The American Vice Presidency… Graveyard of the Constitution

America’s first Vice President, John Adams, described the office as “the most insignificant office that ever the Invention of Man contrived or his Imagination conceived”. When Daniel Webster was offered the nomination of Vice President, he said “I do not intend to be buried until I am dead”. Perhaps the most succinct assessment of the office was given by Texan John Nance Garner, a former and powerful Speaker of The House of Representatives and Vice President under FDR for two full terms, who claimed that the office wasn’t “worth a bucket of piss”.

In many ways, the office of Vice President of The United States can be seen as the most singular indication of the noble goals and yet practical failure of The United States Constitution, and its fate was sealed before the 19th Century even began. While there might have once been a chance for the Vice Presidency to have been an office of viable contribution to the functioning of The United States’ government, there are five key moments in early American history which, I believe, combined to relegate the office itself to impotence and insignificance only moderated by either the good will of any particular President or by the vacation of the office of President and subsequent elevation of a Vice President to that office. The first of these moments was the creation of the office itself (1787).  The idea was that it would be held by a major statesman, the candidate for President who came in second and who would, for the greater good of his nation, join the administration of the victor.  Yet within this idea was still recognition of the reality of opposition and the understanding that you would not want to give the primary challenger of the President any real power with which to work against the Chief Executive.  Thus was an office created in which the primary requirement was, apparently, to have a pulse. 

While, primarily because of their revolutionary credentials, Washington’s Vice President, John Adams succeeded him as President, and then Adams’ Vice President, Thomas Jefferson succeeded him, the office of Vice President has not been seen as a natural stepping stone to the Presidency.  After Jefferson, and after the adoption of the 12th Amendment to The Constitution (which provided for the direct election of the Vice President) the only Vice Presidents who have been elected to be President WITHOUT FIRST having already assumed the office through the death or resignation of the previous holder of that office have been Martin Van Buren (1836), Richard Nixon (1968), and George H. W. Bush (1988).  Furthermore, of those three men, Richard Nixon was not the current Vice President when he was elected, having lost to John Kennedy in 1960.  Thus, the two men after Jefferson who were elected to the office of President while holders of the office of Vice President served only two terms between them for a total of eight years, and the three men combined for 4 terms and less than 14 years out of the whole of the history of The United States.  By contrast, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams and James Buchanan (the 3rd, 4th, 5th, 6th and 15th Presidents) all served as Secretary of State and served as President for eight terms and a total of 32 years, while several others served as Ambassadors or envoys to other sovereign nations.  So, we can see that diplomatic credentials have been seen as better qualifying a candidate to be President than serving as Vice President has been.

The second moment in history’s conspiracy to insure the insignificance of the office of Vice President was George Washington’s view that the office was a part of the Legislative branch of the government rather than part of the Executive branch (1789). As a result, Washington not only did not include Adams in his cabinet meetings or consult him very frequently on matters within the Executive Branch. He believed, in fact, that he was not ALLOWED to do so as part of The Constitution’s requirements for separation of powers. It is impossible to minimize the influence Washington had on establishing the precedents and operational functions of The United States government as established by The Constitution. If any man in history had it in his power to make from nothing a relevant constitutional office of the Vice Presidency, it was Washington; but he did not do so. As aware as the Revolutionary generation was that they were making history, they seemed to have had no awareness of the importance of the precedents which they were establishing every day as part of a continuity of history which would last for centuries.

In many ways, they were making it up as they went along and the openness of the Experiment they had initiated would have permitted them to follow almost any vision that they could have put into practice.

The third moment in this sorry tale was the decision of The Senate to forbid the Vice President from being part of the debates and deliberations of their body (1789). We can never know how much of this decision was inspired by the personal rancor and dislike felt by many members of The Senate for the person of John Adams and how much was an inevitable course which would have been followed no matter who had been The Senate’s first presiding officer.

