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Constitutional Reflections

The current political season finds the nation more than usually attentive, owing in part to the clear party-based agendas of the leading candidates and, yes, also owing to their respective histories and personalities. By far, the weightier contribution to the drama is on the Republican side; in that, the clear favorite based on the votes of the citizens finds leaders in his own party frantic to find an eleventh hour alternative. “He’s not a conservative,” insist the most vocal of opponents in his own party. “What are his principles?” they ask. “Will he be faithful to the Constitution?”

I’m inclined to think that, in the face of such questions, the vast majority of prospective voters are less than clear as to the burden of the questions, even as the few scholars careful in their use of both terms and history regard the punditry’s explanations as either jejune or banal. A “conservative,” we are told, is for “free trade,” this then allegedly ruling out tariffs. As for “principles,” pundits would have a busy world accepting little more than a handful of policies as if these were principles—even self-evidently true principles! As for that oath that office holders take, swearing fidelity to the Constitution, it is not beside the point that major figures among the Founding generation had principled—as in principled—reservations about that constitution. These were overcome by compromise upon compromise.

The resulting document, richly amended, faced heavy weather during the ratification process and came close to failing completely. The point, of course, as that somewhere, between being so protean as to be a mere body of opinion and being regarded as God’s second Decalogue, the Constitution stands as the best one might expect of words that would guide a self-governing people. With this in mind, and taking Mr. Trump’s failings as seen by his intra-party adversaries, a brief reflection on both the remote and the recent past might be helpful. Who argued this extraordinary document into being? The fifty-five delegates to the Constitutional Convention of 1787 were drawn from an initial body of seventy, but a number declined for various reasons.

The final version was signed by only thirty-nine of the fifty-five. During the deliberations, some had to return home to attend to businesses and farms. All had to find their own lodgings and underwrite the costs associated with their mission. By occupation, thirty-five were lawyers, thirteen were businessmen and merchants, six were property speculators, a dozen operated slave-labor plantations, and eleven took their chances in the securities markets. The spirited debates and final drafts of the Constitution were not discernibly “legalistic.”

Indeed, it is unlikely that so great a work would be reduced to some 4,500 words by a room full of lawyers! For a number of the delegates, it was something of a surprise to discover that a binding Constitution was the objective all along, at least in the fertile mind of Madison and a few others. What of those “principles” unanimously embraced by “the Founders” as revealed in the Constitution? After all, it is only through strict adherence to these principles that “conservativism” is identified. And, for illustrative purposes, we need go no further than the legacy of President Reagan. So, it’s back to square one: All credible defenders of constitutionalism must affirm “free trade,” (therefore) oppose tariffs, stand tall against overreach by the Executive branch and make sure that Supreme Court nominees are drawn from strict constructionists.

Any departure from these strictures establishes one as a “liberal” or—worse—a “populist.” Alas, this reigning orthodoxy is embarrassed by history. The first substantive Bill signed into law by President Washington was a protective tariff. Under the guidance of Hamilton, this was followed by dozens of comparable Bills judged as essential to domestic economic survival. The overall effect was extraordinarily successful. As for President Reagan, he imposed a 100% tariff on Japanese electronic imports to the U.S., lest our entire computer-electronics industry collapse. He also exerted full presidential pressure on Japan to reduce the automobile exports to the U.S. Furthermore, as the New York Times reported on April 2, 1983:
WASHINGTON, April 1— In an unusually strong protectionist action, President Reagan today ordered a tenfold increase in tariffs for imported heavyweight motorycles. The impact of Mr. Reagan's action, which followed the unanimous recommendation of his trade advisers, is effectively limited to Japanese manufacturers, which dominate every sector of the American motorcycle market.”

