The Good and the Bad in the U.S. Constitution

Saturday, September 17, is Constitution Day, a yearly “federal observance.” And posters in the local library announce: Constitution Week September 17~23. Across the country, many school children will be taught good things about the Constitution. But most won’t hear about its bad aspects.  

“Our original Constitution was both brilliant and highly flawed.” So spoke Harvard law professor Alan Jenkins in a Sept. 15, 2021, interview with Harvard Law Today. He continued,

It beautifully articulated the notion that government’s power flows from the people, and that government serves the people. But it was fundamentally flawed in preserving and propping up slavery, that ultimate form of inequality.

Jenkins also averred that the Constitution was faulty “for excluding women, non-white people, indigenous people, non-property owners, from the definition of ‘the people.’’’ But especially from “a racial justice standpoint it was highly flawed.”

That was the basic self-contradiction of the original Constitution, which to a significant degree was based on the ideas/philosophy of John Locke, as I pointed out in my 8/30 blog post.

Most conservative Americans see and emphasize only the “brilliant” facets of the Constitution. In 1955, the highly patriotic Daughters of the American Revolution (DAR) petitioned Congress to set aside September 17~23 annually to be dedicated for the observance of Constitution Week.

That resolution was adopted by the US Congress and signed into law in August 1956 by President Eisenhower. Then, Constitution Day was established in 2004, and this year marks the 235^th anniversary of the ratification of the Constitution on Sept. 17, 1787.

In a wide-ranging interview, Dr. Richard Land, a conservative Southern Baptist who is now the executive editor of The Christian Post, urged American Christians, regardless of their political persuasion, not to allow the Left to define how they see the United States.

“According to Land, the Left-leaning American media invented the hot-button phrase ‘Christian nationalism’ as a pejorative term that serves to undermine the fundamental relationship between Christians and this nation as defined in the U.S. Constitution.”

Yes, patriotic organizations such as the DAR and conservative evangelicals such as Land tend to see only the good aspects of the U.S. Constitution—and there certainly are such aspects that need to be seen and appreciated. But that is only one side of the picture.

Most “Left-leaning” USAmericans also see the “highly flawed” facets of the Constitution. That includes history professor and highly popular blogger Heather Cox Richardson.

“Right-leaning” people doubtlessly see her as Left-leaning, but she is a competent historian who deals with facts not ideological opinions. In my 8/30 blog post, I criticized her for calling the position of Locke and the drafters of the Constitution paradoxical rather than self-contradictory.

But to Richardson’s credit, she also uses the word contradiction in writing about the drafting of the first Constitution. For example, she begins the second chapter of her book How the South Won the Civil War with this assertion:

At the time of the Constitution’s [drafting] in 1787 it was not yet obvious that a contradiction lay at the heart of the nation's founding principles.

Richardson also concurs with Jenkins’s recognition of the “highly flawed” Constitution. She writes, “Without irony, Virginian James Madison crafted the constitution to guarantee that wealthy slaveholders would control the new government” (p. 21).

Although she does not mention maverick historian Howard Zinn, he wrote pointedly about that contradiction in his best-known book, A People’s History of the United States (1980). (Zinn, who died in 2010, was born in August 1922, and last month his centennial birthday was notably celebrated.)**

Zinn’s chapter on the Constitution is based partly on An Economic Interpretation of the Constitution of the United States, an influential and controversial 1913 book by the noted historian Charles Beard (1874~1948).

According to this website, Beard interpreted the Constitution “as a conservative bulwark against the encroaches of liberal democracy.” That is a “bad” aspect of the original Constitution that is not widely recognized.

But unfortunately, that aspect of the 1787 Constitution may be what the “originalists” on the SCOTUS want to restore now.

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** Zinn’s seminal 1980 book was revised and published for younger readers in 2007 under the title A Young People’s History of the United States. That book cannot be used in many U.S. public schools now, for it is too closely connected to the Right-wing’s opposition to Critical Race Theory and related matters. 
     See here for “Howard Zinn Centennial Week Events” and here for “Howard Zinn at 100: Remembering ‘the People’s Historian,’” an informative article posted by The Nation on August 24.

