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founding fathers post-constitutionalBy any objective standard, it would be difficult to claim that the Constitution really matters at any practical level in the United States. At a symbolic level, it still means a great deal. But, what a disconnect: that it matters so much in our minds and language but that it means nothing in our day-to-day realities of government.

Do not get me wrong: I love the Constitution, and I believe and hope that I would die to protect it. After spending a lifetime studying intensely it and those who made it, I certainly believe that it is the greatest document of government ever written. The trouble—as with all things in this world—is that it can only function when the people really want it to function.  And, not just the thing as a whole, but its various parts. Just for a moment, imagine the ostensibly powerful Ninth and Tenth Amendments. On paper, these amendments look as though they should stop any single thing that is beyond the scope of the most limited government. Yet, in reality, they have hardly ever left the actual paper, whether in the way each is studied or in their actual application in politics or in the courtroom. At least some Americans know what is in the First Amendment, but next to no one knows the content of the Ninth and Tenth amendments. The Founders miscalculated at least three times during their creation of the Constitution and the Bill of Rights. First, they miscalculated tragically and with terrible practical and philosophical consequences by allowing the continuance of slavery. They should have followed the example of their brethren in New York at the Confederation Congress in forbidding slavery in the territories, even if it meant the loss of South Carolina and Georgia. Second, they equally miscalculated in believing that each branch of government would always selfishly protect its own interest and power from the assaults of the other two. While this worked well for almost a century-and-a-half, withstanding even the assaults on the structure by Andrew Jackson and Abraham Lincoln, it would not withstand the three-plus terms of Franklin Roosevelt. Congress caved to the executive, and Roosevelt outlived his opponents in the Supreme Court. Thus, the imperial presidency.

expulsion from edenThis leads quite specifically into the third mistake the Founders made—and, perhaps the least forgivable in terms of what they should have known. “If men were angels,” Madison wrote. Bu they are not, and the Founders knew it. Yet, they were so taken with the re-creation of a Republic in the Western world and with the mission of America, that they allowed their enthusiasm to get the best of them. They actually believed in the New Order of the Ages that had been predicted by Virgil in Eclogue 4, and they believed they carried Virgil’s torch.

No one expressed this better than did Benjamin Franklin on June 2, 1787, in the Constitutional Convention.

To set the stage for this brief talk, one must remember that the room in which the upwards of fifty-five founding fathers met was very small. It was also an extremely hot summer, and the heavy curtains over the windows helped keep away the snoopers, but it also kept away the breeze and any proper air circulation or ventilation. Thus, when Ben Franklin—not a small man—gave his speech, he probably was standing within mere feet (if not inches) of the presiding officer, George Washington.

To bring the matter nearer home, have we not seen the great and most important of our officers, that of General of our armies executed for eight years together without the smallest salary, by a Patriot whom I will not now offend by any other praise; and this through fatigues and distresses in common with the other brave men his military friends & companions, and the constant anxieties peculiar to his station? And shall we doubt finding three or four men in all the U. States, with public spirit enough to bear sitting in peaceful Council for perhaps an equal term, merely to preside over our civil concerns, and see that our laws are duly executed. Sir, I have a better opinion of our country. I think we shall never be without a sufficient number of wise and good men to undertake and execute well and faithfully the Office in question.

While Franklin’s optimism at some level is admirable, it was also unfounded. The very same Founders who understood that man was imperfect and could only seek perfection (but never attain it) in this world, somehow came to believe that by reintroducing a republic into the world, the very best of man would emerge. Importantly, the Founders did think the actual nature of man would change without the republic, only that the republic would allow (and demand) the best of the human person to come forward and flourish. George Washington, it seemed, was not unique, but only the beginning of a new type of Cincinnatian man, one dedicated to given his entirety to the res publica.


It’s not enough, however, to give everything to the republic. Countless many—whether in the halls of Congress or on the shores of Tripoli—have done exactly this. But, how many men (or, someday, women) have emerged to take the role of the presidency with any true genius? Many have slept through their presidencies, and many have used the presidency as a means to promote goodness at home and abroad, but still others have done nothing but use the power of the presidency to remake the world in their own personal image.