In the end, it makes little difference. While Washington did not consider the Vice President a member of the Executive Branch, The Senate did not consider the officeholder a contributing part of their august body or, therefore, of the Legislative branch of government. While a man with more people skills and a more stable temperament might have been able to make the Senators accept the Vice President as a full member of The Senate, John Adams was not that man. As Adams wrote to his wife Abigail, “It is to be sure a punishment to hear other men talk five hours every day and not be at liberty to talk at all myself, especially as more than half I hear appears to me very young, inconsiderate and inexperienced.” If Washington had made the Vice President insignificant as a member of the Executive branch, The Senate itself made him insignificant as a member of the Legislative branch. All of this, of course, reaches new heights of irony in the person of our former Vice President, Dick Cheney, who has used this ‘confusion’ to declare himself the beneficiary of the rights and privileges of both branches while, at the same time, free of the obligations or restraints upon either branch. The burden of the fourth moment in our tragic history of the establishment of the role of the Vice Presidency falls squarely on the shoulders of the second holder of that office, Thomas Jefferson (1797).

Adams, for all of his faults of personality, truly cared for what was best for the nation he served. He did not plan to treat Jefferson, as Vice President, as he had been treated himself (or, as Tom Lehrer put so humorously in his satirical song about Hubert Humphrey and the treatment of Humphrey as Vice President by Lyndon Johnson as President, “I’ll do unto you as they did unto me.”).  As Joseph Ellis tells so well in his Pulitzer Prize winning book ‘Founding Brothers’, Adams fully desired to work with Jefferson to create a bipartisan administration which utilized both of their talents and skills (Chapter Five: The Collaborators). 

He wanted Jefferson to be a functioning member of his cabinet and an active participant in foreign policy efforts. Jefferson, influenced greatly by the advice of James Madison, chose to be a party man and watch the Adams administration fail without him. Jefferson, at this time, chose the good of his party over the good of his nation. After Adams’ desire to give the office a ‘place at the table’, it wasn’t until Warren G. Harding took office in 1921 that a President again made the choice to include his Vice President in his cabinet meetings, and it wasn’t until Richard Nixon’s service under Dwight Eisenhower that a Vice President was given a substantial and public role by the President but, in all cases, up to and including the present, the role and power of a particular Vice President has been dependent upon their President to give it to them.

If the damage done to the office of Vice President was not already irreversible by the election of 1800, that election itself ensured that it was permanent, and the blame for it can be placed on the personage of Aaron Burr. If one wants to make the case that the Adams’ Vice Presidency was not a standard to judge by because of the newness of the office, or that the Jefferson Vice Presidency cannot be used because he was of an opposition political position to his President, then there is no excuse for the damage done to the office by Burr before he was even inaugurated, damage so great, in fact, that the first substantive change to The US Constitution was made to prevent the circumstances from ever again even being possible through the adoption of the 12th Amendment. For the election of 1800, the supporters of Jefferson and his Republican / Anti-Federalist movement conspired to maneuver the election so that their candidates would end up holding the offices of both the Presidency and the Vice Presidency. While they succeeded in the goal of having all of their electors vote for both Jefferson and Burr, they apparently never considered the ramifications of this actually happening. They believed that somehow, without any need to orchestrate it as well, some random elector would cast his vote for Jefferson but not cast their second vote for Burr. The conspiracy, however, was too well planned and the soldiers followed their marching orders without deviation…and Jefferson and Burr ended up exactly tied in the electoral vote totals.

At this point, a good party man would have fallen into line and worked to finish what had been started, but Burr was an opportunist whose personal desires completely overshadowed any belief he may have had in the greater good. When the election went to The House of Representatives, Burr fought to win the Presidency for himself. He almost managed to pull the feat off as it took 36 ballots in The House before Hamilton intervened and one member chose to abstain. Well, after that, what President would trust the man he was stuck with as Vice President? And so, Burr alienated himself from any role in Jefferson’s first administration and The Constitution was changed…and changed VERY quickly.

The new nation went through only four elections, three administrations and 12 years before the first substantial flaw in the design of the governmental structure of The United States had to be addressed. 46 men have been dumped into the graveyard of The Constitution, including 2 men who each served under two different Presidents (George Clinton under Jefferson and Madison, and John C. Calhoun under John Quincy Adams and Andrew Jackson). Except for the ones who eventually became President themselves or who have served in a person’s own lifetime, how many people can name even one of them? The Vice Presidency is a unique office with a unique role in government. If we want evidence of the lack of experience which burdened the men who created The Constitution, all we need do is look at the Office of The Vice President of The United States. However, if we do look at it, we will have done more than most people ever do.

