Happy Constitution Day!

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Today is Constitution Day, a holiday created four years ago to mandate that schools receiving federal funds focus on teaching the Constitution. My home town paper laments that “Constitution Day has become a holiday-lite, a calendar marking that brings up nods of appreciation but little else.” Perhaps that makes USA Today a better newspaper to take note of the holiday with a 100 word story (I scored 80% on the linked quiz).

For five months in 1787, a constitutional convention convened in Philadelphia to revise the Articles of the Confederation. The articles were considered inadequate for the nascent federal government to deal with conflicts such as Shay’s Rebellion. Instead of revising the Articles, the delegates wrote an entirely new document. 221 years ago today – on September 17, 1787 – 39 of the 55 delegates to the convention signed the Constitution of the United States. It is the oldest and shortest Constitution of any major government in the world, and the first to be written by representatives of those who were to be governed.

Before becoming the basis of our government, the Constitution had to be ratified by the states. Having fought to escape the shackles of a distant despotic monarchy, many were understandably leery of a replacing it with a less distant but strong federal government. The document was debated by citizens and leaders in the mass media of the day – newspapers and pamphlets. From About.com:

“In the months that followed, James Madison, Alexander Hamilton and John Jay would write the Federalist Papers in support, while Patrick Henry, Elbridge Gerry, and George Mason would organize the opposition to the new Constitution. By June 21, 1788, nine states had approved the Constitution, finally forming “a more perfect Union.”

James Madison, the “Father of the Constitution” in Federalist #51 argued for the protections provided by the separation of power, checks and balances in the Constitution:

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The debate on whether the constitution adequately protects the governed from the government continues to this day. Widener University School of Law has organized an online debate on what the Constitution means to modern Americans. Richard Pildes, Professor of Constitutional Law at New York University School of Law contributes to the debate with a pessimistic analysis “Political parties tilt balance of power“:

“During periods of unified government, in which the same political party controls the House, Senate and the presidency, the president has the capacity to exercise wide-ranging powers without extensive oversight or checking and balancing from the other political institutions of government. The president’s power is thus not static or fixed. Yet neither the Constitution nor our thinking about the presidency has fully come to terms with this truth. Indeed, the Constitution did not contemplate a system of political parties at all. When the Constitution was designed, the existence of parties — factions, in James Madison’s terms — was a sign of a diseased political system. The Constitution was specifically designed to create a system that would transcend parties and minimize their role… the conventional stories we tell about our system of checks and balances, or separation of powers, are not all that realistic in practice. If we continue to believe in the benefits of checks and balances — and I do — we must accept that effective congressional oversight of the president is not likely when the House, Senate, and presidency are in the hands of the same party. We need to modify our institutional structures to find other ways of generating effective checks and balances. The most promising route would be to give the opposition party tools to oversee the president — perhaps the power to call hearings or subpoena witnesses or to audit the government. I do not expect these measures to be adopted. No legislative majority cedes power to the minority.”

However, until such time that additional protections for the governed can be built into the Constitution, we the governed can address this Constitutional defect on our own – by never voting one party into control of the Presidency, Senate, and House or Representatives. By voting for divided government.

Easier said than done, but important to think about.