3) In the years after Independence, the framers’ delicate balancing act — between State and citizen, between rights and public goals, between legislatures and courts — has sometimes come under immense strain, but has survived more or less intact. In recent months, however, that balance is once again under stress, more so because of the Supreme Court. Critically analyse these recent instances involving the Supreme Court and their implications. (200 Words) The Hindu
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
When the American colonies broke from England, the Continental Congress asked Thomas Jefferson to write the Declaration of Independence. In the declaration, Jefferson expressed American grievances and explained why the colonists were breaking away. His words proclaimed America’s ideals of freedom and equality, which still resonate throughout the world. Yet at the time these words were written, more than 500,000 black Americans were slaves. Jefferson himself owned more than 100. Slaves accounted for about one-fifth of the population in the American colonies. Most of them lived in the Southern colonies, where slaves made up 40 percent of the population. Many colonists, even slave holders, hated slavery. Jefferson called it a “hideous blot” on America. George Washington, who owned hundreds of slaves, denounced it as “repugnant.” James Mason, a Virginia slave owner, condemned it as “evil.” But even though many of them decried it, Southern colonists relied on slavery. The Southern colonies were among the richest in America. Their cash crops of tobacco, indigo, and rice depended on slave labor. They weren’t going to give it up. The first U.S. national government began under the Articles of Confederation, adopted in 1781. This document said nothing about slavery. It left the power to regulate slavery, as well as most powers, to the individual states. After their experience with the British, the colonists distrusted a strong central government. The new national government consisted solely of a Congress in which each state had one vote. With little power to execute its laws or collect taxes, the new government proved ineffective. In May 1787, 55 delegates from 12 states met in Philadelphia. (Rhode Island refused to send a delegation.) Their goal was to revise the Articles of Confederation. Meeting in secret sessions, they quickly changed their goal. They would write a new Constitution. The outline of the new government was soon agreed to. It would have three branches — executive, judiciary, and a two-house legislature. A dispute arose over the legislative branch. States with large populations wanted representation in both houses of the legislature to be based on population. States with small populations wanted each state to have the same number of representatives, like under the Articles of Confederation. This argument carried on for two months. In the end, the delegates agreed to the “Great Compromise.” One branch, the House of Representatives, would be based on population. The other, the Senate, would have two members from each state. Part of this compromise included an issue that split the convention on North–South lines. The issue was: Should slaves count as part of the population? Under the proposed Constitution, population would ultimately determine three matters: (1) How many members each state would have in the House of Representatives. (2) How many electoral votes each state would have in presidential elections. (3) The amount each state would pay in direct taxes to the federal government.
Only the Southern states had large numbers of slaves. Counting them as part of the population would greatly increase the South’s political power, but it would also mean paying higher taxes. This was a price the Southern states were willing to pay. They argued in favor of counting slaves. Northern states disagreed. The delegates compromised. Each slave would count as three-fifths of a person. Following this compromise, another controversy erupted: What should be done about the slave trade, the importing of new slaves into the United States? Ten states had already outlawed it. Many delegates heatedly denounced it. But the three states that allowed it — Georgia and the two Carolinas — threatened to leave the convention if the trade were banned. A special committee worked out another compromise: Congress would have the power to ban the slave trade, but not until 1800. The convention voted to extend the date to 1808. A final major issue involving slavery confronted the delegates. Southern states wanted other states to return escaped slaves. The Articles of Confederation had not guaranteed this. But when Congress adopted the Northwest Ordinance, it a clause promising that slaves who escaped to the Northwest Territories would be returned to their owners. The delegates placed a similar fugitive slave clause in the Constitution. This was part of a deal with New England states. In exchange for the fugitive slave clause, the New England states got concessions on shipping and trade. These compromises on slavery had serious effects on the nation. The fugitive slave clause (enforced through legislation passed in 1793 and 1850) allowed escaped slaves to be chased into the North and caught. It also resulted in the illegal kidnapping and return to slavery of thousands of free blacks. The three-fifths compromise increased the South’s representation in Congress and the Electoral College. In 12 of the first 16 presidential elections, a Southern slave owner won. Extending the slave trade past 1800 brought many slaves to America. South Carolina alone imported 40,000 slaves between 1803 and 1808 (when Congress overwhelmingly voted to end the trade). So many slaves entered that slavery spilled into the Louisiana territory and took root. Northern states didn’t push too hard on slavery issues. Their main goal was to secure a new government. They feared antagonizing the South. Most of them saw slavery as a dying institution with no economic future. However, in five years the cotton gin would be invented, which made growing cotton on plantations immensely profitable, as well as slavery. The Declaration of Independence expressed lofty ideals of equality. The framers of the Constitution, intent on making a new government, left important questions of equality and fairness to the future. It would be some time before the great republic that they founded would approach the ideals expressed in the Declaration of Independence. For Discussion and Writing
For Further Reading Horton, James Oliver. Slavery and the Making of America. New York: Oxford University Press. 2005. Davis, David Brion. Inhuman Bondage: The Rise and Fall of Slavery in the New World. New York: Oxford University Press. 2006. Berlin, Ira. Many Thousands Gone: The First Two Centuries of Slavery in North America. Cambridge: Harvard College. 1998. Return to Black History Month Home Page
One of the first steps in dealing with a problem is understanding it. It looks like we have (at least) several major problems in the United States today:
