As Mark Levin explained in Chapter One, he undertook his project not because he believed the “Constitution, as originally structured, is outdated and outmoded, thereby requiring modernization through amendments, but because of the opposite – that is, the necessity and urgency of restoring constitutional republicanism and preserving the civil society . . . “
In this squib, we’ll examine the observations of James Madison and Alexander Hamilton as they apply to keeping, and if necessary, restoring constitutional republicanism.
Number 33. Laws Judged Against the Constitution. What if the new government overstepped its authority through the exercise of a power reserved to the states? Hamilton advised the people, the creators of the governing compact, to “appeal to the standard they have formed and correct the injury done to the Constitution as needs may suggest and prudence justify.” Through appropriate means, the sovereign people must correct errors, defects and especially breaches of the compact. As a young revolutionary himself, it can hardly be assumed that Hamilton dismissed raw force as a justifiable response when necessary. Since armed resistance can, on occasion, be justified, then less than violent responses are certainly appropriate for lesser violations.
Number 38. Establish a Republic. Madison described how the federal convention was an historic, peaceful response to a worsening national situation.
In this number he reviewed the establishment, through nonviolent means, of ancient republican governments. He wrote, “Of every government established with deliberation and consent reported by ancient history, none were framed by an assembly of men, but by some individual citizen of preeminent wisdom and proven integrity.” So dire was the situation in most, the people, being at their wits end, entrusted individuals to reform their governments. “Fear of discord and disunion,” wrote Madison, exceeded the danger of entrusting so much to one man.
In contrast, Americans should rejoice in that they did not take such risk. They sent delegates to peacefully craft a new governing form suitable to deal with the exigencies under the Articles of Confederation. Every precaution and available lesson from history visited their councils. Yet the Framers were not so conceited as to assume their Constitution of government was to be so static, so bound, as to be entirely acceptable to future generations. Only the passage of time would reveal errors and defects in need of correction.
Over the remainder of #38, Madison politely disagreed with opponents to the Constitution. Whatever the faults of the Constitution, they were overwhelmed tenfold by those under the Articles of Confederation. For example, the confederation congress had unlimited power to raise taxes, emit bills of credit, and raise troops. Separation of powers was non-existent. There was no bill of rights.
Critics contended that no such dangers arose from those defects because congress depended on the willingness of states to comply with tax requisitions. To this, in an indictment that applies to our governing form today, Madison responded, “Then, say I, the Confederation can be charged with the greater folly of declaring certain powers in the federal government to be absolutely necessary and, at the same time, render them absolutely worthless.”
Like the Articles of Confederation, today’s Constitution has been rendered an ineffective governing document. But this time, its ineffectiveness was not caused by the states, but purposely by the government itself.
Number 43. Other Powers and Article V. Because the civil society changes over time, allowance must be made for change to society’s governing compact. Madison wrote that Article V “seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults.” Article V is the means to arrive at a government hoped for by Alexander Hamilton in Federalist #1, one that is established by careful thought and choice, rather than by chance or violence.
Unfortunately, the 17th Amendment rendered our Constitution mutable, if not fluid, in the hands of a progressive and often tyrannical supreme court. Every scotus decision and executive branch regulation that has the force of law is a usurpation of our compact.
Number 48. Separation of Powers. A common refrain among Article V opponents is to “just enforce the Constitution we have,” as if words on paper alone are sufficient to secure free government. From lessons learned under the first state constitutions, Madison recognized that “parchment barriers” by themselves were not to be trusted to stop one branch of government from encroaching on another. To illustrate, he turned to Thomas Jefferson’s Notes on the State of Virginia. Despite the admonition in the Virginia constitution that the several branches should remain distinct, the legislative power regularly encroached upon the executive and judiciary. Jefferson described Virginia’s situation as an “elective despotism” little different in practice from the couple hundred oligarchs that ruled Venice!
Madison determined that free government cannot be kept by merely sending good people to ill-designed institutions. The design of governing institutions must provide checks that secure the authority of each branch.
In my next squib, we’ll take a close look at Federalists 49 and 50. If Article V opponents can find within The Federalist any support for their reluctance to hold an Article V convention, they’ll find them in 49 and 50.
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