P.S.– It might also be of interest, for anyone who wants to consideration how truly UNimportant the office of Vice President has been to our nation over the entire course of its history, for me to point out that, while we have never had any real period without a President since Washington first took the oath of office in 1889, between the years 1812 (when the office was vacated upon the death of Vice President George Clinton) and 1974 (when the office was vacated by the elevation of Vice President Gerald Ford to the Office of President) (a period of 162 years), there were 18 different times when we were without a Vice President totaling more than 426 months (35.5 years, an average of 23.666 months per vacancy). This includes two periods when the office was vacant for 47 months (out of a 48 month term of office), but does NOT include any periods when the holder of the office just left Washington and ignored his role in government (as, for example, Richard Mentor Johnson did during Van Buren’s administration).

As an indication of how little impact the absence of a Vice President has meant to the functions of our government, I would simply ask how many of you reading this have ever even wondered just how often the office has even been vacant because there WAS no holder of the office?

As a point of useless trivia from an infomaniac, did you know that the first Vice President to die in office (George Clinton) died about a year before the end of his second term (Clinton had served one term as President Jefferson’s second Vice President and his second term as Vice President was consecutive to his first when he was elected to be Vice President under Jefferson’s successor, President James Madison, for Madison’s first term.  For Madison’s second term of office, he ran and served with Vice President Elbridge Gerry, who THEN proceeded to die in office after about a year and a half into his term.  As a result, President James Madison served with a different Vice President for each of his two terms in office and neither of them lived to complete their own terms.

Rhys M. Blavier
Romayor, Texas  

“Truth, Justice and Honor… but, above all Honor”

© copyright 2008 by Rhys M. Blavier

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Thank you for reading this article. Please read my other articles and let me know what you think. I am writing them not to preach or to hear myself think but to try to create dialogs, debates and discussions on the nature of our government and how we can build upon and improve it based on what we have seen and learned over the course of the 225 years of The American Experiment.

HOW I THINK THE CONSTITUTION CAN BE FIXED (Part I: The Problem)

I have said many times over many years that I think that The Constitution of The United States is broken.  I have recently been asked to give specific examples of what I mean when I say that.  This is, of course, a very fair question to ask.  To answer it, however, I will both give some background information to help explain WHY I feel the way I do on this subject (which is the topic of this first part of this article) and, as I don’t think that it is helpful when people say what they think is wrong with something without actually offering any possible solutions to the problems that they see, I will also provide specific examples of WHAT I would specifically suggest to fix these perceived problems (which will be the topic of the second part of this article). I will do this by primarily suggesting how I think specific aspects or parts of The Constitution can be improved to better accomplish the goals of the founders.  Now, with my suggested changes, I will not be offering specific wordings for those changes.  I believe it would be pre-mature and a poor process to do so within the scope of this article.  I think that that there needs to be some agreement first about what changes should be made, then establish specific goals and objectives for those changes, as well as agreement on why a specific change should be made and what its purpose would be, and THEN, work on the actual wording to be forever enshrined in The Constitution.  For me, then, to actually propose specific wording changes at this stage in the process would be pre-mature.  In addition, I am rather… verbose… and I personally think that such wording needs to be as concise as possible.

Let me start by telling my readers why this topic interests me and why I feel I am qualified to write an article on this subject.  When I was a 16-year old kid in high school, I was able to get involved in several college student organizations at Texas A&M University.  This was a very unique period at A&M in the mid-1970s, which is what made this possible.  As a high school kid, I was still an outsider in those groups.  This allowed me to be an observer of the organizational group dynamics.  In one of the organizations, after I had been in it for a couple of years, there was a huge internal crisis which literally tore the organization apart.  This was the first time I ever got to experience what I came to call the ‘second generation effect’.

