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December 19 - December 20, 2024
“History, in general, only informs us what bad government is” Thomas Jefferson
To do so, they turned to the principles and sensibilities of the Enlightenment, the seventeenth- and eighteenth-century intellectual movement in Europe that emphasized reason and science instead of religious dogmatism and blind faith.
All it’s [sic] authority rests on the harmonizing sentiments of the day, whether expressed in conversation, letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, & c. Jefferson highlighted several intellectuals who influenced America’s founding and design.
Cicero understood the dangers inherent in concentrated governmental power: “When a government becomes powerful it is destructive, extravagant and violent; it is an usurer which takes bread from innocent mouths and deprives honorable men of their substance, for votes with which to perpetuate itself.” This deep fear of government power pervades America’s Constitutional framework.
Algernon Sidney, an Englishman executed by the government in 1683 for allegedly trying to assassinate King Charles II.
America was an experiment bent on destroying that order—on vanquishing the throne—and putting the ideals of democracy and self-governance into practice.
America’s Constitutional Convention occurred in 1787, several years after the Revolutionary War.
In addition to addressing the errors that long plagued history’s governments, the founders sought to correct the recent defects of the Articles of Confederation.
The central government was weak and dysfunctional, lacking both executive and judicial functions. The legislature couldn’t levy taxes to fund its operations and relied instead on voluntary state payments. The states had their own currencies, stifling trade among them. And after the war, the new nation’s economy was so weak it couldn’t settle its substantial war debts to European countries and investors.
Shays’ Rebellion8 in 1786 and 1787 brought the Confederation’s embarrassing weakness into stark relief.
Merely 4,400 words, the Constitution9 has seven articles that form the basic structure of American government: • Article I outlines the Legislative Branch, including Congress’s power to pass legislation, borrow money, and declare war. • Article II outlines the Executive Branch, including the President’s power to enter treaties, nominate federal judges, and command the military. • Article III outlines the Judicial Branch, including judges’ power to rule on “cases and controversies” between litigants. • Article IV outlines the responsibilities of the federal government and state governments. •
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A vital source for understanding how America works, the Federalist Papers emerged shortly after Americans drafted the Constitution.
“He must be able to detect no inconsistencies in slavery; he must be made to feel that slavery is right; and he can be brought to that only when he ceases to be a man” Frederick Douglass
Slave-holding states thus received a great reward for their terrible sin: an outsized influence in Congress. And because the Constitution’s Electoral College appoints states’ electors based on Congressional representation, slave-holding states also got a leg up with presidential elections. The Three-Fifths Clause may even have handed Virginia’s Thomas Jefferson (a major slaveholder himself) the presidency in 1800.
Indeed, the Three-Fifths Clause didn’t just protect slavery; it dramatically incentivized the practice: the more slaves southern states acquired, the more government power they amassed.
The Three-Fifths Clause wasn’t the only provision emblazing slavery into America’s founding document. The founders also included the Slave-Trade Clause. This Constitutional requirement was chilling: no prohibition could be placed on the fundamental right of Americans to import slaves into the country for twenty years:
One of human history’s worst practices was not just prevalent in America, was not just condoned, was not just encouraged, but was so essential that the founders gave it protections and advantages in the nation’s founding document and highest law.
And post-Civil-War Reconstruction was blighted by racial atrocities, as southern states resisted the amendments’ dictates. Indeed, white racists consistently perpetrated horrific, gratuitous crimes against Black people well into the twentieth century.
Moreover, Jim Crow—the system of express legal discrimination against Black people—long prevailed in the American South.
Jim Crow lasted a century—from the post-Civil-War era until the 1968 Civil Rights Act.
The legal system denied Black people numerous fundamental rights, including the right to vote, to hold a job, and to get an education. Those who dared to violate Jim Crow’s laws (or who were merely accused of doing so)...
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The wounds from this recent history are still fresh. Tensions are still high. And race is still “the fault line in American politics,” according to Bara...
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A July 2021 Gallup poll reveals that “U.S. adults’ positive ratings of relations between Black and White Americans are at their lowest point in more than two decades of measurement. Currently, 42% of Americans say relations between the two groups are ‘very’ ...
