I am continually awed that the Founding Fathers had the kind of foresight to create the structure which would protect future generations from tyranny and create the world’s longest running democracy. On this Independence Day, it is appropriate to reflect on the basic precepts of this amazing feat.
I know that we are technically a representative republic rather than a true democracy, but that is part of the point. The Fathers recognized that they not only had to defend against governmental tyranny but simultaneously protect against the “tyranny of the majority.” It is no small task to tread the line between autocratic rule and mob rule.
In a true democracy, the majority rules. The End.
On the surface, the “majority rules” sounds fair, right? However, the “Tyranny of the Majority” means not only that the majority rules, but that the minority has no rights.
In order to deal with governmental tyranny the Fathers established the basic tenet of Limited Government in which government functions and powers are prescribed, limited, and restricted by law. The U.S. Constitution provides the means of limited government whereby the rights of the people shall not be infringed upon by the government except where expressly granted.
Some people get confused because the Constitution enumerates some inalienable rights upon which the government may not infringe (the right of free speech, the right to bear arms, etc.) This does not mean that the government’s rights extend to anything not specifically listed. It means that these rights of the citizens are in bold – above all and so important as to not to be f—, fooled with.
The government only has rights specifically granted to it by the people through their representatives in the creation of laws. It does not mean that these representatives are authorized to give away the enumerated inalienable rights.
Separation of Powers
The key to the U.S. form of government is balance. The pendulum of power swings back and forth, more or less peacefully. Everyone is pissed off half of the time.
“The Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as Checks and Balances. “https://www.usconstitution.net/consttop_sepp.html
In order to prevent mob rule, the Fathers enshrined the basic precept of Separation of Powers. “The Constitution is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.” https://www.supremecourt.gov/about/constitutional.aspx
The Legislative Branch
The duty of the legislative branch is to make the laws of the nation.
The Executive Branch
The duty of the executive branch is to endorse the laws of the United States.
The President has several constitutional duties aside from the general “enforce the laws” duty. These are:
- To be Commander in Chief of the military
- To conduct foreign affairs
- To negotiate treaties with other nations
- To nominate members of the cabinet, judiciary, etc.
- To review and sign or veto bills
- To administer the laws of the nation
- To issue pardons as he sees fit
- To address the Congress from time to time to assess the state of the nation
The Judiciary Branch
The duty of the judiciary branch is to determine whether laws (enacted by the legislature) conform to the Constitution or not.
Checks and balances. The President can’t make laws. The legislature cannot enforce laws. The Supreme Court can’t make laws or enforce them. It is the referee in case of dispute. Simple, right?
Apparently, not so much. People being people are always trying to increase their influence. Sometimes they are right and well meaning; sometimes they are corrupt or being used. I am not going to try to address the executive and legislative branches. These are pure politicians rutting around for power, money and influence beyond my comprehension.
But the Supreme Court? These are the guardians, the high priests and priestesses of justice, pure and chaste and most importantly, above all political influence. Surely, priests would not try to diddle the Constitution!
You and I were not around in 1776, but we can read the constitution and its amendments. We might not understand every “insomuchas” and “wherewithall”, but it wasn’t written in Aramaic or some other language which doesn’t have a direct translation into English. Even if we don’t understand some term from 1776, there are plenty of sources to determine what that term meant at the time and what the intent was. It seems completely unnecessary that there should even be a term for this, but there is. People who believe that the founders meant the Constitution to mean what they meant are called “Originalists”.
I suppose that “Up” meant something a little different to people before Neil Armstrong set his Crocs on the moon, but I don’t think it meant “down” or “parallel”. They didn’t have the internet, but I bet there were fake town criers.
I was dumbfounded to learn that there is not only a different way to evaluate the Constitution other than what it means, but there are apparently at least eight, although I have not checked Google for updates today. I guess it depends on what the definition of is, is.
I’ll give you a link to Modes of Constitution Interpretation if you want to explore, but for our purposes, I will just group everything not meaning what the Constitution means under “judicial activism”.
Don’t get me wrong. I think “Moral Reasoning” and “Pragmatism” are great stand alone concepts. I don’t even mind if they influence borderline decisions. But let’s put them in context.
Assume for a second that our Justices of the Supreme Court (JC), the referees of the Constitution, are now referees in the National Basketball Association(JABA).
The constitution of the NBA describes what is a foul (against the law), and what is the sentence for violation(1 free throw, 2 free throws, etc.) Towards the end of the game a player on the losing team fouls intentionally. This stops the clock and gives the team that is ahead 1 free throw in the hope that the foulee will (a) miss the free throw, or (b) make it but only get one point and the fouler’s team will speed down the court, make a 3 pointer and win the game with free sex and drugs for all.
The Originalist referee says, “the rule says, one foul, one shot.” The game goes on, and on, and on. This is annoying, but their job is to interpret the law.
The Activist referee says, “FOUL”! “The founding fathers of the NBA Constitution could not have anticipated that players would foul intentionally, prolong the last two minutes of the game for nine hours and unfairly deprive the team that played winning ball for 58 minutes their justly deserved deserts.” So, they award the foulee 3 free throws, a dunk and a cheerleader to be use later as punitive damages.
I am okay if the referees get together and recommend 6 free throws and pantsing someone for an intentional foul to the rules committee. It would be pragmatic to shorten the game and create justice for the team that led the whole game. I am not okay with the referees changing the rules at half time.
This Independence Day with another contentious Supreme Court judicial appointment looming, let’s remember the founding precepts that have made America great and sustained U.S. for almost two and a half centuries.
Limited Government: We the People have the power. Let’s not waste it.
Balance: It is tempting to support an executive action or activist court decision that advances something we favor. But what goes around comes around. If we short sightedly circumvent the separation of powers to get what we want today, that circumvention may be our undoing tomorrow.
Here is my wrap up. The United States has poverty. But our poor are better off than the poor anywhere in the world. We have injustice. But we don’t have boat loads, carloads and individual medleyists trying escape our borders for more justice.
I didn’t check this out, but I don’t think there were Democrats or Republicans in 1776. I don’t imagine the founding fathers contemplated today’s versions of conservatives and liberals. The Constitution says what it says and has served us well for over 200 years. Let’s serve it as well and as long.