Our conservative Constitution

In the last week, the left has orchestrated a public assault on the Constitution. This is nothing new, but the offensive is noteworthy because it involved both a Supreme Court justice and the president of the United States. On January 30, Supreme Court Justice Ruth Bader Ginsburg said during a television interview in Egypt that, “I would not look to the United States Constitution if I were drafting a constitution in the year 2012.” Six days later, President Barack Obama told Matt Lauer that, “I have not been able to force Congress to implement every aspect of what I said in 2008 … it turns out that our founders designed a system that makes it more difficult to bring about change than I would like sometimes.” And the following day, New York Times contributor Adam Liptak wrote that, “The Constitution has seen better days. … The United States Constitution is terse and old, and it guarantees relatively few rights.”

To progressives, the Constitution serves as a continual impediment to their legislative agenda. Liptak continued in his piece that perhaps there are “newer, sexier, and more powerful operating systems in the constitutional marketplace.” In other words, the Constitution is an archaic relic that needs to be discarded and replaced with something better. Obama essentially said the same thing in his State of the Union address when he called the executive branch “outdated.” This tune has been played before, both by the left and more importantly by James Madison in 1787.

The standard interpretation of the 1787 Constitutional Convention in Philadelphia has “large state” advocates such as James Madison of Virginia pitted against “small state” proponents like William Paterson of New Jersey. According to this narrative, the small states, such as Delaware, New Jersey, Maryland, and South Carolina, were concerned that larges states such as Virginia, New York, and Massachusetts, were attempting a power grab in Philadelphia through Madison’s famous Virginia Plan. It would have scrapped the Articles of Confederation — the first governing document for the United States — and replaced it with a Constitution that had a bicameral legislature with representation based on population in both houses, a supreme court, and an executive branch. Madison was searching for a “newer, sexier, more powerful operating system.” He would not get his wish. His constitution fell apart almost immediately after it was presented by Edmund Randolph in the opening days of the convention.

The conservative backlash against Madison’s plan was led by men like John Dickinson of Delaware, Roger Sherman of Connecticut, Luther Martin of Maryland, George Mason of Virginia, and John Rutledge of South Carolina. Madison is often called the “father of the Constitution,” but the final document had more of Sherman, Dickinson, and Rutledge in it than Madison. Dickinson famously said during the Convention that “Experience must be our only guide. Reason may mislead us.” This was a slap at Madison’s “reasonable” changes to the central government. Dickinson later added that, “If the state governments were excluded from all agency in the national one, and all power drawn from the people at large, the consequence would be, that the national government would move in the same direction as the state governments now do, and would run into the same mischiefs” such as depreciated paper currency, high taxes, and oppressive legislation. Sound familiar?

The real debate in Philadelphia, then, was not between large states and small states; it was between nationalists and federalists. The nationalists, such as Madison, Alexander Hamilton, James Wilson, and Gouverneur Morris, wanted to abolish the states and create a singular central government charged with legislating for the American people as a whole. The federalists (often miss-labeled the anti-federalists) resisted, and while they were willing to give the central government greater strength, they insisted that the states retain control of the government with the exception of certain delegated or enumerated powers. They won the debate, as proponents of the Constitution continually pointed out during the ratification process. As William Richardson Davie of North Carolina said in 1788 in arguing for the ratification of the Constitution, “If there were any seeds in this Constitution which might, one day, produce a consolidation, it would, sir, with me, be an insuperable objection. I am so perfectly convinced that so extensive a country as this can never be managed by one consolidated government.”