Perpetuating False Myths: The US Constitution - Discussion I

Dr. Louise Mayo, History professor emeritus of Pittsburgh, Pennsylvania reacted to my post on "Perpetuating False Myths - The US Constitution" with this exposition:

Your history is largely right on, but I think that you are not entirely fair to the New York Times article and not as nuanced as the real story is.  The article does not really say that the founders wanted a weaker government than the Articles of Confederation, but it does, largely correctly, point out that there was fear about one branch of government becoming too powerful, hence the elaborate system of checks and balances.  Indeed the writers of the Constitution rejected (unfortunately in my opinion) a parliamentary system in which there is for the most part a single branch.  Under that system, which exists in most of Europe, the party that is elected has the power to enact the basic legislation it has promised the voters that it would. The minority cannot block the measures introduced by the majority. (Of course the fly in the ointment occurs when there are three or more parties, making compromises and deals essential.)  Had we such a system here when Obama and the Democrats won big majorities in 2008, they could have passed their program without any real problems or much compromise.  That is not to argue that the Republicans in the Senate are following constitutional precedent when they, while still in the minority, successfully block appointments and the executive's ability to carry out laws.  In the past, the unwritten understanding was that a president could have the appointees he wanted who reflected his point of view, with only occasional exceptions. I cannot remember a time in history when the opposition party was so single-mindedly determined to insure that the President fails and uses the bludgeon of threatened filibuster to block just about everything and everyone.

Which I tried to rebut with:

Thank you for your input. I am glad that I provoked you into commenting.

However, I question that the "elaborate checks and balances" were intended to cause gridlock. First I question whether the "Checks and Balances" that the Times and you both refer to were a concept at the convention. I can find nothing in the Constitutional debates that indicates that it intended the Supreme Court to act as a restraint. As a matter of fact, before Marbury vs. Madison was decided it was assumed by President Washington that the Court had no such power and that the veto power was to be used to reject what the President considered unconstitutional.

So aside from the bicameral legislature which I contend was the result of the compromise outlined by me, the only other check or balance is the President's veto. While my reading in this area, I am sure, is not as extensive as yours, I have found nothing to indicate that the bicameral legislature was intended as a check or a balance. I am sure that you are correct that the founders considered a parliamentary system, which I agree would be better than what we have, but I contend it was rejected, not because it would not be enough of a check on power, but rather because it did not satisfy the two faction at the convention, as I stated. Also there was precedence for it in the British system, which had the House of Commons and the House of Lords (bicameral) with the King being the Chief executive, the President in our system.

I keep hearing the words "checks and balances" but I am not even sure that those words were used at the convention. I believe, though, of course, I may be wrong, that this is a modern invention.

As a matter of fact there was great concern that the Constitution gave the federal government too much power; hence the demand for the Bill of Rights, which I grant you was intended to limit the power of the federal government, but that is different from the contention that the Constitution itself was intended to hamstring the government as a way of making sure it does not overstep.

Can you cite anything that would indicate that the bicameral legislature was intended as a check or a balance, rather than the need for compromise as I have argued.

As for doing an injustice to the Times, even if I was wrong here, and I don't concede that I was,  there are many, many instances of the Times feeding into the paradigm of the Right. For example its distorted writing by Judith Miller in support of Iraq war, its slandering of Gore and Kerry and its reluctance to report on Watergate, see e.g: The Media II - Falsehoods about Gore, The Media! (Watergate/Clinton) and The Media III - Falsehoods about Kerry.  I could cite many others and may return to that subject at a later time.

After further research I added:

Since dispatching the message below, I tried to search for any mention of checks and balances in the records of the debates at Philadelphia. I could find none.

I then went to the Federalist Papers where I did find a reference to checks, but not to balances in Federalist No. 51 and where Publius writes:

"First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people."

But I don't find that adequate or convincing proof that the bicameral legislature was intended as a "check and balance" even if possibly Hamilton or Madison used something close to such an argument on its behalf.

As you can see I am perfectly willing to prove myself wrong and will happily (well maybe not happily) concede that I was wrong if any evidence, other than that it is the conventional wisdom even among historians, can be adduced by you or me or anyone else. However, I am always suspicious of conventional wisdom, even if held by a distinguished group, absent convincing evidence.

The discussion concluded with Dr. Mayo's following observations which largely quoted further from Federalist No. 51. Her comments are in parentheses and bold.

So I think this discussion is going in circles.  Here are the relevant sections of Federalist 51:

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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

In republican government, the legislative authority necessarily predominates. The remedy for this inconvenience is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. (Idea of 2 branches as checks on each other.)

In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.

It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure (this) method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

(By the way this shows a realization of judicial branch's role) A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.

(The 2 branches of the legislature is not the central point, but it is also clear that one was to represent the people and the other representing the states, as you rightly point out, was also NOT chosen by the people deliberately to provide counter-weight to messy popular "passions.")

Let me conclude with, what has become a somewhat esoteric, though very interesting discussion, by pointing out that Dr. Mayo is unable to quote from the minutes of the convention itself (though of course there were no official minutes, only the recollection of participants at the convention) and neither she nor I can find any reference to this issue in the Federalist Papers except in one out of eighty-five, and this was in an attempt to sell the document, hardly a reliable way to determine the intent of the authors.

