Franke: Constitution Day

September 13, 2019

by Mark Franke

As he was leaving the Constitutional Convention for the last time, a citizen asked Benjamin Franklin what the delegates had given her and her fellows. “A republic, if you can keep it.”

To be precise, what Franklin and his colleagues had given us was a document that serves as the philosophical and practical foundation for a system of government. This republic, which we as Franklin’s posterity are charged with keeping, can only be kept if the seminal document . . . the Constitution . . . is itself kept.

This was no easy document to write, in spite of the fact that the true “Greatest Generation” had gathered in Philadelphia to draft it. It was an exercise in compromise, in spite of the often bitter debate that preceded such compromise. And it was a glimpse into the future, in spite of the fact that the delegates were solidly grounded in their own here and now.

The Constitution was controversial even then. Anti-federalists objected to the supremacy of the national government over the states. They were quite exorcised over the preamble’s beginning with “We the people” instead of establishing the new nation’s basis as a compact among the states.

Federalists won the day as eventually all 13 states ratified the Constitution, thereby choosing to join the new union.

The federalist vision, that the document would serve as the substance of a new nation with unlimited prospects, was tempered by an understanding that the Constitution offered strict boundaries on the government’s power while at the same time being flexible enough to promote, rather than restrict, unforeseen growth.

Even though he is not given credit for his influence, John Adams’ philosophy served as the basis for the national government’s structure. He promoted the idea of a three-part government based on the British model of king, lords and commons. We have a President, Senate and House of Representatives designed to represent, in reverse order, local interests, the states and the nation at-large. We’ve strayed from much of Adams’ vision but his framework stands.

We have a great divide in the country today. Actually, we have way too many divides but one that underlies many of the others is how to interpret the Constitution. One side argues that the Constitution is a “living” document, one that must evolve over time as society changes and new challenges arise. The Founding Fathers, according to this line of thinking, could not possibly have anticipated the complexities of the future so their language is dated and must be rescued from its era.

The other side, usually called originalism, disagrees. This viewpoint holds that the Constitution is a document of words, words that have specific meaning both then and now. The words mean what they say, what their authors meant them to say. If the meaning must be changed, then the amendment process is the appropriate way to address that. Twenty-seven amendments are attestations to the foresight of this approach.

As a conservative with libertarian tendencies, I agree with the originalists even if I did not do an adequate job above explaining their philosophy. To think that we, and by we I mean a society driven by postmodern cultural conceits, know better than the Founding Fathers is not just arrogance but hubris. “Whom the gods would destroy, they first make mad,” a quote thought to have originated with the ancient Greeks, seems apropos here. With due respect for my many friends who disagree, I can’t help but think it madness to believe we are smarter than that prescient group of 55 delegates locked in a hot chamber throughout the summer of 1787.

We must keep in mind that our nation was founded on the principle of natural rights as forcefully stated by Thomas Jefferson in the Declaration of Independence. The 9th and 10th amendments make clear that our liberty does not flow from the Constitution but quite the opposite. We voluntarily surrender a limited amount of liberty for the common good. This is our Anglo-Saxon heritage, that governmental power flows upward from the people with defined limitations on its use. It saddens me that so many willingly jeopardize this liberty simply to achieve short term, issue-based victories. Political expediency has become the watchword.

In a recent Wall Street Journal interview, U. S. Supreme Court Justice Neil Gorsuch cited two rules he teaches his law clerks. I paraphrase: First, don’t make stuff up. Second, when being pressured by political factions to decide a case as they demand, remember rule number one. Benjamin Franklin would agree.

Mark Franke, an adjunct scholar of the Indiana Policy Review, is formerly an associate vice chancellor at Indiana University-Purdue University Fort Wayne.


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