It was for this group that I wrote my first constitution, a 25-page thing that no one ever got to see because when I had completed it, it was stolen before I could present it.  In retrospect, it probably wasn’t very a very good constitution, although I do not have a copy I can read to verify that.  What writing it began for me, however, was hobby of designing fictional organizations and writing constitutions for them that lasted well over a decade.  I would do this in the same way that some people do crosswords or jigsaw puzzles and, to me, the process was, and is, very much a logic puzzle.   Along the way I have written five to seven actual constitutions for real organizations and, because of what I watched happen in those groups I was part of while I was in high school discovered a desire to help other people create better organizations themselves. I eventually earned a Master’s degree that would allow me to work as a student activities / college union professional, which also provided me with the means to collect constitutions from all kinds of organizations from many different locations to study.  This has allowed me to see many commonalities, both good and bad, among those documents and helped me to formulate a guiding philosophy for designing and writing constitutions for ANY organization.  That philosophy is:

“You can NOT, by definition, plan for the unexpected… but you are a damn fool if you do not prepare for the predictable.”

In case anyone is interested, by the way, I think that my next project along this line will be to try to incorporate a city in the unincorporated area in which I live and try to create an actual ‘laboratory of democracy’.

The second generation effect is when an organization which has been created by people with a common understanding of why they created the organization themselves begins to have people who were NOT part of the organizational creation process reach a level where they begin to have a greater controlling influence on the organization than those who did create it.

When an organization is created, those who created it usually have a common understanding of the principles and processes they expect the organization to operate by.  Because of this mutual understanding, they are generally very minimalist about what they put into the organization’s founding document(s) or constitution because they think that more is unnecessary for the very fact that all of the original members have a consensus about those principles and procedures.  As a result, they leave those principles and procedures unspecified in the organization’s founding document(s).  Even where these people have differences with each other, they are actually bound together by their mutual understandings about the organization.  They simply don’t see how others who will come along later will not share those bonds and will not view the organization in the same way that they do.  This is what results in constitutions and founding documents which are what I classify as the ‘we create this group, and we will do things and we will be friends’ category of constitutions and founding documents.  This is also what I call the ‘first generation effect’.

So, why are the ‘first generation’ and ‘second generation’ effects important concepts when talking about our Constitution?  It is very simple.  I think that the founding fathers operated under the first generation effect when they wrote The Constitution.  Their common experiences with the separation from Britain, The Revolutionary War, and The Articles of Confederation created a common bond which unified them on a subconscious level.  Even with their many disagreements and differences, they were still bound to each other by what they had experienced in common with each other.

This period saw one of the most remarkable collections of great men and great minds in one place and one period of time in all of human history.  I still can’t figure out if history gave us this moment and gathering of mental giants, or if the moment and gathering of mental giants gave us history.  Which one is responsible for the other, I frequently wonder?  The result of their gathering in Philadelphia in 1787, The Constitution of The United States, is an amazing and awe-inspiring document.  In fact, I think that it has single-handedly shaped where the world has moved since it was created more than any other single document, philosophy, event, or person since then.  The downside of what they did in Philadelphia is that they had no other real historical examples which they could study, other than their experiences under The Articles, to see what would work and what wouldn’t.  They pretty much only had theories and ideas to use.  They also came up with a minimalist document that left much more unwritten and which would rely on their common understandings with which to fill in the gaps than it actually specified about the operation of the new government which they were creating.

In 1991, I was hired for my first job as a Director of Student Activities at a small, private liberal arts college in Illinois.  At this time, the Student Activities Board was an unconstituted committee of the school’s Student Forum.  I decided that the SAB needed to be a separate organization with its own constitution and I created a committee of students, faculty and staff to help design the organization and help write it’s constitution.  The Forum’s advisor was also the school’s government teacher and ‘expert’ on the U.S. Constitution.  One day, in passing, she stopped me and asked why the document I was trying to create needed to be as long as it was.  After all, she pointed out, the U. S. Constitution was only 4,543 words long (honestly, I remember it with her saying it was only 1,458 words long, which is the length of The Declaration of Independence and not of The Constitution but I will give her the benefit of the doubt by assuming she said the correct total).  I responded by telling her “Yes, and it isn’t a very well written document.”  She got very angry and, without allowing me to explain to her what I meant, she stormed off.  She never again spoke to me civilly and I was terminated at the end of the school year WITHOUT getting my SAB constitution ever publically discussed or voted on, much less passed.