But I say the argument is esoteric, because the principal cause of the gridlock, is not the existence of the two Houses, but the use of non-Constutional means to obstruct, most particularly the filibuster and the willingness to cause untold damage to the country, unless its agenda is adopted. In this connection the Times article, whether having a basis or not, feeds into the false paradigm that the problems we have encountered are the results of the structure of our government, rather than the deliberate obstructionism by any and all means of one of our parties.

Perpetuating False Myths: The US Constitution

As the Republican Party continues its campaign to hold the Nation hostage as a means of forcing their radical program down the throats of the American people they depend on the propagation of many myths that serve to justify both their programs and their tactics.

Many of these myths turn around our founding fathers and their intent in the creation of the Constitution. We hear over and over again, until by the mere use of repetition, it becomes a truism, that the purpose of the Constitution was to limit the powers of the Federal government. Nothing could be further from the truth!

At the time that the Constitutional convention was called, the thirteen states that had won independence from Britain, were in a very loose alliance under a document called the Articles of Confederation, which had been agreed to by the Continental Congress on November 15,1777, but which had not been ratified until 1781. The War of Independence ended in 1783 with the Treaty of Paris. The Constitutional Convention convened four years later in 1787, and was convened because the Articles of Confederation did not confer sufficient powers on the Federal government and was causing gridlock. Among its many weaknesses was the fact that it could only be amended by unanimous vote, and that it did not have the power to prevent the states from acting in their own individual interests, instead of in the interests of the whole, e.g., “Rhode Island's imposing taxes on all traffic passing through it on the post road that linked all the states.”

For more details click here.

“Virginian James Madison has been called the Father of the Constitution. He arrived in Philadelphia for the Convention almost two weeks early so that he could start thinking about what he wanted the Convention to accomplish. From his point of view, there were a few main problems with the Confederation. The states were under no obligation to pay their fair share of the national budget; they violated international treaties with abandon; they ran roughshod over the authority of the Congress; and they violated each other's rights incessantly.”

See here.

As can readily be seen, from this history, the founding fathers, and Madison in particular, did not draft the Constitution in order to limit the powers of the Federal Government or to create gridlock, as a front-page article in the New York Times’ Week in Review contends under the title of “Standstill Nation."

The Constitution was intended to do away with the gridlock of the Articles of Confederation, and to decrease the power of the states. Contentions so often heard to the contrary are not only misleading, but downright false. The New York Times, “that paragon of liberalism” is simply playing into the false paradigm promulgated and perpetuated by dint of repetition by the Republican party in order to justify its program of emasculating the Federal government, and in fact emasculating all government, in so far as it tries to serve the vast majority of its citizens who have not been fortunate enough to acquire great wealth.

The New York Times article propounds a notion that in order to create gridlock the Founding Fathers created two Houses. While the existence of two Houses certainly does not further the smooth functioning of government, it is nothing short of silly to suggest that they were created for that purpose. This among many of the other myths propounded ignores the fact that the document was not the product of careful evaluation of all its possible consequences, but rather the product of endless compromise. There were those who felt that the legislative branch should simply be representative of the individual states, and therefore the Senate was created giving each state regardless of its size, two Senators, who were to be selected, not by the people, but by the legislatures of the individual states. See Article I, Section 3 of the US Constitution (This was not changed until 1913 when the 17th Amendment provided for the election of Senators by popular vote.)

Others felt that the people, according to their number, should be in control of the legislature of the United States, and argued for what came to be the House of Representatives.

The creation of the two Houses was the compromise worked out to satisfy these contending factions, not as the Times article contends, to create gridlock. What utter nonsense!!

In any case, today’s gridlock is not so much the result of the existence of the two Houses but rather the result of one of our parties being determined to use parliamentary tactics to thwart the will of the majority, and impose its will on the Nation. Toward this end they have created non-constitutional requirements to pass legislation, having, for example, instituted the 60 vote rule in the Senate, a requirement nowhere to be found in the Constitution. (While the filibuster was used before it became a tool of party policy, it was used only by individuals or small groups, most frequently to thwart civil rights legislation. It was not until fairly recently that it became a tool of one of the major parties, creating a new hitherto unknown requirement of sixty votes to pass any legislation or confirm any Presidential appointment.)

Similarly Tea Partiers and Republicans in general, keep relying on the provisions of the US Constitution and its first ten amendments, totally ignoring the 17 amendments that have followed, unless they happen to favor their agenda. Most particularly, they would like to negate the 14th amendment and take us to an antebellum era. The Civil War was fought, the secessionists and state righters lost, and the 14th amendment is the law of the land, and in so far as it contradicts the provisions of the tenth amendment, it overrides that amendment.

What the Times and other so called liberal newspapers are doing is allowing the "Right" to dismiss any liberal sounding article or columns as just the "usual liberal" views, while taking the many Right wing fulminations that come from the page of the Times as, "even the Times says," making it sound as the ultimate affirmation of falsehoods and myths.

What the media should be doing, is setting the record straight, shining a light on truth, and exposing lies, instead of trying to prove its non-partisanship and its non-liberal bona fides by propounding lies and feeding into the myths that support the agenda of one party and a fanatical group of radicals trying to impose their will by non-Constitutional and reckless means.