Constitutional Law, Featured, National, Rob Natelson, Uncategorized

Natelson: What critics of the Constitution get wrong

Americans traditionally have revered their Constitution. As they should—if only because of the astounding success the United States has enjoyed under its governance.

However, the Constitution always has had critics, particularly among those who believe the federal government should be all-powerful rather than limited in scope. Socialists, for example, recognize that the Constitution’s restrictions on federal authority could frustrate their plans for intrusive government programs, such as the Green New Deal.

Recently socialism has come back into fashion, thereby intensifying the assaults on the Constitution. These assaults come from politicians, political activists, and academics—including many academics who should know better.

Most of these attacks reveal ignorance of the reasons behind the Constitution’s rules and of the history of the document’s drafting and ratification. That history encompasses the framing of the document in 1787 and its ratification by popularly elected conventions in the 13 original states and in Vermont, meeting from late 1787 through 1791.

One common charge against the Constitution is that it is “undemocratic.” Certainly the Constitution sometimes denies temporary majorities their immediate wishes. For example, the First Amendment prohibits most laws restricting speech, even when a majority favors enacting them. And sometimes, though rarely, the presidential election system (of which one component is the Electoral College) produces a winner who did not garner a plurality of the national popular vote.

Why does the Constitution restrict majorities that way? Because the Founders recognized that for self-governance to work, it must respect certain rules, including rules that curb majority demands. The Founders had learned from history that when democracies tyrannize minorities, they degenerate into dictatorships or civil war.

Subsequent history has amply vindicated the Founders’ judgment. Democracies in which temporary majorities can squelch dissenting speech do not last long. Countries that elect their chief executives by simple popular pluralities suffer from instability and corruption.

Another common claim is that the Constitution is sexist because it allegedly discriminates against women and was adopted only by men. But that claim is substantially false. Nothing in the document discriminates against women. The drafting convention of 1787 deliberately composed it in a gender-neutral way, foreseeing that women eventually would participate more fully in national politics. Some of the Constitution’s opponents criticized this, but the framers’ foresight proved accurate when an amendment protecting female suffrage was added to the Constitution in 1919.

Nor is it factual to say that the Constitution was adopted only by men. It is true that when the document was ratified most states did not allow women to vote. But women participated actively in the public debate over ratification. They also comprised a significant portion of the New Jersey electorate, which supported the Constitution overwhelmingly. There are fragmentary records of women voting in other locations as well.

Still another charge is that the Constitution was adopted by slaveholders. If this were true, it would not be surprising: At the time almost every nation recognized slavery.

In fact, however, the claim that slaveholders adopted the Constitution is substantially false.

The 1787 convention drafted the Constitution, but it became law only when ratified by popular conventions meeting each state. Slaveholders comprised only a tiny percentage of the voters electing state delegates. Similarly, slaveholders probably comprised only a sliver of the 1757 delegates in the 14 state ratifying conventions.

Slaveholding was more prevalent among the delegates to the drafting convention. Key figures such as George Washington, James Madison, John Rutledge, and Edmund Randolph were slaveholders. On the other hand, most of the key delegates held no slaves. These included John Dickinson, Benjamin Franklin, Alexander Hamilton, Roger Sherman, James Wilson, and Gouverneur Morris. Indeed, most of these men actively opposed slavery. Dickinson had inherited slaves, but emancipated all of them.

Moreover, many prominent slaveholders, such as Patrick Henry and George Mason, opposed ratification. If the Constitution is discredited because some of its supporters owned slaves, then opposition to the Constitution should be equally discredited.

Finally, the “based on slavery” argument disregards the fact that leaders in the founding generation acknowledged that slavery violated natural law and were working for its extinction. For example, in the 11 years between the Declaration of Independence and the Constitutional Convention, some states enacted emancipation laws and most abolished the international slave trade.

The common claim that the Constitution was adopted only by white people is also substantially false. Most states granted the voting franchise to those Indians who renounced tribal loyalties. The United States population included about 60,000 free African-Americans, and five states enfranchised them as well.

Even more baseless is the claim that the Constitution was adopted only by “the rich.” In fact, the electorate that approved the Constitution consisted primarily of small farmers, merchants, and tradesmen. Property requirements for voting were modest in most states, and some states dropped even those requirements for the ratification elections.

Still another charge is that the Constitution is racist because it was based on the “the idea that a black person was three-fifths of a human being.”

Actually, the text of the U.S. Constitution is color blind, unlike some of the then-existing state constitutions. However, the charge of racism is based on the original Constitution’s Three-Fifths Clause. It provided that a state’s direct tax burden and its representation in the House of Representatives were generally determined by its population—but that five slaves would count as only three free persons.

The critics show themselves ignorant of the wording, purpose, and history of the Three-Fifths Clause. As I have explained elsewhere, this provision was not fundamentally about race: Citizen-Indians and free African-Americans were counted exactly as whites were counted.

The reason for the Clause was that the framers believed that representation should follow taxation, and taxation should be based on ability to pay. A congressional study had shown that because slaves could not sell their labor on the open market, they produced only about 60 percent as much wealth as free persons, thereby reducing a state’s ability to pay taxes.

Although the three-fifths formula frequently is described as a concession to slavery, it can also be described as a punishment for slavery, because it denied slave states the full population-based representation enjoyed by free states.

That having been said, the three-fifths rule is simply irrelevant today because it was removed from the Constitution over 150 years ago.

Perhaps the most nonsensical charge I have heard is that the Electoral College was created to support slavery. There is almost no evidence to support this.

On the contrary: Other than a brief remark by James Madison at the 1787 drafting convention, the constitutional debates over the Electoral College were almost entirely divorced from the issue of slavery. Not only does the historical record show no connection between the slavery and the Electoral College, but in the drafting convention the three states most committed to slavery—Georgia and the Carolinas—all voted against the Electoral College!

Rob Natelson served as a law professor for 25 years, and is nationally known as a constitutional scholar. He is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver, and author of The Original Constitution: What It Actually Said and Meant (3rd ed. 2014).  A version of this article first appeared in The Epoch Times.


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