Making of The American Constitution

Not the Words, But the Process Of Its Creation

Bobby Kennedy  said, “Let us not suppose we can freeze society in the present or into a generation ago.”  No statement could be stated more succinctly to show the absurdity of those who proclaim the words of the constitution must be interpreted exactly as they would have interpreted them in the summer of 1787.  The first ones who would deny that interpretation would have been any of those who signed the document.  As it stood, as many have pointed out long before me, as a document it was extremely flawed.  But not only contemporary Americans have pointed out its flaws, those who signed it thought it was quite flawed.  So how can we interpret the founders’ intent if we don’t first recognize they themselves thought of it as a workable blueprint but under no circumstances did they view it as in any way sacrosanct.  

The greatness of what the signers felt they had achieved is no better expressed than in Madison 10 of the Federalist Papers.  From my perspective that document is much more sacrosanct than the constitution itself.  But the process of creating that flawed document was the process that no “civilized” community had ever been able to master.  Or has been able to do since to any real degree.  It was a process used by the Melanesians, by many of what we know as the Sioux, by the Iroquois, and probably by Khan and Shaka in their inner councils.  As Matt Osborne often points out it is the process of a successful military campaign.  

And as substack columnist Fay Reid often points out, it is a process that we should continue to be following, that the constitution should enable a lot more participation by citizens than it has ever been permitted by its elected legislators to do.

Twelve states sent delegates but not all remained.  Rhode Island never participated, New York had pulled out, But Hamilton had wandered back on his own, leading to Washington’s declaration upon the completion of its signing, “Ten states and Alexander Hamilton have signed.”  There was no way to begin to fashion a perfect document between so many diverse personalities representing very divided interests.  Not just the interest of slave and free state (and only four northern states actually had already outlawed slavery, five if you count non-participant Rhode Island).  Even defining slave and free at the time was difficult, but what would become “free” were six and “slave” five.  And then there was Delaware.  Slave or free?  Always quite questionable since the slave owners within the state could be counted on a man’s digits plus 1 but never actually eliminated the practice until the 13th amendment (the Proclamation did not free slaves except in the states rebelling) because of the slave owner’s oversized wealth that granted them oversized prestige.  But at the convention Delaware didn’t get overly involved in the slave issue at all.  The biggest hurdle was between the three “big states” , the three intermediate sized states and the five small states that blocked almost every proposal in the beginning, until small state Georgia was persuaded to swing towards the big states to accomplish the first big breakthrough.  

Of course one of the first battles was over whether the delegations of each state counted as one vote or if each delegate could represent one vote.  If that had occurred there would be no constitution but it has created our dual sovereignty problem that continues to plague the nation to this day.  

All of the flaws that anyone might point out, the two senator issue, the electoral college,  and sometimes the role of the varying branches of government  that might sometimes clash, and the long moot ⅗ problem—they were necessary for an agreement to be reached.  As I mentioned some delegates simply left, some left and returned and all of the states didn’t actually sign, Hamilton had no authority to sign for his state, but signed on his own.  And three delegates of the remaining forty-two refused to sign even though their states did.   But for a smelting summer in pre-air conditioned days in a poorly ventilated room with the windows closed to prevent their debates from being overheard, these men participated in a democratic process that the classical Athenians or Romans in their republican days had never achieved.  They debated, they argued, they compromised and they redebated and recompromised until a consensus of 39 of 42 finally believed they had a workable blueprint to present to their states to join into a “more perfect union”.  (Note: more perfect, not perfect, but more perfect than previously existed).

This was democracy because it was an airing of grievances and debating until a consensus could be achieved.  A consensus does not mean all, but it means substantially more than a majority. It means agreement by enough that a plan can go forward.  And with such diverse interests, diverse goals, diverse purposes and diverse geographies–that was a remarkable feat that had never been achieved.  What the delegates returned home with satisfied none of all of any of their ideologies.  No one person’s proposals had been accepted unadulterated, but what they all felt that they had achieved was an acceptable plan that could unite the states together and that what they had accomplished was not a document to be freezed in its moment of creation but a document that would by its very nature of granting no excessive authority to any one branch, that limited larger states from overpowering smaller states, of sublimating states just enough but not too much.  And that on the morrow, when it would all begin to be the government of the land it would continue to function in a manner to create not national majorities, but national consensus.  

