A Constitutional Quandary: Part One

 This is the first in a multi-part blog series regarding the Constution and related political matters. I don't plan, at this time, to discuss the entirety of the Constitution or even a broad range of issues. There has been intense interest in Constitutionality as it relates to the Health Care Bill, and other Obama Administration plans, particularly since twenty states (to date) have filed suit against the Health Care Bill. I have seen and heard substantial debate on the issue and it turns out that the particular issues in question are ones I know a little bit about. You see, I wrote my Political Science Senior Thesis on court challenges surrounding medical marijuana. Turns out the same Constitutional questions surrounding that issue are the main issues surrounding the health care debate. I also had to write an Honors Program Senior Thesis, and to keep myself from going completely insane in my last year of college, I picked a tangentially related issue to write about.--Theodore Lowi's "intrest group liberalism" theory as it related to marijuana policy and the courts. So, I will be drawing from my previous research, which honestly, six years later I could use a refresher course on myself, and positing some thoughts on the Commerce Clause, the Necessary and Proper Clause, and the 10th Amendment.

I also concentrated in both undergrad and graduate school on social policy, interest group theory (collective action), and rhetoric and social movements. I will write a seperate series on those issues as they relate to the "Tea Party Movement."

But before any substantitive discussion of the Constitution can take place, a little historical background is required. In my personal exerience I've found that a good majority of people do not know that the United States was not founded in its current configuration immediately following the Revolutionary War. This is a major failing of both our public school system and the university system because knowing about the time period between the Declaration of Independence in 1776 and the ratification of the Constitution in 1788 when we were governed by the Articles of Confederation.

The Articles of Confederation was our first attempt at creating the great republican society we desired to become. Unfortunately they were a massive failure. Basically they gave too much power to the states, which meant that larger states had the upper hand against smaller states. Further, with a very limited and weak centralized government, our ability to engage in any kind of real commerce was greatly limited, as well as foreign policy. the biggest problem at the time was the inability of the central, or federal, government to tax and maintain an army. The Untied States had assumed a large amount of debt during the Revolutionary War and did not have the ability to repay it. It also did not have the funds to keep a standing army, and had to rely on disorganized state militias to basically volunteer. In an ear where hostilities between the different regions of the United States were raw and ripe, this was a challenge. Not to mention foreign powers that had their eyes on this new, weak and broke group of rebels and the massive amounts of land and resources we suddenly had available but were unable to defend.

The Constitutional Convention was convened in Philadelphia in 1787 to fix these problems. Two main groups had formed around ideas about how America should approach a new constitution. The Federalists supported a much stronger federal government, more similar to what we have today (although I think even they would be surprised at the power and reach of the modern federal government). The Anti-Federalists, later known as the republicans, believed that the federal government should ideally have less power than the states, but worst case equal. While some Federalists had an unspoken affinity for the monarchial form of government, they firmly believed that a democracy could have a strong federal government without becoming tyrannical. In fact, they believed it was necessary to keeping society free, by keeping society orderly.

Anti-Federalists believed that a strong federal government would not only quash the liberties of states, but of individuals as well. Feeling that the nature of man is such that it will always break into "factions," or groups gathered around common interests, a strong federal government presented a threat to the freedom of all people because the majority would have the ability to oppress the minority--just as had been done to the Colonies. they also thought there were no good ways to restrain the powers of the federal government to prevent this from happening without limiting liberties in different ways.

To a modern reader the ideas of the Anti-Federalists probably sound more "American" and "democratic," but the ideas of the Federalists probably make more practical sense, because that is closer to our modern system of government. Modern "factions" seem to be less concerned about government doing something, they just want the government to do what they want, and this is the exact fear the Founders had in mind when forming our government.

The Federalist Papers were phamphlets written and distributed by the Founders, advocating for or against particular provisions in the Constitution and for or against its ratification. They outline the major concerns of the time and give ample insight into the intent of the Founders, providing a great resource to supplement the rather short and concise document that is the Constitution.


Federalist Paper No. 10 written by James Madison describes the dangers of "faction:"


If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, interest both the public good and the rights of other citizens. To secure the public good and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind....


...From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

The full text of the document can be read here: http://www.constitution.org/fed/federa10.htm

The threat of faction was very real at the time, just as it is today, and threatened to destroy the young union of the United States. It is not surprising that many Anti-Federalists were from Virginia, which as a large, wealthy slave-holding state with many sea ports was poised to become dominant, much to the dismay of the New Englanders.

***Note on terminology: when writing about historical political ideas and institutions it is important to recognize that some terms used do not have the same meaning as they do today. For example "republican" as used in this post does not mean Republican as in the current political party. Nor does "liberal" mean Liberal as defined my the modern political ideology most closely aligned with the Democratic Party. Further, "democratic" as used above simply means the form of government by which a majority vote determines law, not Democratic Party. Please take not of the differences in capitalization and be sure to understand the meanings of the words in the context, because many political debates I have engaged in over the years get caught up in matters of semantics when using the traditional, political theory terms versus modern definitions of the same, or similar, words.