When I said that The Constitution was not a very well written document, I meant no insult to it or to the great men who wrote it.  I meant simply that they didn’t have the advantages of history which we have upon which to base their document.  NOTHING is ever as good as it can be on a first attempt (look at how much better The Constitution was than The Articles were), and distance is needed to see how things work (or don’t work) as desired, and what can be done to improve it.  I think that this is a necessary evolutionary process in any long standing organization.  I also never got to explain to her my theory of the second generation effect or how I think it illustrated the fundamental flaws in the document.

I think that there are many reasons that more things were not spelled out better in The Constitution.  One of them was the first generation effect of common understanding and fellowship.  Another was that the Federalists, under the leadership of Alexander Hamilton, did not WANT things to be spelled out better so that they could use the ambiguities of the document to argue that it said and meant things that it clearly didn’t.  As is common in history, those of a more liberal ideology will concede things to their political opponents in order to create a consensus while those of a more extreme conservative ideology will simply take those concessions as wins for their side and an indication of weakness for the other side, and will then proceed to try to use that point as a baseline from which to further advance their cause at the expense of those they oppose.  A defining characteristic of a liberal personally is individualism and efforts to strive for common agreement and consensus, while a conservative personality is more commonly seen as wanting unification among those who agree with them for the advancement of their agendas, suppression of individual internal disagreement and accumulation of power for their group.  (Please look for a future article to be written by me on the subject of groupthink, conformity and shame theory to further explain this claim.)

By the 1820s, the first generation of those who created our American constitutional government was mostly gone from the scene and the second generation was in control.  As I have personally seen in all too many smaller organizations, the second generation, not having had a hand in giving ‘birth’ to an organization does not feel limited by the voluntary constraints by which the members of the first generation operated.  A key aspect of the second generation effect is the rise of members who are more interested in their personal power than in the greater good of the organization.  These power-seeking second generation members will also look for weaknesses, flaws, loopholes, omissions and ambiguities within the governing procedures and document(s) of an organization to see how they can be utilized to advance their personal power or parochial interests at the expense of the greater good of the entire organization.  I also do not know how to test it, but I theorize that it is the very weakness and flaws in an organization’s founding documents which ALLOW the second generation effect to occur.  The better that things are clarified, and potential problems identified and provided for, the longer an organization can go on with unity and consensus.  I believe that it is the failures of the first generation to study more closely when they create their organization and better provide for potential problems in the future within their founding documents that is the cause of the second generation effect, and not the fault of those in the second generation.

In American constitutional government, this was seen in the rise of a professional political class; party politics holding dominance in the elected branches of government; party and regional (state) concerns being held as being more important by those elected officials than the greater good of the entire nation; and a desire for gaining and using personal power bases in order to control the functions of government at the expense of those who do not help the person wielding that power.

One last aspect of the generation effects is a blurring of the lines between and the convergence of common misunderstandings of the differences between and meanings of both ‘power’ and ‘authority’.  Contrary to common belief, the two ideas do not have the same meanings and, in fact, are completely separate concepts from each other. This is why they are both used together… power AND authority, like assault AND battery.  Authority is the RIGHT to do something.  Power is the ABILITY to do something.  While power and authority might reside together in some cases, it is much more common to have an exercise of POWER by a person or group who do not have the AUTHORITY to do what has been done, or a group or person who has the AUTHORITY to do something but does not have the POWER to accomplish the desired action (much like when the Supreme Court ruled against Andrew Jackson regarding the Cherokee Indian treaties with The United States and Jackson, supposedly, commenting in response that “John Marshall has made his decision, now let him enforce it.”)  Andrew Jackson, Henry Clay and John Calhoun are all classic examples of second generation personalities.

Part II of this article will deal with the actual flaws, weaknesses and omissions which I see in our Constitution and my personal suggestions for correcting them.