These crises have different causes, but our inability to mitigate them--or, in many ways, even to try--is fundamentally the result of one central problem--a failed constitutional system that has left the United States unable to respond to national challenges and unable even to defend democracy itself against an existential internal threat. The Constitution’s failure to do what we reasonably expect it to do helps explain our inability to address the crises listed above. The framers created the Constitution when the government described by the Articles of Confederation proved too weak to make the country work (one of the central concerns on their mind was the national government’s inability to suppress an insurrection in the winter of 1786, a concern all too relevant this week). In its original form, the Constitution did not fully provide for what is now called a liberal democracy--a system with free and fair elections, individual rights, limits on the power of the majority as well as government officials, and the rule of law. Over the past 233 years, a modern liberal democracy ultimately, though painfully, emerged--based both on the verbal promises now contained in an amended Constitution as well as informal norms. The constitutional system also evolved to provide the government with authority needed to address new challenges. As Supreme Court Justice Robert H. Jackson wrote in 1952, the Constitution “contemplates that practice will integrate the dispersed powers [of the federal government] into a workable government”--a government with the power necessary to fulfill its assigned responsibilities. Our system depends on a delicate balance--a government strong enough to capably respond to pressing national problems, yet not so unchecked that officeholders are able to shrug off limits on power and rule as authoritarians. A government too weak to carry out its responsibilities (like the government under the failed Articles of Confederation) is a failed government. A government with a president who rejects the notion of limits on his or her power is also a failed government. At the moment, we are experiencing both kinds of failures. One example of the first kind of failure--a government incapable of performing its duties--is the response to the pandemic. Vaccines are, thankfully (though somewhat haphazardly) being rolled out--but in the meantime, we collectively accept record-setting death tolls unmatched in other countries. No one could magically make the virus disappear, but President Trump has decided he will not even try. When it comes to the pandemic, we are effectively operating with the functional equivalent of no president. As Maryland Gov. Larry Hogan put it, “in the worst part of the battle, the general was missing in action”. In a functioning system, members of Congress would use available constitutional tools to force a change in course. In our failed system, that won’t happen--no matter how high the death toll rises. The failure even to try when it comes to central aspects of the pandemic is a failure of weakness--what Kim Lane Scheppele and David Pozen call “executive underreach”. Trump’s reaction to the election is one example from the flip side of the coin--dramatic overreach aimed at illegitimately overturning the results. Last month, there were reports that Trump asked advisers about the possibility of “impos[ing] and deploy[ing] the military to “rerun” the election.” In a clear indication that there were real concerns about what could happen, all 10 living former defense secretaries signed on to an extraordinary op-ed calling on current Department of Defense officials to “refrain from any political actions that undermine the results of the election…” As political scientist Brendan Nyhan pointed out, “the fact that a coup is being considered and the President is not being immediately impeached and removed from office is a sign of profound democratic erosion.” It is clear that Trump will desperately try all he can to hang on to power. Last week, we learned that the president pressured Georgia’s secretary of state to reverse his electoral defeat in that state. Trump’s brazen efforts to overturn the results of a free and fair election were caught in an audio recording. A few days later, many Americans watched in horror on live television as Trump supporters breached security, occupied the Capitol, and forced members of Congress to abandon the formal process of recognizing Joe Biden’s election victory, seeking cover from an angry mob incited by the president. Former Attorney General William Barr put into words what was obvious: Trump had “orchestrat[ed] a mob to pressure Congress” in a “betrayal of his office”. Sen. Mitt Romney (R-UT) put it even more bluntly, declaring that “what happened [at the Capitol] was an insurrection, incited by the President of the United States”. In a functioning system, Republicans would have joined with Democrats to immediately remove Trump from office. In our failed system, although some legislators circulated articles of impeachment the day after the assault on the Capitol, there is little indication that Congress will take the prompt action necessary to protect the nation; in fact, the House and Senate are out of session for more than ten days. Speaker of the House Nancy Pelosi has called on Vice President Mike Pence and the cabinet to invoke the 25th Amendment; if not, she says the House will begin impeachment proceedings. It is unclear whether Republicans would join Democrats, and whether senators would even be available to act, given that many may have already left the capital city. If there is not prompt action the rest of us will be left to keep our fingers crossed and hope there is no repeat of the January 6 uprising in the nearly two weeks days left until Biden’s inauguration. Recognizing that our Constitution has failed is not to say that all hope is lost. Some important safeguards--the courts, state and local officials, the military--have held up. But this offers only a temporary reprieve from the dangers of both disabling gridlock that leaves government unable to take on national problems and authoritarian overreach that seeks to put an end to constitutional democracy itself. No system can guarantee its survival, but if the Constitution has failed, we can think creatively about how to increase the odds in favor of liberal democracy. We need a constitution that is both more liberal, with more effective limits on power as well as improved safeguards against corrupt (or even insurrectionist) government officials and more democratic, with a majority of votes required to win presidential elections and gain control of both chambers of Congress. When the Articles of Confederation failed, the framers started over with a new constitution. Something similar is needed today, although at the moment, the prospect of drafting a new constitution is wildly implausible. It’s past time, however, to consider the cost of inaction. If we do nothing, these pathologies will persist. We need creative thinking to find a solution to the problem of our Constitution’s failure. Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. He has written two books on presidential power. Follow him @ChrisEdelson on Twitter. Executive Power, Separation of Powers and Federalism |
What was the delicate problem for the Framers?
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