What about Smoot-Hawley which authorized tariffs and thereby deepened and prolonged the Great Depression? Not quite. Alfred E. Eckes, who was President Reagan’s appointee to the International Trade Commission, argued at book length that Smoot-Hawley had little effect on the severity of the Great Depression. Dartmouth economist, Douglas A. Irwin, in The Review of Economics and Statistics, concluded that "Smoot-Hawley... probably did not contribute significantly to the economic downturn." The main point here is not to enter into the weeds and thickets of Economics but to acknowledge that there are good and bad tariffs, optional and necessary ones, and little sure footing in attempts to predict their near and distant effects. Absolute rejection of the very idea of tariffs is less a moral principle than a mental disorder. Hopping back to the 18th Century, which celebrated clarity of thought over doctrinaire shibboleths, we begin with the grand claim that we in the U.S. are blessed to live under the rule of law, not of men.

But then, what is the source of the law’s authority if not the consent of those men (aka “persons") prepared to adhere to its dictates? If the noble assembly of 1787 had proposed that the most significant and even intimate details of civic life would be determined by five (now nine) unelected judges, the entire project would have been laughed out of the hall! Accordingly, to declare (shout?) in behalf of “the Constitution” is to reconsider the sources of its authority and of those appointed to interpret it. The source? The Constitution identifies the source as WE, THE PEOPLE OF THE UNITED STATES. But what is the source of that authority claimed by the people? For this, we must turn to the Preamble of the Declaration: When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. ”We hold these truths to be self-evident, that all men are created equal." Is the source finally a species of dread “populism?”

This is a seminar question, readily fashioned into a tar brush. “Populism” is redolent of William Jennings Bryan and his war on the moneyed “elite.” The earliest beneficiary of his reforms was to be an agricultural world that Jefferson himself prized. Moreover, had the Founders been concerned chiefly with gaining or preserving their “elite” status, prudence alone would have made them monarchists. On the contrary, the foundational “self-evident” truth of the Declaration proclaimed universal equality—an equality grounded in universal needs, desires, interests, hopes and goals. The appeal was to our humanity, not our status. “Populism?" What’s in a name? The Declaration is THE founding document, absent which the Constitution would be an interesting but impracticable scheme of governance lacking necessary presuppositions. The Declaration immortalized its author and shaped the institutions and national character of legions otherwise unaware of its reach.

Initially, the assignment was offered to Richard Henry Lee. His Resolution of Independence was adopted by the Second Continental Congress. The Resolution was clear and to the point: Resolved, That these United Colonies are, and of right to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved. That it is expedient forthwith to take the most effectual measures for forming foreign Alliances. That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation. Next, John Adams was proposed for the task. He rejected it in favor of Jefferson, explaining himself in a letter to Thomas Pickering: Jefferson proposed to me to make the draft. I said, 'I will not,' 'You should do it.' 'Oh! no.' 'Why will you not? You ought to do it.' 'I will not.' 'Why?' 'Reasons enough.' 'What can be your reasons?' 'Reason first, you are a Virginian, and a Virginian ought to appear at the head of this business.

Reason second, I am obnoxious, suspected, and unpopular. You are very much otherwise. Reason third, you can write ten times better than I can.' 'Well,' said Jefferson, 'if you are decided, I will do as well as I can.' 'Very well. When you have drawn it up, we will have a meeting.” Jefferson did, indeed, “draw it up,” over a period of three weeks. Amendments were plentiful, compromises made as needed, line by line. The final version adopted by the Continental Congress acknowledges the duty to explain to the wider world the REASONS on which independence is justified. We might read the Declaration as if it is the chorus in an ancient Greek dramatical work, focusing the attention of the audience on the meaning and implications arising from the actions at stage-center.

Thus the Constitution: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, 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. We the people: All equal in the right to self-governance, all recognizing liberty as a blessing to be preserved and bequeathed. Securing of domestic tranquility? A sleeping pill? Scarcely. Domestic tranquility is achieved in the civic domain to the extent that the terms of governance reach the core of one’s civic life.

In this respect, the Constitution is again a very lengthy and detailed footnote to the Declaration of Independence. We do not live as a captive body of lucky people whose freedom happens to be the gift of a particular form of government. We live as an active and self-directing group of individual persons willing and able to remake whole governments if our own core values hang in the balance. Politicians and courts indifferent or hostile to this fact of an “American’s” nature might now prudently look to other careers. As we would not live in the thrall of kings, so we will not be hostage to a slogan.