Franklin Roosevelt was simply a power-hungry man, a would-be dictator who would have been much worse had he not had a Constitution to restrain him. Still, his more than three terms in office (he died at the beginning of his fourth term) did amazing damage, bolstering the power of the executive branch beyond the extent that a reasonable person (let alone a lover of liberty and the Constitution) might countenance. Congress caved, and it has been caving ever since. Every once in a while, it roars, but, overall, it is an impotent body.

The Founders got far more right than they did wrong, and none of these criticisms should take away from their genius or the genius of their creation. Still, these three things flaws are not minor at any level. They matter deeply.

If we as conservatives are to enter the realm of politics, we must figure out not just how to remind Americans what the Constitution meant, but what it can mean, and how that resurrection might come about.

Books by Bradley Birzer may be found in The Imaginative Conservative Bookstore


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14 replies to this post
  1. Mr Birzer wrote, “Just for a moment, imagine the ostensibly powerful Ninth and Tenth Amendments. On paper, these amendments look as though they should stop any single thing that is beyond the scope of the most limited government. Yet, in reality, they have hardly ever left the actual paper, whether in the way each is studied or in their actual application in politics or in the courtroom.”

    In my opinion, that is the crux of all our woes. And why would it not be? Consider that a separation of powers within the national government was never going to be a bulwark against tyranny as only a truly federal plan where the people of the states could thwart the national government could have prevented such a state of affairs as we live under now. Those that comprise the national government will look for ways and means to enlarge its sphere as that feeds their own unquenchable libido dominandi. From the first then when Mr. Randolph laid out a plan for a “national” government rather than federal, and Mr. Pinckney wishes to know whether Randolph’s plan would “abolish the state governments altogether” this country was in trouble as this is the road that this country has travelled. Randolph knew it as well since according to Madison’s notes his reply appears to be that of the typical politician which is not to give an answer to the actual question.

    It took wars, corruption, and diverse intrigues for full fruition, but I think the true lack of federalism laid the foundation for the totalitarian democracy we now live under where the people can be overruled by five ideologues on a “supreme” tribunal, or by presidential edict, on matters that should not even concern either, moral and religious that they are. Not a state of affairs a Kirkian conservative could love, but it’s all good if you’re a card carrying collectivist.

  2. Or maybe not. Maybe the ninth and the tenth are by design. A nod to the states and the people with no real metal. As the failure to address slavery. A, then, current local issue among thousands of others. A nod to Georgia and South Carilina. A flourish majestic by its absence. Let’s get this big thing done. Let’s move on what we can get today and meet these issues later.

    We continue well.

  3. One of my “three mistakes” would be the Supreme Court. Unnecessary to recount their bad decisions….

    The practical effect is that a 5-4 decision — and how can that be? how is a law possibly constitutional and at the same time unconstitutional depending on who considers it? and these are all our wisest, not knuckleheads like me — means that one person — one! — sets the law for the entire country.

    An unelected person, no less.

    We do need judicial review to protect minorities and to attempt a semblance of following our Constitution. But it needs tweaking. Maybe ten year terms. Maybe requirements of elected office (ie, not coming from academic ivory towers). Maybe prohibiting 5-4 votes altogether.

    It surprises me no one else thinks this is a problem. Maybe the cure would be worse than the disease.

    • Re: one person setting the laws for the entire country, which continues to expand in population. It’s even worse than that, because this one anonymous individual, has likely never received a vote of a fellow citizen for even school board (O’Connor, Warren, Hugo Black and a few others are the exceptions). And if they were to walk into a room, probably 99% of the voters in the United States would not even recognize them.

      And this anonymous, unelected but appointed to a lifetime of REAL power….gets to make massive laws to impose upon the entire country?

      Incredible, really.

  4. Interesting analysis and much to agree with. It does, however, call to mind Clyde Wilson’s essay re: our Yankee neighbors who couldn’t mind their own business.

  5. Dr. Birzer:

    Great piece. The three mistakes you shrewdly point to underscore a powerful naivete in the disposition of the framers.

    Two more (you know I harbor these!) devastating structural framing errors should be added which lend necessary contour to these dispositional framing mistakes.