 

Rhys M. Blavier

Romayor, Texas

“Truth, Justice and Honor… but, above all, Honor”

© copyright 2009 by Rhys M.  Blavier
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Thank you for reading this article.  Please read my other articles and let me know what you think.  I am writing them not to preach or to hear myself think but to try to create dialogs, debates and discussions on the nature of our government and how we can build upon and improve it based on what we have seen and learned over the course of the 225 years of The American Experiment.

WE MUST AMEND THE CONSTITUTION IMMEDIATELY OR AMERICA IS DOOMED… DOOMED, I TELL YOU, DOOMED!

We need to amend the Constitution to ban gay marriage because people getting married to show their love of each other is an abomination… and because the idea of two guys or two ugly chicks making out with each other is just gross… and we can’t stop thinking about what it would be like to try it! We need to amend the Constitution to ban the burning of the American flag except by the Boy Scouts… and anyone who wants to dispose of a flag the way it is supposed to be disposed of, never mind that you can’t make people respect a symbol by passing laws which order them to We need to amend the Constitution to ban abortion because the wealthy can ALWAYS find doctors to take care of THEIR wives, mistresses and daughters! We need to amend the Constitution to allow school prayer and the reading of the Bible in school even though Jesus said “Do not practice your piety in public.”! We need to amend the Constitution to permit the use of the word ‘God‘ in the Pledge of Allegiance and the national motto because if WE are going to suck up to him, we damn sure want everyone else to be required to, also! We need to amend the Constitution and we have to amend it NOW, because the sky is falling on our heads… AAAAHHHHHH!!!!!!

For all of the ideologues who think that amending the Constitution is the appropriate way to enshrine their particular prejudices and passions, I want to ask you a question. Very simply, “Have you ever actually read The Constitution?”

The Constitution is a relatively simply document. Its length is only 4543 words, which isn’t all that much longer than this article. One key thing that is important about the Constitution is not what it says, but what it does NOT say. The Constitution does NOT say anything about social rules or the moral conduct of ‘we the people’ of The United States. The Constitution is an owner’s manual of how to operate our government. It does not tell its citizens how to live their lives. In fact, with the exception of our disastrous foray into social policy with the 18^th Amendment, which gave us both prohibition AND well financed organized crime, there is nothing in the Constitution, the Bill of Rights or any subsequent amendment which deals with dictating social or moral behaviors or beliefs to the American people.

Nowhere in the Constitution is a single word which even speaks to specific imposed restrictions on the rights of the citizens, unless you count treason, insurrection, piracy, counterfeiting, malfeasance in office or other such defined crimes as rights which are denied to ‘we the people’. It doesn’t even speak to obligations of ‘we the people’ TO the government, though it does speak of obligations which the government has to ‘we the people’. In fact, other than talking about issues such as voting, or rights before the courts, the Constitution itself barely even deals with individual citizens.

The Constitution itself does not say anything about WHEN, WHY, or FOR WHAT REASONS it should be amended. THOSE questions are left up to the citizens and the legislators of The United States to answer. Article V of The Constitution, in its entirety, says:

“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

Thus, whenever someone raises the issue of amending the Constitution, the first question that should be asked is: “Is the issue itself appropriate for inclusion?”

Amending The Constitution is, and was intended by the framers of The Constitution to be, a VERY difficult and VERY time consuming process. It is not supposed to be something that happens very often or for trivial reasons. To see how meaningless a constitution becomes when it can be easily and frequently amended one need only look at the state constitutions of either Texas (amended at least 632 times in 136 years [although Texas voters subsequently rejected at least 176 of them after our legislature passed them]) or Alabama (at 357,157 words it is about 40 times longer than the US Constitution and even three times longer than the longest national constitution of any sovereign nation in the world India, whose constitution has 444 articles, 12 schedules and 94 amendments, with a total of 117,369 words and is, unbelievably, an even worse document than the state constitution of Texas, which has been amended at least 798 times the last amendment was #799, but even the Alabama legislature couldn’t even keep track of how many there were and Amendment #693 doesn’t even exist in 108 years most of those amendments affecting only single individual counties or even cities, or regulate such minutiae at the salary as the Greene County Probate Judge).