Self-Contradiction in the U.S. Constitution: The Influence of John Locke

Constitution Day, a U.S. “federal observance” (holiday) on September 17, was established in 2004. I am planning to post a blog article about that on Sept. 15, but this post provides background information and is largely about philosopher John Locke—with a little about “original sin.”   

John Locke was born in England on August 29, 1632, and died in 1704 at the age of 72. Although he never traveled to what more than 70 years after his death became the United States of America, he had considerable influence upon the new nation formed by rebellion against England.

Just last month, University of Chicago Press published America's Philosopher: John Locke in American Intellectual Life by historian Claire Rydell Arcenas.

Locke, who was born into a Puritan home, became the author of hundreds of essays, tracts, and letters, many of which opposed political tyranny and religious persecution. His philosophical, religious, and political thought bolstered the North American British colonists’ fight for freedom.

Although the framers of the United States Constitution, drafted in 1787, were influenced by many different persons, John Locke’s ideas were the most influential factor. (See this instructive website.)

In his seminal work “Second Treatise of Government” (1690), Locke put forward the concept that the power of government originates from the consent of the governed, writing,

Men being . . . by nature, all free, equal and independent, no one can be put out of this estate and subjected to the political power of another, without his own consent.

At the same time, however, Locke condoned slavery, denied women full inclusion in civil society, and, ultimately, excluded atheists and Catholics from his calls for toleration. To a large extent, his self-contradictory ideas were accepted by those who wrote and approved the U.S. Constitution.

Heather Cox Richardson introduces John Locke in “The Roots of Paradox,” the first chapter of her intriguing book How the South Won the Civil War (2020).*

In “Introduction,” Richardson states: “America began with a great paradox: the same men who came up with the radical idea of constructing a nation on the principle of equality also owned slaves, thought Indians were savages, and considered women inferior” (p. xv).

She asserts that the “self-evident” truths that Jefferson wrote about in the Declaration of Independence were “cribbed” from John Locke. Based on Locke’s Two Treatises on Government, Jefferson agreed with Locke’s Enlightenment idea of government as a social compact, saying that

the laws of nature and of nature’s God entitled the colonists to create a separate government equal to that of England (Richardson, p. 12).

But Locke, and Jefferson, also held the view that some people—particularly white, moneyed men—were superior to others, especially women as well as indigenous and enslaved people.

So in spite of my deep appreciation for Richardson, she is misleading on calling Locke’s/Jefferson’s position “the American paradox.”

A real paradox expresses truth in statements that just seem to be self-contradictory. However, the stance of Locke and Jefferson was, in reality, self-contradictory.

John Locke’s name also appears repeatedly in Mark Ellingsen’s thought-provoking book Blessed are the Cynical: How Original Sin Can Make America a Better Place (2003), mostly in his second chapter, “Augustinian Realism and the American Constitutional System.”**

Locke was one of the most influential of Enlightenment thinkers, and as Ellingsen points out, the “Enlightenment’s optimistic view of human nature seems embedded in both the Bill of Rights and the Declaration of Independence” (p. 56).

But along with their embracing that optimistic view, Ellingsen argues that “founding fathers” such as James Madison, Alexander Hamilton, and even Benjamin Franklin also maintained “Augustinian convictions,” that is, a view of the reality of “original sin” that can be traced back to Augustine.

The paradox of the Constitution is seen in this juxtaposition of the Enlightenment view and the Augustinian view of human nature.

There are many deficient ways that the doctrine of original sin has been explained, and some of Augustine’s basic assertions are problematic.

But I think Ellingsen’s ideas about original sin are correct and agree with his conclusion: “Vigilance about the low sides of human nature, a healthy cynicism, improves civic life.”

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* Richardson (b. 1962) is an outstanding historian/history professor who daily posts “Letters from an American.” Early every morning I read her latest “letter” and always find them very informative. Here is the link to her blogsite.

