Constitution Day: 232 Years of the Framers' Errors?

Every September 17, we celebrate Constitution Day, the anniversary of the signing of the Constitution by the delegates who were still in town, that fall day in 1787 following the Constitutional Convention.

Over the past century, however, there have been more and more complaints about it. We have been told that this clause or that was unfair, that this point was dated and this other point was misguided. All in the interest of numbing the populace, so people wouldn’t mind when the Constitution was violated.

After all, if a politician violates a sacred oath, that’s a sin against his constituents, but if the oath was misguided in the first place, then his constituents shouldn’t mind a bit. This has been the goal, ever so gently, over the generations: undermine the respect of the people for their Constitution, and elect politicians who will feel ever safer in breaking their oath to it.

One by one, clause by clause, we have been reminded of the document’s flaws. For example:

We have been told that this is the greatest of hypocrisies: our Founding Fathers claimed to believe that “All men are created equal,” and yet, they only viewed black slaves as being worth 60% of white freemen. Surely that is the greatest of indictments against the document, isn’t it?

Consider what the Framers were doing when they wrote that census clause: they were allocating representation for the new government.

It had been decided that we would have a bicameral legislature – the lawmaking powers would be split between two houses. The Senate would be weighted to give power to the locally elected state legislators, by assigning two senate seats to each state, regardless of the state’s size or population. And the House would be weighted to give power to individual citizens; the larger the population of a state, the more congressmen it would be allocated.

There was therefore no work to do in allocating the senate seats; each state got two. Merchant states and agricultural states, heavily populated states and sparsely populated states, slave states and free states.

In this context – for only THIS context is relevant – how should we count people, knowing that the count would directly decide how many representatives the state would have in Congress?

Indians were completely excluded because, at that time, the Indian tribes (now known as Native Americans) were separate nations, not part of our electorate. So, Indians weren’t counted at all. Nobody ever accused the Constitution of disrespecting Indians because of this; it was always understood that the reason behind it was their outsider status. Like the foreign diplomats attached to an embassy, they might be living here, but they aren’t part of this citizenry, and therefore aren’t part of this government. They can't vote for it, so they shouldn't be counted in determining the vote itself.

Similarly, the Framers had to consider what it would mean to count slaves in this context. Several states had an enormous slave population, and slaves could not vote.

- If we counted all those slaves as zero, we would be saying they were outside our nation like the Indians, which wouldn’t be fair because they didn’t have another nation to represent them… and it would give the pro-slavery faction a win in appearing to agree that slaves were not people. Counting them as zero was therefore not an option.

- On the other hand, if we did count those slaves in the census – as full citizens just like freemen – then that would be the most warped choice of all. We would be giving the slave states far more legislative power than they deserved – granting them many more seats in Congress – while denying the vote to the black slaves whose numbers got them those seats! To have counted our black slaves on an equal footing as freemen would have given the slave states an insurmountable majority in the House of Representatives. If we ever hoped to put an end to slavery, we could hardly do it by giving the slaveholders permanent control of the House of Representatives! Counting them as full persons for the purpose of the census was therefore not an option either.

So as we see, when viewed in context, to count them either as full persons or as non-persons would have done them an injustice. The Framers compromised on 3/5ths, on the theory that this acknowledges that they are indeed people, that they are indeed part of this country, but their non-voting numbers shouldn’t be used to greatly pad the power of their owners.

Clearly, the 3/5ths clause was in fact no error at all. It was a caring, philosophically thoughtful and politically practical compromise in the sight of a bad situation. It was designed to help the cause of emancipation as well as was achievable at the time. This wasn’t the only effort to free America’s slaves, but it does at least deserve to be respected as the good-faith effort that it truly was.

The Electoral College is constantly under assault as well. It is non-democratic, so they say, because it doesn’t allow for a pure popular vote majority to decide the presidency.

Well, that’s true, in a way, because the United was never MEANT to be democratic. Our nation is a republic – a country in which we are represented by elected officials, and power is distributed among multiple layers of government, in the hope that such divisions would retard the natural inclination toward tyranny of the political class.

Senators were to be selected by the state legislators. Judges and executive department heads were to be appointed by the President. Only the House of Representatives was to be directly elected by the public, and different states allocated suffrage differently, some setting property ownership requirements, some setting limits by sex or by age.

