The Rightwing Supreme Court Is Wrong: The Original Intent of the Constitution Was Progressive
The original intent of the U.S. Constitution can most accurately be determined upon the basis of the debates that occurred at the Constitutional Convention that (after preliminaries during the Convention’s opening days of 25-28 May 1787) started on 29 May 1787, and ended nearly four months later, on September 17th of 1787. James Madison transcribed those epoch-making, nation-forming, debates.
These debates began with some members of the Convention, especially Misters Randolph of Virginia, Gerry of Massachusetts, Butler of South Carolina, and Dickenson of Delaware, simply assuming that the existing Articles of Confederation would be improved, not replaced; i.e., that no new and single nation of the United States of America would result from their collective deliberations.
The American Revolutionary war of 1775-83 was at that time a mere four years past, and this Convention had been called together for the purpose of replacing the failed existing Articles of Confederation, by some Constitution that would improve upon that existing governing document.
"The U.S. Constitution ... was truly a revolutionary, progressive, document. Anyone who considers it to be 'conservative' has no knowledge of history, or else is lying, because it’s the exact opposite of that: it’s radically progressive. It’s a truly revolutionary document."
On May 29th, Mr. Randolph started these historic debates, when he listed what he viewed to be the defects in the existing document, and when he then placed before the Convention his “Virginia Plan,” to rectify those perceived deficiencies. Randolph said, “Our chief danger arises from the democratic parts of our [existing state] constitutions.” He proposed that what was needed “is yet a stronger barrier against democracy, but they [those existing state models for a constitution] all seem insufficient.” He proposed “republican Principles,” a key one of which was that “the Rights of Suffrage [the right to vote] shall be ascertained by the Quantum of Property or Number of Souls”; in other words, by considering each “soul,” while also granting a higher say to the wealthy than to the poor. He proposed a House “elected by the People,” and called “this the democratick Branch”; and he also proposed a Senate or “2d. Branch to be elected out of the first — to continue for a certain Length of Time, etc. To be elected by Electors appointed for that Purpose,” instead of “by the People.”
In other words: the issue of the right to vote -- the “franchise,” or “suffrage”; who would ultimately rule, or hold power -- was what opened these debates. And the tension there was immediately between the aristocracy versus the public, or power based in amounts of property, versus power based in amounts of persons. Which would rule here: count the dollars, or count the persons (the owners of property, regardless of how rich or poor they may happen to be)? Which would be determining the control of the coming American government?
On May 31st, Mr. Gerry rose, and he stated, “The evils we experience flow from the excess of democracy. The people do not want virtue; but are the dupes of pretended patriots.” Then rose Mr. Mason [of Virginia], who “argued strongly for an election of the larger branch by the people. It was to be the grand depository of the democratic principle of the Govt. It was, so to speak, to be our House of Commons — It ought to know [and] sympathise with every part of the community. ... He admitted that we had been too democratic but was afraid we sd. [should] incautiously run into the opposite extreme. We ought to attend to the rights of every class of the people.” Then rose Pennsylvania’s “Mr. Wilson [who] contended strenuously for drawing the most numerous branch of the Legislature immediately from the people. He was for raising the federal pyramid to a considerable altitude, and for that reason wished to give it as broad a basis as possible. No government could long subsist without the confidence of the people.” Then, supporting Wilson, rose Mr. Madison himself, who “considered the popular election of one branch of the national Legislature as essential to every plan of free Government.” But, against that view, were, first, “Mr. Gerry did not like the election by the people.” And, next, “Mr. Butler [of South Carolina] thought an election by the people an impracticable mode.” And, next, came Randolph again: “He observed that the general object was to provide a cure for the evils under which the U. S. laboured; that in tracing these evils to their origin every man had found it in the turbulence and follies of democracy: that some check therefore was to be sought for agst. [against] this tendency of our Governments: and that a good Senate seemed most likely to answer the purpose.”
This issue was taken up, again, on June 4th, when Mason said: “Do gentlemen mean to pave the way to hereditary Monarchy? Do they flatter themselves that the people will ever consent to such an innovation? If they do I venture to tell them, they are mistaken. The people never will consent. And do gentlemen consider the danger of delay, and the still greater danger of a rejection not for a moment but forever, of the plan [ultimately our Constitution] which shall be proposed to them? Notwithstanding the oppressions [and] injustice experienced among us from democracy; the genius of the people is in favor of it, and the genius of the people must be consulted. He could not but consider the federal system as in effect dissolved by the appointment of this Convention to devise a better one. And do gentlemen look forward to the dangerous interval between the extinction of an old, and the establishment of a new Governmt., and to the scenes of confusion which may ensue? He hoped that nothing like a monarchy would ever be attempted in this Country.”
The proponents of aristocracy were implicitly being understood here to be supporters of the hereditary principle itself, by which dynasties and kingships had always been philosophically defended, up to that time. Madison was now set to carry forward Mason’s identification of aristocracy with monarchy, when monarchy was the very thing that the Revolutionary War had been intended to overthrow and eliminate, and now to replace, on these shores.