** Ellingsen (b. 1949), an Augustinian scholar with a Ph.D. from Yale, is an ordained Lutheran (ELCA) pastor and a church history professor at the Interdenominational Theological Seminary in Atlanta. This link should take you to my 2011 review of his book on Goodreads (scroll down). 

Will the U.S. Remain a Democracy?

Benjamin Franklin, a four-hour documentary directed and produced by Ken Burns, first aired on PBS early last month. This blog was inspired by Franklin’s words near the end of that highly informative film. 

The Constitutional Convention of 1787 opened its first session on May 25, exactly 235 years ago. The 55 delegates (from 12 of the 13 states in the new nation) chose George Washington to preside. Other notable delegates were James Madison, Alexander Hamilton, and Benjamin Franklin.

At 81, Franklin was the elder statesman at the Convention—and arguably the most influential.

When the time came to sign their drafted document, Franklin encouraged his fellow delegates to give the proposed Constitution their unanimous support, despite the fact that he himself did not approve of every aspect of the new plan of government.

Franklin concluded: “On the whole . . . I cannot help expressing a wish that every member of the Convention . . . would with me, on this occasion, doubt a little of his own infallibility, and to make manifest our unanimity, put his name to the instrument.”

“A Republic, if You Can Keep It”: these were the words spoken by Franklin as he was leaving the last session of the Constitutional Convention on September 17. It was in response to a question about the nature of the government in the new Constitution. 

The question was about whether the new country would be a monarchy or a republic. That is, would there be a king, or a government elected by eligible voters.

A republic is “a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law” (Merriam-Webster).

Preserving the U.S. government as a republic seems to be one thing current Republicans as well as Democrats agree on.

In September 2019, when House Speaker Pelosi (D-Calif.) announced the formal impeachment inquiry of Pres. Trump, she used the words of Franklin to back her arguments.

That same month, Supreme Court Justice Neil Gorsuch, a Trump nominee, issued a book titled A Republic, If You Can Keep It.

Can the U.S. be Kept a Democracy? This is the burning question for the U.S. now. There seems to be little threat to the U.S. remaining a republic. The Republican Party is in support of that—although some question whether there is full support by the most ardent Trumpists. But the matter of remaining a democracy is a more precarious matter.

The Democratic Party is certainly not opposed to the U.S. remaining a republic, but they firmly believe it should be a democratic republic.

It should be noted that “democracy” is not mentioned in the Declaration of Independence nor the Constitution. Accordingly, some present-day Republicans and rightwing “talking heads,” insist that the U.S. government is not and was not intended to be a democracy.

The Democrats, naturally, strongly disagree, as do most political science scholars. The title of a November 2020 article in The Atlantic is “‘America Is a Republic, Not a Democracy’ Is a Dangerous—And Wrong—Argument.” But that flawed argument has even been made by U.S. senators.  

In October 2020, Utah Senator Mike Lee (R) sent a series of tweets declaring that the United States is "not a democracy" and that "democracy isn't the objective; liberty, peace, and prosperity are.”*

Earlier this year, sociologists Phillip S. Gorski and Samuel L. Perry’s book The Flag and The Cross: White Christian Nationalism and the Threat to American Democracy was published. The authors refer to democracy as rule by “the people,” which also includes universal suffrage, human rights, and equality under the law (p. 114).

They declare, “As white Christians approach minority status, white Christian nationalists are starting to turn against American democracy.” They further assert that “white Christian nationalism has become a serious threat to American democracy, perhaps the most serious threat it now faces” (p. 8).

As a White Christian who is definitely not a nationalist, I urge you to join in the struggle to keep the U.S. a democracy—a federal government of, by, and for the people such as Pres. Lincoln envisioned in his Gettysburg Address delivered in November 1863.**

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* For example, on Oct. 7, 2020, Lee tweeted, “We’re not a democracy.” That brief statement was “liked” by 31,600 people and retweeted over 4,500 times.