If no other seat should be selected by pure popular vote, why should the President?

In fact, the President was to be selected in a manner that split the difference between the Senate and the House. Every state has two senators, and every state has a number of congressmen appropriate to their population. The Electoral College gives both sets of numbers a vote. So a tiny state with only one congressman gets three votes in the Electoral College, and a huge state with ten congressmen gets twelve.

The system was designed to both respect the interests of those individual states – merchant or agricultural, large or small, coastal or frontier – and to respect the popular will. Like so many accomplishments in the Constitution, the Electoral College represents a compromise wherein everyone, in every state, can see that he was fairly treated and the result gives all views a fair shot.

With the Electoral College, presidential candidates theoretically dare not take any states for granted. They must campaign almost everywhere; they must consider the special interests of every state. It’s a brilliant move.

Most interestingly, however, with the Electoral College, our Framers implemented a protection against a problem that they could never have anticipated: the terrible scourge of modern vote fraud.

There is vote fraud in every state, but there are differences in degree. The nursing homes and homeless shelters that engage in ballot harvesting… the college students and adults with multiple homes who vote in the same election from each of their multiple addresses… the millions of illegal aliens and legal immigrants who are not yet citizens, but who are encouraged to vote anyway by their community leaders… the false, outdated, even deceased names on voter rolls used by corrupt party hacks in our big cities to inflate their perceived turnout and ensure the elections of local political machines.

When a city like Chicago, New York, Cleveland or Los Angeles can steal or manufacture 100,000 votes, enough to elect their local party slate, what’s to stop them from stealing or manufacturing another 100,000? Or another 200,000? Or another million?

In fact, in too many of America’s big cities, it is so easy to steal votes – through the New Orleans Method, the Acorn Method, the St Louis Method... there are so many different ways to be crooked – there would in fact be nothing to stop them from stealing even more than they do, except that it wouldn’t do them any good.

Once a machine can steal enough to win its city and its state, there is no point in stealing any more. Thanks to the Electoral College, once you have stolen your own state, there’s nothing more to accomplish. Even if you stole another million votes, you don’t get any more Electoral College delegates. Win the state, and you’re done, you’ve won all you can win.

But consider if we eliminated the Electoral College. Then every additional hundred thousand votes that Chicago steals could cancel out the legitimate votes of other states. If the big cities manufactured a couple million more fraudulent votes, no Republican could ever win another presidential election.

The Electoral College therefore serves to encapsulate vote fraud. It doesn’t have the bandwidth to stop it completely, but it does have the power to limit the damage.

As long as the Electoral College is in place, no matter how many millions of votes the Chicago machine creates, the most it can steal is Illinois. No matter how many millions of votes Los Angeles and San Francisco concoct, the most they can steal Is California. No matter how many millions are fabricated in Cleveland, the most they can steal is Ohio.

So there we have it: The Electoral College wasn’t a mistake either. It was, in fact, a marvelously designed bulwark against not only narrowly-focused government, but against modern vote fraud as well.

Ah, if ever there was an anachronism in any document, it’s the 18th century wording of the 2nd Amendment to the Constitution, right?

We are told that it was written to ensure that the government had a right to raise an army, and we are told that since weapons have changed, so too should the amendment.

But such a position belies a misunderstanding about the meaning of the amendment, the problems it was seeking to address, and the way our nation has changed in the centuries since. The Framers did not fail us; in fact, it is we who have failed the Framers.

First, let’s clarify what that first clause means. The sentence includes two words that meant different things in the 18th century than they do today:

The militia was not the military, but rather, was a term for the free citizenry. All freemen of age, really, but usually thought of as all males between mid-teens and old age. If you were a 40-year-old civilian, you might not join the military, but you are still part of the militia, by definition. You were expected to be armed, in case your neighborhood needed to take up arms to defend itself – against a gang of criminals, against a wild animal, against foreign invasion, or against a hostile government. If we weren’t foreigners, slaves, or Indians, we were part of the militia. And we needed to be ready when the need arose.