This issue was taken up next on June 6th, when “Mr. Madison considered an election of one branch at least of the Legislature by the people immediately, as a clear principle of free Govt. and that this mode under proper regulations had the additional advantage of securing better representatives.” Madison was here (with his phrase “better representatives”) subtly contradicting Gerry’s equation of the aristocracy with virtue, when Gerry had said, on May 31st, “The people do not want virtue.” Dickerson sensed this attack from Madison, and quickly responded to it.
The following day, the 7th, “Dickerson ... proposed ... that the men of first Talents may be employed in the national Legislature; they first will have a chance in the Election of the people, failing there, wealth, family, or Talents may hold them up to the State Legislatures as fit characters for the Senate — let their numbers be more than 200; by inlarging their Numbers you increase their consequence weight by combining the families and wealth of the aristocracy, you establish a balance that will check the Democracy.” To Dickerson, aristocrats were superior, because they possessed “first Talents” etc.
Wilson then rose, and he said: “If this amendment passes — we shall not have a national Govt: the Senate will be too numerous, and will not represent the property or numbers of the Nation, but they will represent the States, whose interests may oppose the Genl. Government — the consequence will be unfavorable to the Harmony of the Nation.” Wilson was here couching Dickerson’s proposal as seeking to place the authority of the states above that of the national government -- something that violated the basic purpose for which the Convention itself had been called together.
Madison, picking directly up from, and backing Wilson, now lunged in, immediately, for the kill: “We are about to form a national Govt. and therefore must abandon Ideas founded alone in the plan [Articles] of confedn. The Senate ought to come from, represent, the Wealth of the nation, and this being the Rule, the amendment [by Dickerson] cannot be adopted.” By Madison’s reaffirming Dickenson’s stated goal of making the Senate reflect “the Wealth of the nation,” Madison not only made unequivocally clear that what this Convention was going to produce would be a “nation,” and not a confederation of states, but also that Dickenson’s opposition to “democracy” was not going to be representing this nation. All that Madison would accept from Dickerson’s demands was that one of the two houses of this new national legislature would protect the rights of the rich to their property -- something that to deny would have torn apart this new nation aborning, so soon after the Revolutionary War had ousted the British aristocracy and monarchy. Nobody had any appetite for doing that. In other words: the transition, from the former aristocratic order, into an entirely new and stable democratic order, would represent both persons, and property -- not just the one, or else the other. No superiority of aristocrats to the poor would be assumed by this new Constitution, such as had been presumed by all prior ones throughout history.
This was the compromise upon which our Constitution was founded; and it occurred little more than a week into the nearly four-month deliberations.
Our historical account of the Constitution’s original intent is completed, as, in effect, the present article’s Part Two, by "The Founders, on the Right to Vote."
These two parts, together, show that, as the Constitutional Convention proceeded, the pro-aristocracy faction became quickly quieted and reduced their anti-democratic expressions, to such an extent, that, after June 7th, no one continued any longer to be overtly championing aristocratic control over the nation that they would collectively be creating. The quick subsidence of those expressions of support for aristocracy was an amazing phenomenon. From June 8th onward, the entire focus was upon how most effectively to prevent this nation from becoming like the nations that had existed up to that time: aristocratic, not democratic. A Constitutional Convention that had started with its most overt expressions being against democracy, became, after June 7th, an assembly of men whose overt expressions were instead against aristocracy.
The end-product of all that is our Constitution, which conservatives in recent times try to twist into an “original intent” that, in history, was actually soundly defeated, within just the first two weeks of the U.S. Constitutional Convention.
This understanding is the backdrop for our Constitution’s Sovereignty Clause, which is the most important clause in any 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 defence, 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.”
There is no aristocracy here. There is (unlike in the prior Articles of Confederation) no sovereignty residing in any of the states. And, also being rejected here was this, which opened the closing paragraph of the Articles of Confederation, and which assigned there the ultimate sovereignty to a god, even above the states: “And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in congress, to approve of, and to authorize us to ratify the said articles of confederation ...” No god is anywhere in the U.S. Constitution. No god “authorized” it. The people, the ruled, did, and do.
The U.S. Constitution was a bigger break away from any prior constitution than any constitution in history, before or since, has been. It was truly a revolutionary, progressive, document. Anyone who considers it to be “conservative” has no knowledge of history, or else is lying, because it’s the exact opposite of that: it’s radically progressive. It’s a truly revolutionary document.
Can it be improved? Of course: that’s what the provisions for amending it are for. Unlike any religion’s canonized Scripture, this Constitution is thus a living, not a dead, ultimate legal authority (dead, such as the Bible, the Quran, etc., any canonized Scripture, necessarily is). What makes it a living constitution is that it allows for its own amendment, by the people, by the ruled; it makes them constantly the ultimate rulers. Instead of theocratic, it abandons all theocracy. That’s one of the many things that make it revolutionary.
It is the jewel of our democracy; and, so, it is being attacked, violated, besmirched, and misrepresented, by democracy’s enemies. It is, in fact, our only protection, from the enemies of democracy.
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