** For more about this, see my June 20, 2016, blog post.

Happy 95th Birthday, Justice Stevens!

Today is the 95^th birthday of retired Supreme Court Justice John Paul Stevens, and I am writing in honor and appreciation of his long, fruitful life.

Stevens, who was born in Chicago in 1920, was nominated for the U.S. Supreme Court by President Ford in 1975. He served in that position for 35 years, retiring in 2010.

(It is interesting to note that when he was appointed to the Supreme Court, he was one of eight Protestants among the nine Justices. When he retired and was replaced by Elena Kagan, a Jew, there were no longer any Protestants on the Court.)

In spite of retiring at the age of 90, Justice Stevens has continued to be active. The picture on the left was taken last April 30 as he was testifying before the Senate Rules Committee on Capitol Hill.

It was also just last year that his new book, “Six Amendments: How and Why We Should Change the Constitution,” was published. While all six of Justice Stevens’s proposed amendments are significant, I am most interested in four of them.

Those four would do away with political gerrymandering, would make it possible for the U.S. Congress or states to limit the amount of money that could be spent in election campaigns, would do away with the death penalty, and would change the Second Amendment to read, “the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.

Since I wrote about the latter issue previously (here), I will not say more about that at this time.

With regard to the first issue mentioned above, gerrymandering, as you know, means manipulating boundaries of electoral districts so as to favor one party or group. Justice Stevens’s proposed amendment would address the seriously flawed boundary lines for U.S. representatives which have been drawn in many states across the nation.

The highly controversial 5-4 “Citizens United” decision of the Supreme Court in January 2010 was strongly criticized by Justice Stevens. He wrote a 90-page dissenting opinion, setting forth his unhappiness with the majority position.

It is not surprising, therefore, that one of the six amendments to the Constitution that he proposed in his 2014 book is about that decision.

In his talk to the Senate Committee last year Justice Stevens said, “While money is used to finance speech, money is not speech.” So Stevens’s proposed campaign finance amendment would essentially overturn Citizens United, allowing Congress to set “reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in elections.”

In 1976, the year following his appointment to the Supreme Court, Justice Stevens voted to uphold the death penalty. When he retired 34 years later, he said that decision was the main one he regretted.

In his 2014 book, he says that retribution is the only legitimate justification for preserving capital punishment—and he doesn’t think that is a good or sufficient reason.

So Justice Stevens now advocates amending the Eighth Amendment to include the words “such as the death penalty” as an example of “cruel and unusual punishment,” which is currently prohibited.

At the time of his retirement in 2010, J. Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty and a member of the Supreme Court Bar, wrote, “Justice Stevens has been a thoughtful, diligent jurist who has served the Court and this country admirably.”

The retired Justice has continued his meritorious public service by his book advocating significant Constitutional amendments.

Happy birthday, Justice Stevens—and thanks for all you have done!

Commemorating the Bill of Rights

December 15, 1791, is an important date in the history of this country. The first ten amendments to the U.S. Constitution were officially added on that day, exactly 220 years ago. Collectively, those ten amendments are known as the Bill of Rights.

Even though the Constitution, which was ratified in June 1788, is still hailed as a masterpiece, at the time of its adoption some people thought there was something lacking. Mainly, they believed that the Constitution did not contain adequate guarantees of the essential rights and liberties of individual citizens.

Last week U.S. Supreme Court Justice Stephen Breyer was in Kansas City, and I was able to hear his enjoyable talk at the public library. (Justice Breyer was appointed to the Supreme Court in 1994; I was surprised to learn that he and I were both born on 8/15/38.)

Justice Breyer was here partly to promote his new book Making Our Democracy Work: A Judge’s View (2010). Early in his book he explains how James Madison, who later became President, “pointed out that the Bill of Rights would protect individuals from abuse by a majority” (p. 6). Similarly, he begins the thirteenth chapter with these words:

“The Constitution expressly protects the liberty of individuals through the Bill of Rights.” He used the First Amendment as the first example of how that is so.

