Recently I’ve noticed bumper stickers, mostly on pickup trucks, calling out a love for the Constitution.
What do I love about the Constitution?
Rural states with tiny populations automatically control the Senate.
The ten least populous states have a total population of 9.6 million. California, the most populous state, has 39.2 million people. These ten sparsely populated states, Wyoming, Vermont, Alaska, North Dakota, South Dakota, Delaware, Rhode Island, Montana, Maine, and New Hampshire, have 20 Senators. On average, each of these Senators represents 479,000 people. Meanwhile, California’s two Senators represent 19,600,000 people EACH. As if their dominance in voting power is not enough, the Senate has long had what is called the Cloture Rule that requires 60 Senators to vote affirmatively to end debate and bring an issue to an up or down vote. So, the 30 states with the lowest populations, 80 million people, can control government policy regardless of the effects on the other 253 million people.
Now immediately, people will rush forward with originalist arguments. Further, some will point out that the US has never been a democracy. It’s a republic! The Constitution is explicitly set up to prevent popular control. But, can we afford to continue to live with the results of bargains made over 230 years ago?? Do we really need to continue to be governed by the thinking of people who lived in a world so fundamentally different from ours?
Brevity is not all that it is knocked up to be
Much has always been made of the brevity of the US Constitution. India’s constitution weighs in at 135,000 words – novel length. The US Constitution is a mere 4,400 words. The Second Amendment is a marvel of concision. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” We’ve got militia, security, free state, the people, right to arms, and infringement all in one sentence. Any grade school teacher would send this back for some serious editing. What the hell does “a well regulated militia” refer to? Did they have automatic weapons back then?
Avoiding a word while striking a bargain
Clearly, the issue of slavery was an important matter for the framers to handle in the Constitution. Yet the words “slave” or “slavery” does not appear anywhere until the 13th Amendment in 1865.
From Article 1, Section 9, Clause 1:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
“…Importation of such Persons as any of the States now existing shall think proper to admit” – who could this be referring to??? Love the tax provision.
Then we have 13th Amendment.
Passed by Congress January 31, 1865. Ratified December 6, 1865.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Congress shall have power to enforce this article by appropriate legislation.
The Jim Crow South lept all over that “except” clause when they turned convictions for vagrancy and other misdemeanors into a system to supply convict labor to corporations all across the South.1
Just to be clear slavery was not limited to the South. As I’ve noted earlier, in Hudson, my little city in upstate New York, the first US census in 1790 showed that 12% of the population were enslaved. This translates into roughly 30% of households included an enslaved person.2
Three fifths of all other persons.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. – (underlining added)
Turns out that this game between the North and South about not mentioning slavery while specifying a method to equalize the populations started with the earlier failed document of governing the Americas, The Articles of Confederation. See Madison and Hamilton’s Federalist Papers No. 54 and 55 for some painful moral gymnastics concerning this fraction.
Declaring War – Article I, Section 8, Clause 11
The Congress shall have Power……To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
There have only been 5 wars declared by Congress: War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. Nevertheless, the Federal government carried out a nearly continuous state of warfare against the various indigenous peoples who persisted to live in territories that they had occupied for at least several thousand years. This only ended at the end of the 19th century.
We’ll skip forward to my lifetime in the post-WWII era. We used more munitions and bombs, achieving some great end in the Vietnam War, than were used in all theaters in WWII. This in a country barely larger than the states of Minnesota and Wisconsin combined. We maintain a vast array of more than 750 military bases on every continent except Antarctica manned by tens of thousands of soldiers. Our Navy lurks about everywhere. We spend more than the next five largest militaries in the world combined. Yet, not a single Declaration of War; just a series of “Resolutions” passed by Congress. The Vietnam War Gulf of Tonkin Resolution passed by Congress was based on an incident that never took place.
What about the US Constitution do you love or want to reread?
- see Douglas A Blackmon, Slavery by Another Name: The Re-Enslavement of Black People in America from the Civil War to World War II (New York: Doubleday, 2008).
- Slavery in Hudson – updated