Op-ed: The Rule of Law
by Andrew Horning
Orwell was right. “Every generation imagines itself to be more intelligent than the one that went before it, and wiser than the one that comes after it.”
So it’s natural that people today (perhaps Mayor Pete Buttigieg) think our nation’s founders were not just slaveholders and sexists, but also idiots.
However, before we eliminate the Electoral College, grant illegal aliens the legal right to vote, lower the voting age again, try to push authoritarian socialism and global domination as good ideas and censor any alternative views, let’s humbly consider that human societies have a 100 percent eventual failure rate. And perhaps we should review what each of our increasingly intelligent and wise generations have already dismissed from the founders’ intents before we flush the rest.
The whole point of the state and federal constitutions was to keep government local, and keep it on a leash. Voters were supposed to have all the information necessary to make wise choices, and those choices were to be in plain sight and locally accountable. No secrets, no off-menu selections.
Our founders almost universally feared the mob-thinking of democratic processes, and the inevitable centralization and concentration of power that would ensue should citizens be denied information or choices by a ruling elite.
Voting was never about hiring politicians. Rulers hire themselves if you let them. Our elections were intended as a means of peaceful revolution, so that we didn’t have to have the other kind again. A vote is a weapon of self-defense, not a poker chip in a game of odds.
Similarly, the early militia system, as opposed to a permanent professional standing army, was not only seen as the most potent self-defense, but also a deterrent to foreign war, since every voter would have to personally participate in any violence our government desired. Only congress was empowered to declare war, because we could vote away the House reps every two years. Senators were supposed to be appointed by the state legislatures as safeguards on state authority, and states controlled the militia until and unless an actual declaration of war was enacted.
This is important. The U.S. Constitution’s Article 2, § 2:1: “The President shall be Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States.” And the President was called into that service only by a congressional declaration of war.
Until and unless that happened, Article 5, § 12 of the Indiana Constitution applied: “The Governor shall be commander-in-chief of the armed forces, and may call out such forces, to execute the laws, or to suppress insurrection, or to repel invasion.”
So we were to have a republic comprised of sovereign states and empowered individuals, not an almighty central government restrained only by majority votes, because as John Adams pointed out, ” . . . democracy never lasts long. It soon wastes, exhausts, and murders itself.”
Texas constitution’s Article I, § I says it well. “Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.”
But we significantly lost that republic during and after the Civil War, when many state constitutions were amended or newly drafted to transform them into administrative sub- units of Washington, D.C., or even worse. This is from the Nevada State Constitution:
“But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court [my emphasis] of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States. . . . and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.”
That’s not Patrick Henry talking there.
We formally lost the citizen militia in 1903 with the Dick Act, which “federalized” the militia. We lost the whole point of bicameral congress in 1913 with the 17th Amendment, when state governments lost their representatives in the federal government. By the 1930s, leaders as diverse as FDR, Prescott Bush, and W. E. B. DuBois heaped praise on the fascist despots of Italy and Germany, and made authoritarian national socialism, “progressive.”
In 1947, the National Security Act created the Central Intelligence Agency, terminated constitutional declarations of war, and overturned most of the founders’ strongest protections against corruption and eternal warfare.
Also around that time and through the 1970s the rapid expansion of Primary Elections started legitimizing “Major Political Parties” as only two private clubs — the Democratic and Republican Parties. All independent and so-called “Third Party” candidates faced increasingly difficult ballot access and election-related rules that didn’t apply to members of the favored clubs.
Until the 1936 presidential election, the name of each presidential elector candidate appeared on the Indiana ballot. However, the Indiana Code prohibits the names of the presidential elector candidates from even being listed, let alone being chosen by those who’ll have to live with the results of the electors’ decision. Only political parties and candidate committees can choose Indiana’s eleven electors.
And since each state’s number of electors is derived from census numbers, you can see why many want to not only let illegal aliens vote, but also count all non-citizens as citizens in the census for the purpose of both more power in the U.S. House of Representatives, and more electors; like the generally misunderstood “three-fifths” rule that gave southern states unfair representation in the early U.S.
Many defenders of the Electoral College believe that this is the key purpose of the college — to give each state fair standing in presidential elections. But the true purpose is much further from the current collective mindset than even that.
While under the banner of today’s “democracy,” the majority of votes or the greatest biomass of voters is seen as the equivalent of wisdom, presidential electors were intended to reduce the influence and unwise decisions of the most ultimately powerful, but fickle and uninformed body politic — average voters. By definition, of course, half of us are below-average intelligence, wisdom and knowledge, with many others comprising the majority probably misinformed, and unlikely to make the best choices for the most powerful single person in U.S. government.
Ouch. That sounds pretty insulting to modern ears, no doubt.
But judging by our debts, endless wars, increasingly hostile internecine and tribal divisions, and obviously destructive corruption and espionage, maybe the founders weren’t the idiots.
I’m pleased that our young have mostly stopped eating Tide Pods. We can learn. I suggest we learn what earlier generations considered intelligent, and wise.
The constitutions, state and federal, as imperfect as they may be, are not about procedural minutiae, or partisan games. They are the practical design for individual freedom, security and prosperity, proven to be better than anything any nation had signed into law before or since. Our current events prove that our founders, however flawed as people, were far more prescient, intelligent and wise, than wrong.
Andrew M. Horning is an adjunct scholar of the Indiana Policy Review Foundation who lives in Freedom, Ind. The Republican candidate for the 7th Congressional District in 2004, Horning writes frequently on classical-liberal topics and is an expert on federal and state constitutions.