Amendments to state constitutions, such as the one now being called for in Iowa by those scared to death by the idea of two people of the same sex even holding hands, often also seem to ignore the fact that the US Constitution takes precedence over them and has this little thing known as Article IV which includes such provisions as the Full Faith and Credit Clause (Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”) and the Privileges and Immunities Clause (Section 2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”).

As difficult as it is to amend the US Constitution, it is therefore necessary and proper for both the Legislative and the Judicial branches to interpret and even expand on the meanings of both The Constitution AND of its 27 amendments. Please note, however, that while the very names of those two branches tells us of THEIR roles in that process (to ‘legislate’ and to ‘adjudicate’), no such power is given to the Executive branch, whose task is to ‘execute’ the laws and provisions of The Constitution and the other two branches. This was yet another aspect of our Constitutional government which was not understood by King George (Bush) II or his cronies in crime. Many people who want to use legislation (either federal or state) to counter or go around provisions of The Constitution, however, also show their ignorance of the document as Article VI specifically states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The Constitution of the United States was not conceived or written to tell ‘we the people’ how to live their personal lives or even to place burdens on them towards their Society or their government. It does, however, tell the government how to operate and imposes obligations on it towards ‘we the people’. The Constitution is not a downward directed document, written on the mountain and handed down to ‘we the people’ by a supreme being who must be obeyed. The Constitution was not written by the government to ‘we the people’. The Constitution was, instead, written by ‘we the people’ to tell their government what limits and restrictions are placed upon IT, and what powers and authority are granted to it by the citizens who agreed to be governed by it. I wish people would realize that when they think about using The Constitution for shaping American society according to their own preferences or to try to tell people how to live or what morals they should adopt based on their own prejudices, bigotries and beliefs.

So, if The Constitution focuses on the operation of our government rather than on the behaviors of its citizens, where does the whole debate about our rights originate? The framers of The Constitution believed in ‘natural rights’, the idea that people, by their very nature, HAVE (not ‘are given’, but by birth ‘have’) certain rights which precede the establishment of any government. When The Constitution was written, there was a huge debate about even listing the rights of the citizens of The United States because some feared that the very fact that some rights were enumerated within The Constitution would mean that there would be those who would later argue that rights which were NOT enumerated in The Constitution were not ones which the citizens would have. In Federalist #84, Alexander Hamilton asks “Why declare that things shall not be done which there is no power to do?” and writes that a “bill of rights is not only unnecessary but even dangerous” for that very reason. James Madison told Thomas Jefferson that “I conceive that in a certain degree … the rights in question are reserved by the manner in which the federal powers are granted.” The fear of many was the very idea that enumerating ANY rights within The Constitution be interpreted by any moron as meaning that citizens only had rights BECAUSE of The Constitution. The very intention of the framers was to emphasis that the entire purpose of creating The United States was to protect the rights of the citizens and that the very idea that rights had to be ‘given’ TO ‘we the people’ was monarchical and anathema to everything they believed in and stood for. Connecticut’s Roger Sherman, in his own proposed draft of a Bill of Rights says that “The people have certain natural rights which are retained by them when they enter into Society.”

Much of the concept of natural rights which the framers believed in came from John Locke, the great philosopher and theorist of natural rights. He believed that the primary justification for even founding any government was specifically to make those rights more secure than they would be in a state of nature (a Society with NO government). Thus, the very reason to join together IN a governed Society is to provide ‘we the people’ protection of those rights by being part of a collective, governed Society which is not present in a lawless Society, in which the strong are able to prey on the weak and take those rights away from ‘we the people’. This is where the framers showed their true genius and foresight by giving us the 9^th and 10^th Amendments to The Constitution, the “if we forgot something, it’s covered, also” amendments.

