Why it Matters
The Amended Constitution
An explanatory essay on the consequences of Constitutional Amendments
What could possibly have been in the minds of the delegates to the Constitutional Convention in Philadelphia in that hot summer of 1787, when they decided to count slaves as three-fifths of a person? Why did they require direct election for only one branch of the Congress, have State legislatures, rather than the voters, choose Senators, then devise a complicated Electoral College process that violated the principle of "one person, one vote" to choose the President, and yet set no term limits on any elective federal office? Why were women excluded from the right to vote? Why did they speak of only direct taxation? And just what is direct taxation? Why did they consider, and then reject a bill of rights in 1787, and then, add one in 1791? Just what were they thinking? The answer to the questions on voting—counting slaves as three-fifths of a person, and excluding women from voting, is that they didn’t! The answer to the other questions is—they did—because they wanted only limited powers to be granted to this federal government that they had devised! We will get to those earlier questions in due time. What else were they doing that clashes with our generation’s ideas about equality and authority? Does it really matter that two centuries later this framers’ document has been amended twenty-seven times? Why should we care what they might have thought about those in our generation who want to use the amendment process to do even more—to eliminate the Electoral College, mandate a balanced budget, give the President a line-item veto on laws, and even define marriage?
Even though Constitutional scholars remind us that the framers expected many amendments, they would surely have been surprised at the ones that were added. Those framers had thought carefully about these issues, and deeply. They studied historical documents—the Greek democracies, the Roman republic, the Renaissance princes, the English Parliaments’ petitions and the common law traditions, as well as the numerous colonial charters of their own American forbearers. These men were the “framers” of the Constitution, not “founders,” because they built a government out of already existing practices and documents and molded them to their particular needs. The real “founders” were the generations of the seventeenth century whose compacts, charters, petitions, and bills of rights were constantly studied and referred to in the building process. The government that they devised was certainly a republic, but it was just as certainly not a democracy. Why?
Those 1787 framers laid out carefully--and clearly--who should govern, how they should be chosen, where their authority came from, what that authority was, and what were its limits. In seven articles they crafted a form of government that has lasted 220 years. But at the beginning of that document, they first explained why a new government in the first place: the preamble to the Constitution made it very clear what were the purposes and limits of the new government. Since historical answers are found in searching for causation and making comparisons, the natural approach would be to ask: "What does the document say?"
Because we were still struggling with how to effectively comprehend the unique effectiveness of this magisterial document 200 years, the Constitution’s bicentennial celebration turned out to be in many ways a celebration of the Bill of Rights, which had become "the Constitution" to most interpreters in our generation. These ten amendments to the original Constitution were approved by the First Congress in 1791, presumably to correct the oversights of original framers—who despite their acknowledged "wisdom"—had somehow "neglected" to include protection of individual rights. Or was it to placate the anti-federalists who feared another tyrant named George? But hadn’t the members of that Philadelphia Convention debated and rejected a bill of rights? What do the documents say? Why don’t we find out?
What if we were to begin by looking at the original 1787 document--the black type. We must first recognize that the seven articles that followed the preamble/purpose laid out a method of government that was unique in human history. It was the foundation of government for, not only the founding generation, but also for our own. And while amendments have changed a number of things, their answers to who, what, where, why, and how to govern still survive substantially intact 220 years later because the original Constitution established guidelines only. Once the ground rules were established, each generation was free, within these Constitutional limits, to make its own laws. What would the 1787 method change about our present government? This exercise alone should be worth the investment of a few short hours of our time and prove worthy of some incredible conclusions—about the framers and about us. We should assess the amendments one-by-one and try to determine why each of them was necessary, both in its historical context and present consequences. Having done this, we will be much better able to understand the foundations of American government. Along the way something else, something curious, will happen. By using the historical approach, we will discover that the Constitution and the amendments were in many ways the result of historical circumstance and political solutions to contemporary political problems as they were to the essential workings of a republican government. And the fact that they were circumstantial and political is not necessarily bad. Studying the historical documents in chronological order and in an historical context will allow us to ask honest questions and get fewer knee-jerk answers. At a minimum, we will better understand the original documents and the minds of their writers—not bad for a start, although not necessarily an end in itself! Perhaps the exercise will make us less glib to condone amending the Constitution to achieve such mundane and ephemeral goals as balancing the federal budget, protect social security, protecting Social Security or victims of crime, or any of the more than three thousand other amendment proposals that have been made since 1789. Doesn’t it make you wonder what we might have missed? If the twenty-seven amendments that we already have seen as potentially harmful as the following arguments presume, what must the ideas they rejected have been like? What if we tried to make a real comparison of our current American government to historical governments in the era of the founders and the framers? What if we could see for ourselves that that our Constitution is rooted in specific historical experience? The original document and every one of the twenty-seven amendments have a context. The historical roots of the Constitution, the rule of law, America government, and its inherited institutions were central to the framers of the Constitution. They are central to understanding how our government works—and why it matters.