    First: the natural rights translated from the Declaration of Independence to the Due Process Clauses of the Fifth and Fourteenth Amendments–life, liberty, property, and revolution–are simply impossible on the Whig or “neo-Whig” basis that our Protestant-Enlightenment framers intended them. “Protestant Natural Law” or “Enlightenment Natural Law” designates a contradiction in terms. Whether we’re talking Locke, Sidney, or their American emulators, such rights as life, liberty, and property cannot be said to “stem from” nature in an intelligible way…unless one is talking about the view of the true expositors of the Natural Law (who were altogether rejected by Whigs and neo-Whigs). For example, “liberty” from the Natural Law tradition must become something much more akin to “license” in the pseudo-NL tradition of the Whigs: Protestant-Enlightenment thinkers who denied the very existence of human free will. (How do you enshrine liberty without free will?!)

    Second: the first three articles of the Constitution contain the document’s primary idea: “federalism,” which was supposed to keep government small and local. (Efficiently, federalism failed because, as you rightly point out, the three branches did not compete with one another as jealously as they were designed to do. But why not?) Federalism ultimately failed because it was simply secularized, “Whig subsidiarity,” a pseudo-version wholly unable to contemplate true liberty (subsidiarity’s goal). If one demands further proof of federalism’s doom (aside from the evidence of the 2016 Leviathan American government), one need only consult the modifications Madison and the Federalists made to their alleged exemplar Montesquieu. Montesquieu, a bona fide expositor of Natural Law subsidiarity (before the term existed, the concept did), laid out three cardinal rules for republics that Madison and the Feds saw fit to override rather than heed:
    a) republics must be geographically small (Madison “outsmarts” this rule of subsidiarity in Federalist #10);
    b) republics must be peopled with a moral citizenry of a single religion (Madison “outsmarts” this rule in Federalists #10 and #51);
    c) republics must have three branches of distinct, NON-overlapping powers (Madison “outsmarts” this rule in Federalists #39 and #51).

    In short, the Natural Law bears requirements of its own. A bunch of Whigs and neo-Whigs cannot simply borrow the convenient conclusion/outcome from a Natural Law whose premises Whiggism outright rejected. That is the story of the devolving American Constitution, along with its historical assassins like Lincoln, the Roosevelts, the Warren Court, Hugo Black, Obama, etc. Good article.

  6. Dr. Birzer (et al): You advocate the New York solution, as it were, and note that it may have come at the price of losing SC and GA. But I’m curious. What about Virginia? Or is the move of the national HQ to Virginia enough to have kept them in the tent? I tend to think that New York getting more of its way would have caused the very powerful Virginia folks to bolt. Probably Hamilton’s personality coupled with this would have been too much for the Virginians. Would be interested in your comment and education to us as to why Virginia would have gone along with that (which I assume is the case).

  7. The trouble—as with all things in this world—is that it can only function when the people really want it to function.

    Something that is much easier to provide when one man is in charge.

  8. The biggest mistake the Framers made with the Constitution was baking in an inability to change it fundamentally. The tripartite government is a pathological mess. And in the Congress, the design of the Senate is an impassible barrier to substantive change.

    After the Constitution was ratified, in the 1790 census the free-person population ratio of the largest state (Virginia) to the smallest (Delaware) was 9 to 1. In the 2010 census, that ratio had exploded to 66 to 1, (California vs. Wyoming. The tails of the small states can almost completely wag the dog.

    So the federal government is frozen in a hyper-dysfunctional, corrupt metastasized state with an Imperial President, a feckless, impotent Congress and a judiciary that makes it up as it goes along. And there is nothing to reverse that devolution because the small states would never cede changes to the governance model that reduced their out-sized political influence in the Senate, the Electoral College and in ratifying changes to the Constitution.

    Ideally, the United States would reconfigure itself as a parliamentary system, getting rid of the noxious Imperial Presidency. But that’s politically impossible. So stick a fork in America, because it’s (crony) cooked. And the Founders unknowingly set it up to fail.

  9. Dr. B, you leave a lot on FDR’s doorstep. Without commenting on the moral evaluation presented, it seems to me that FDR’s moves depended on the destruction of States representation that occurred with the 17th Amendment. This destruction imbalanced the machinery in a way that could only lead to both a growth in the Executive and the emergence of an oligarchical special interest movement in the shadows. Why do few scholars speak to the residual impact of the 17th? Of course, I’d side with John Adams and say that the expirement signed its death certificate with the 12th, but that’s another article altogether.

    Dr. K

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