I find it rather ironic that some conservative Christians in this country complain about how their religious freedom is being stifled by the government—such as by not being able, for example, to have public displays of the Ten Commandments or Christmas creches.

Christianity is, of course, overwhelmingly the majority religion in this country. But as Madison pointed out, the Bill of Rights, beginning with the First Amendment, was put into place in order to protect the rights of minorities from abuse by the majority.

In the 1780s, Baptists were a minority group in Virginia, and some Baptist ministers were even imprisoned because of their unwillingness to abide by the religious beliefs and practices of the majority. Accordingly, John Leland, a Baptist pastor, put pressure on Madison to push for the adoption of the Bill of Rights.

There is a marker on “Constitution Highway,” five miles east of Orange, VA, commemorating the spot where in 1788, Leland and Madison, often called “the father of the American Constitution,” held a significant discussion which resulted in the ratification of the Constitution by Virginia, partly through  the support of the Baptists.

Keeping his part of the bargain, Madison, a member of Congress from Orange, presented the First Amendment to the Constitution, by which religious liberty, free speech, and the freedom of assembly are guaranteed. That is the kind of freedom, and constitutional protection, Leland and other Baptists greatly wanted.

Now the religious minorities in our country are people who believe in Buddhism, Islam, or other non-Christians religions. There is a sizable minority of atheists and non-religious people also. The Bill of Rights is important for protecting the religious freedom of those minorities.

As a Baptist, I have been proud of how Baptists in the past were advocates of religious freedom and were strong supporters of the Bill of Rights, especially the First Amendment. I think it is shameful how now that they are in the majority, some Baptists and other conservative Christians complain about the guarding of religious liberty for minority groups in American society today.

Beware of Constitutionolatry

The U.S. Constitution is a remarkable document. Ratified in 1788, it is reportedly the oldest national constitution in the world still in use. Perhaps many of you, as I did in my school days, memorized the praiseworthy Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

In the past two years, some political and religious conservatives have charged the President with not following or of disregarding the Constitution. Such criticism is stronger and more persistent than it has ever been—at least during my lifetime, and I was born when FDR was President.

Those who criticize the President so strongly place great emphasis on the “original intent” of the Constitution and the Founding Fathers. Last year Rush Limbaugh referred to the Constitution as “a gift of God,” and he was given the “Defender of the Constitution Award” at the Conservative Political Action Conference in 2009.

But it seems that the position of Limbaugh and others is close to constitutionolatry, that is, making an idol out of the Constitution. (I thought I was coining a new word, but then I found on the Internet that the term has been used before, although not often.) And those who extol the Constitution so highly are usually referring to the original document, drafted in 1787.

Within two years, though, the original Constitution was found to be insufficient, so the first ten amendments (the Bill of Rights) were proposed and then ratified in 1791. Still, there were some glaring deficiencies. For example, slavery was nowhere prohibited. It was only after the Civil War that slavery was outlawed by the thirteenth amendment, and then African-American men were given the right to vote with the fifteenth amendment in 1870. But still for decades women, white or black, did not have the right to vote.

My grandmother Laura (Neiger) Seat turned 21 (the legal voting age then) in 1902, but because she was a woman she did not have the right to vote in 1904, the year Theodore Roosevelt was re-elected President. My grandmother Laura (Hamilton) Cousins turned 21 in 1914, the year my mother was born, but she wasn’t allowed to vote in 1916, the year Woodrow Wilson was re-elected President, for the same reason: women did not yet have the constitutional right to vote. That situation did not change until the nineteenth amendment was finally ratified in 1920.

So, in praising the U, S, Constitution, which went into effect in 1787, let’s beware of constitutionolatry. Even though it was remarkable, there were, indeed, flaws in that beloved old document. And for this and other reasons we also need to beware of the “Tea Partiers” and other “Originalists” who idolize the Constitution and say they want back the policies of the Founding Fathers. (If you would like to read more about this matter, here is a link to an interesting article posted on the Internet yesterday.)