 20th 2010 at 11:41 am in History, Justice/Legal, Obama, Politics | 144 Comments