The other troublesome word is “regulated.” Today, we think that being “regulated” means being ruled by a bureaucracy, like Housing and Urban Development or the Bureau of Alcohol, Tobacco and Firearms, or by the Department of Education. But these agencies' sorts of regulations – the millions of pages of nanny-state rules published in the Federal Register every year – didn’t exist in the 18th century at all.

When President Washington arrived at Cambridge, Mass, to take command of the Continental Army in 1775, he was horrified at the sight of so many recruits who had never handled firearms before. The military didn’t have the ammunition or gunpowder to train them, so a substantial percentage of our army was unready for war.

When the need arises, you have neither time nor money to give training in these matters; you count on your force already being ready to go into battle.

In the judgment of the Framers, only if people grow up with arms would they be truly comfortable with them – knowing the rules of safe handling, knowing how to load and aim and fire, knowing how to clean and otherwise care for the weapon so that it would make it to the next battle, and the next, and the next.

So when our Framers said that a well-regulated militia was necessary for the security of a free state, they meant that all civilians need to be proficient in the use of arms, no matter whether they were in the city or the country, no matter whether they were hunters or target hobbyists or what. Everyone needs to be proficient in the use of arms.

We kid today that “when seconds count, the police are just minutes away.” Dark humor perhaps, but it is a true statement today, and it was just as true then, in those days without roads. When confronted by an enemy – whether it’s a corrupt politician or a bandit or a foreign agent – you don’t have time to wait for the sheriff to show up and help you. All law-abiding citizens should be armed, and should be experienced in the use of such arms.

But now we get to the big question, perhaps the greatest of all on the 2nd Amendment: Why didn’t the Founders consider how many bad people there are in the world, and recognize that free ownership of dangerous weapons would be, well, dangerous?

There are many answers to this, and whole books have been written on the subject, but it really all comes down to two simple points:

1: The Framers knew that the government has no right to deny a law abiding individual citizen the ability to defend himself and his family. The government does not, and must not, have that power, or it is a one-way ticket to tyranny. Our individual human right to self-defense outranks the government’s desire for order.

And 2: The Framers never imagined that we would be so stupid as to allow the society to be overrun by millions of known, violent offenders. Remember, at the time of the Founding, Americans were almost universally religious Judeo-Christians of Anglo-Saxon stock, primarily belonging to Protestant denominations. They went to church, they read their Bibles, and they valued traditional morality. They didn't deal drugs, drive rape vans or run city gangs.

The Founding generation had very few jails, because they had very few criminals… and because the few lawbreakers were likely to be caught, prosecuted, convicted, and executed, disposing of the threat.

In those days, these few violent offenders – armed robbers, rapists, murderers, etc. – were removed from society in the most permanent way possible: dead men don’t kill again.

What our Framers never dreamed of was an era in which we would intentionally welcome into the country millions of people from violent foreign lands, often visibly marked with gang symbols as if to confess to being killers, and even put such violent cretins on the fast track to citizenship.

And the Framers certainly never dreamed that we would have a whole political movement dedicated to “sentencing reform,” wherein we would throw open the doors of the prisons and set known criminals free.

The Framers believed that it was safe and wise to allow freemen to own weapons, in part because it’s morally right, but also in part because the people who have been proven untrustworthy with weapons would not be freemen. We would naturally not welcome such dangerous people into our country, and we would certainly never – upon identifying someone as guilty of a capital crime – dream of waiving the logical penalties of imprisonment or execution, and just let them go. Who could have expected this?

Clearly, the problem is not with the 2nd Amendment at all. 150 million law-abiding firearm owners own billions of weapons in this country today, for hunting, target shooting, and self defense. As the old saying goes, “if we were dangerous, you’d know it.”

The problem isn’t with the 2nd Amendment, and it isn’t with the Constitution as a whole. The problem is that we set criminals free. Known criminals. Proven, convicted criminals. We identify people who shouldn’t be trusted with a paring knife, let alone a firearm, and we set them free.

Our violence problem can indeed be solved, but not by tampering with the brilliant design that our Founding Fathers left us, so long ago. We just need to use the tools we have. There’s a border; enforce it. There’s a court system; prosecute the criminals. There’s capital punishment; purge the society of those who have proven that they cannot be trusted with the blessings of liberty.