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“We have to study the history of slavery and its role and impact on the development of our country because otherwise we can’t understand our country. As the founding fathers said, it was the necessary evil upon which the union was built, but the union was built in a way, as Lincoln said, to put slavery on the course to its ultimate extinction.”
The 4th Amendment thus prohibits unreasonable government searches and seizures.
It also includes the 2nd Amendment, the right to keep and bear arms: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
showed that in 2016, America’s gun death rate far surpassed that of other developed democracies: • America: 10.6 per 100,000 people • Canada: 2.1 • Australia: 1.0 • France: 2.7 • Germany: 0.9 • Spain: 0.6 More than five Americans die from guns for every one Canadian killed by a gun.
Fifty-six percent of U.S. adults say gun laws should be stricter, while 31% believe they should be kept as they are now and 12% favor less strict gun laws.”
One of the Constitution’s biggest flaws is how hard it is to amend. It requires two significant steps. Step one: “An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose.” And step two: “The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification.”
When it comes to the 2nd Amendment, America’s founders blew it. And it was a mistake that would stick. The right to “keep and bear arms” is an unfortunate, and enduring, blight in America’s Constitutional constellation.
The president has four-year terms and a two-term limit. Judges sit for life, subject to impeachment for bad acts.
In his 2016 book Against Democracy, for example, Jason Brennan argues that democracy should be replaced with an “epistocracy.” In an epistocracy, the votes of people who are knowledgeable about politics count more than those of people who aren’t.
Al Gore, for example, conceded to George W. Bush in 2000 after the Supreme Court ruled for Bush in litigation surrounding the election results in Florida. While Gore deeply believed he was the rightful winner, he nonetheless stepped aside. “Let there be no doubt, while I strongly disagree with the court’s decision, I accept it,”
American politics overflows with false assertions and exaggerated rhetoric. Every. Single. Day.
But it’s stone-cold accurate to say this: Donald Trump tried to commit a coup after the 2020 presidential election.
George Washington voluntarily sacrificed his own power for the sake of his country. Donald Trump tried to sacrifice his country’s democracy for the sake of his own power.
Washington continued: “The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern … To preserve them must be as necessary as to institute them.”
The president needs majorities in both houses of Congress to pass legislation.
Congress can create, and eliminate, the lower courts (those other than the Supreme Court) and it sets the jurisdiction, or powers, of all courts through legislation.
The net impact of this design is that each branch is very powerful and influential, but none more so than the other to any material degree. The one exception is the executive branch in foreign affairs. The exigencies and complexities of foreign policy have led to more executive power than was envisioned in the Constitution.
If Congress was truly respecting the separation of powers, then impeachment would be considered a last resort, not a first impulse.
America doesn’t tolerate kings. But nor does it gain from a president under siege.
Presidents and Congress often overreach and improperly impose broad federal policies on states and localities. Recent battles over immigration highlight the dynamics. In 2017, for example, Donald Trump issued an executive order to withhold federal funding from sanctuary cities—those cities that shield undocumented immigrants within their borders from federal law and deportation.
After years of litigation, San Francisco ultimately won the case when, in 2021, the Biden administration didn’t appeal an appellate court’s ruling in the city’s favor.
Then in 2022, with a brand-new conservative majority, the court overruled Roe and sent the issue back to the states, eliminating the fifty-year-old Constitutional right to an abortion. Conservatives celebrated this expansion of federalism. Liberals seethed.
women’s reproductive choices. Like voting rights, abortion is a very difficult problem. How can every American be treated fairly when a woman’s body is at odds with a fetus’s life? Likewise, how can southern minorities be protected and—at the same time—local governments empowered? As we’ll explore further in Chapter 7, anyone who thinks there are easy answers to these hard questions isn’t grasping their complexity. The partisans look foolish in their zeal.
The controversies surrounding where to draw the line between state and federal power will never stop.
The 1st Amendment to the Constitution prevents Congress from abridging speech: “Congress Shall Make No Law … Abridging the Freedom of Speech, or of the Press …”28
As George Orwell explained in 1945, it’s the people’s ethos that matters most: “If large numbers of people believe in freedom of speech, there will be freedom of speech, even if the law forbids it. But if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them.”
The right to speak freely has been key to America’s success. It is not absolute, however. In Brandenburg v. Ohio (1969), the Supreme Court held that the 1st Amendment doesn’t protect speech “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