Unfortunately shortly afterwards it became apparent that as a governing authority from widely dispersed territories, led by representatives who did not see governance of consensus as quite as necessary (although it still was necessary for quite awhile).  But now power blocs began to form.  Blocs, by party lines, the more pro-business, pro-executive club and the and the more pro-individualistic club of agrarians and slaveowners.  The threat seen by slave owners to maintain a senatorial equality to preserve their own leisure.  Those who favored high tariffs and those who favored more trading opportunities; those who favored looser credit and less regulation and those who desired more; and the conflict between those who seldom got represented, the laborers in the industries, the small farmers, the mountain people mostly formerly indentured; between those looking towards the future and those looking to maintain the status quo or the past.  The government became a government about the majority powers of the political clubs rather than working towards a consensus.

Of course what the majority of the people whom the representatives were supposed to be representing was never of paramount importance.

And so can the consensus that was once achieved ever be achieved?  Can the blueprint of hope become a document to meet our moments as they come?.  I have hope, still hope, but little faith.  We have thrown upon the courts a degree of ignominy that denies the purpose of the constitutional framers in favor not of a continuing process towards meeting our contemporary needs in favor of institutionalizing bygone words that are vapidly riddled into returning us to a past that can only lead to the denigration of all democratic purpose and a populace at odds with its very process.

Should the process continue it must meet the age we live in.  Justice must move into the present and those who are in the field of adjudication who are frozen in time need to be sunsetted into the melting icebergs that can no longer freeze them.  In Dante’s hell, Satan was not standing in the midst of a fire throwing bolts of destruction upon the earth, but frozen in time crashing the environment into the frozen tyranny of sin caused by the inability to meet the contemporary.  It is not lost on me that Dante lived in a time when Italy was fragmented into city states dominated by overly powerful dukedoms trying to control the burgeoning blossoming in art and science.  To control the new and developing thought was to keep it under their patronage and away from the masses, and prevent its futurism from flowering into a movement against their own present status predicated on the controls of the past.

Democracy , if it is to remain, has  to realize Dewey’s foresight to give more authority to communities and less to legislatures; that it must become more diverse in its legislative administration not by electing more diverse representatives, but granting legislative authority to more communities.  By initiating more opportunities for people to design their own communities: to allow more local decisions on what pursuits they wish to achieve; for representatives to not march off to Washington isolated from those they represent, but to stay home within thousands of communities.  If people choose to remain in cities they need to be subdivided into much smaller legislative groups.  Representatives of the groups could meet online, or in person, if the need arose.  Thirty-nine men achieved a consensus that could never be achieved in even the smaller congress of its own day.  Government of the majority, no matter if it is a true government of the majority, is still, in Madison’s words, “a tyranny of the minority.”  Executive authority must be to maintain communities from encroaching upon each other and justice must always look to the moment, not to a past that can only create a chaos within the present.  Okay, someone might come up with a better design—but every individual must be a part of his own economic choices, and only legislating in smaller communities can  opportunity for individual participation in his community to achieve that community consensus and have that opportunity to give each individual his voice.

If this means black and white communities are no longer conjoined, as Elijah Mohammed envisioned, so be it.  Communities of smaller authorities give rise to leaders who give rather than take from their communities; and communities will see a need to need other communities, not to profit from and reduce to subjugation other communities but to trade and share for a price they determine the value to be.  

Well that’s my utopia.  But it will never be utopic because it will never be static both within the individual communities and because the communities and the justice it demands will need to zealously prevent the greedy personality that wants to rule it from achieving his goal.  If all men are created equal, then all men need an equal voice.  And those dissatisfied with the communities they live within can migrate…but justice must demand they don’t unbalance other communities along the way. 

https://www.oakparkusd.org/cms/lib/CA01000794/Centricity/Domain/317/Federalist%2010.pdf