If needed, a similar analysis could be written about every single clause in the Constitution. Our heroic Framers – those brilliant philosophers who wrote our Constitution during that hot Philadelphia summer of 1787 – thought through every clause and made the right calls for posterity.

When we see an apparent flaw in this glorious document, we need to check our premises. Most likely, the document is right, and it’s our current practice that’s wrong.

For 232 years and counting, we have enjoyed the benefits of that marvelous design, the solution to so many problems both then and now. Our Framers were farsighted indeed.

We should thank Divine Providence every day for the gift of those great men; they set our little frontier nation well on its way to becoming the world leader, the City on a Hill, that it is today.

John F. Di Leo is a Chicagoland-based Customs broker, trade compliance trainer, actor and writer. A former County Chairman of the Milwaukee County Republican Party, he has been a recovering politician for over 22 years now. His columns are regularly published in Illinois Review.

As an actor, John will soon be seen playing the role of Herr Winkelkopf in the Kirk Players production of the Oscar Wilde comedy, “Lord Arthur Savile’s Crime" in Mundelein, Illinois, the weekend of October 4-6, 2019 A.D.

I understand the point, but I really don’t think it was a problem in those days.

Most of the founding fathers held political office for 30 or 40 years. It didn’t make them liberal.

Look at Washington: He’d been a state legislator for 20 years when the revolution began. Most of them had been in office for at least 15 years, since all the older ones began their activism in or before the stamp act congress.

And age just made them more and more daring. Age and experience hardened the founding fathers.

There’s something different today, in that age and experience today seem to make politicians soften.

(title) :" Constitution Day: 232 Years of the Framers' Errors ? "

NO !,.. there were not errors; there was " cultural relativity " in that day.
In their time, in that mileau, they did what they thought was moral
and what needed to be done to get legislation passed by all the colonies.
They were a lot more moral than any politician today
and there is not any politician today that I would trust
with a Constitutional Convention.

To Tilted Irish Kilt:

I agree completely. They were not errors.

The modern insistence that so many elements of the Constitution are flaws is simply proof that they are not taught right today.

It is the most brilliant political document in history.

They did not originally intend to include a Bill of Rights. In the Federalist papers, the authors argued that binding posterity to particular rights was unjust, and that representation in Congress was the proper way to avoid encroaching on traditional liberties.

The Pennsylvania delegation made a lot of trouble about this, and wrote a long dissent with a series of proposed rights. Some of these were adopted in the Bill of Rights that was later passed. The Pennsylvania delegation’s much longer version of the 2nd Amendment sheds a lot of light on how it was intended.

In any case, the writers of the Constitution believed it would be frequently amended as times and circumstances changed. Perhaps they didn’t realize how difficult they were making it to amend the Constitution, with 2/3 of each chamber and 3/4 of the states. As it was, they had trouble getting enough states to ratify the Constitution right at the outset.

True, they didn’t mean to intend a bill of rights, but the reason is, I think, more logical than that.

You need a bill of rights if you have an otherwise unlimited government. That’s what the English spent centuries doing: wringing rights out of a monarchy that thought of itself as unlimited.

But if your government is specifically limited, then a bill of rights is actually illogical. Think about it: the constitution is a laundry list, specifically saying “government can do only these things, absolutely nothing else.” So if you add a list of rights, you’re saying “you’re not authorized to do these things, but if you want to exceed your authority in other ways, just don’t exceed your authority in these areas!” See, it makes no sense.

So I do believe that, logically, the Framers who opposed a bill of rights were correct. Philosophically speaking, the document was stronger without the bill of rights.

But then we come to reality. And in reality, if you don’t specifically say the words, and state right to the government’s face “You Cannot Take Our Guns!”... then the government will definitely take them.

So even though the bill of rights was a philosophically illogical addition, it has turned out historically to have been a necessary one.

***********

I shudder to think how long ago all our guns would have disappeared, and us right along with them, if not for the Second Amendment.

We should thank Divine Providence every day for the gift of those great men; they set our little frontier nation well on its way to becoming the world leader, the City on a Hill, that it is today.

We've been fortunate to live during peak civilization. Thanks to Divine Providence, the Founders, men and women of our armed forces, builders, inventors, businesses, the (not) forgotten man.

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