The 9^th Amendment, in its entirety, states that:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The 10^th Amendment, in its entirety, says that:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

These are both very interesting Amendments. The 10^th is usually used to support arguments which advocate State’s Right’s against federal power by people without an awareness that States do not have rights, only powers (as specified in the literal wording of the Amendment), and that those powers are granted by the citizens. It is usually ignored that the 10^th tells us that, in addition to having rights, as provided for in the 9^th, ‘we the people’ ALSO have power. By the very wording of The Constitution, our government only has certain powers and authorities (specifically spelled out within The Constitution), while ‘we the people’ have rights IN ADDITION to powers and authorities. While there has been a lot of talk about the 10^th Amendment, especially since the end of Reconstruction in The South, and since the movement towards recognizing the civil rights of ALL citizens in the 40s and 50s, the 9^th may very well be the most ignored part of the entire Constitution. There even seems to be more case law that is based on the 11^th Amendment (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”), which was passed in response to one single Supreme Court case in 1793 (Chisholm v. Georgia), than there has been based on the 9^th. Most of the court cases which would seem to be obvious ones about the retained rights and powers of the citizens under the 9^th and 10^th Amendments, such as Roe v. Wade, typically hinge on arguments which use the provisions of the Section 1 clauses of the 14^th Amendments regarding Due Process and/or Privileges and Immunities (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”) as their foundations.

Why IS the 9^th Amendment so rarely raised, utilized or argued in American Courts? I think it is, very simply and fundamentally, because both the courts and our government are afraid of it. If we followed the literal provisions of the 9^th Amendment, both the courts and our entire government would have MUCH less power over the citizens than they would like. If we observed the provisions of the 9^th Amendment, the citizens would never have the burden to prove that they have certain or specific rights, the government and the courts would have the burden to prove that they DON’T. The party on whom the burden of proof rests has an MUCH more difficult case to make than the one which has the presumption of being correct or innocent. No government in history has ever wanted to bear that burden when they are challenging their own citizens, and courts are a function of government. Into this fray go those who advocate that The Constitution favors the government over the governed. One of the most prominent advocates of reading The Constitution as only protecting enumerated rights was Judge Robert Bork and his famous ‘inkblot’ interpretation of the 9^th Amendment. About the beliefs held by Judge Bork and those who interpret The Constitution using the same flawed concept of ‘originalism’ which he uses, that the only rights belonging to the citizens are those which are specifically spelled out in The Constitution and that any other ‘discovered’ rights are illegitimately ‘created’ by the courts, The Oxford Companion to The Supreme Court of the United States says:

Yet this skeptical view of unenumerated rights would have the practical effect of converting the original scheme of limited [and] defined powers [of the government] in a sea of individual rights into a scheme of limited enumerated rights in a sea of [unlimited] government powers.”

I would also ask those who advocate such positions as Judge Bork’s for his ‘original intent’ interpretation of The Constitution, “Why do you think that the framers of The Constitution destroyed all of their notes and minutes from the entire Constitutional Convention if not to keep those who followed them from relying on their intent and, thus, giving us the freedom to make this country what we want it to be and to be able to adapt it to the changing needs of Society?” While I have my own beliefs about requiring legislators to specify the goals and objectives for any legislation that they create (in order to make it easier for us to get rid of that legislation later), I can find no fault with the wisdom of the founders to deny us the knowledge of their ‘original’ intentions.

Anthony de Jasay, a Hungarian-born libertarian anarchist philosopher and economist who is best known for his writings against ‘the state’, talks about using a ‘Presumption of Liberty’ concept of natural rights. De Jasay argues that “liberty should be presumed, not because we have a “right” to it, or because it is the most important value or goal, but because it follows from the requirements of epistemology and logic.” In other words, instead of appealing to a person’s preference for liberty, logic dictates that liberty should be presumed. The critical rationalist and philosopher of science, Gerard Radnitzky, was so impressed with de Jasay’s case for the presumption of liberty that he stated that “for the first time the political philosophy of libertarianism and of classical liberalism has gotten a solid base in logic and epistemology.”

There is much to be considered by anyone who would advocate amending The Constitution with a goal of enshrining bigotry or prejudice within it, or of using it to take away rights from our citizens. To do so would be against every idea upon which The United States was created. I personally think that there should be (at least) four levels of rights and powers which should be considered by anyone who thinks they should have the right to tell everyone else what freedoms they do and do not have. They are, in order from highest to lowest:

1.) Rights that are retained by the people;

2.) Rights that are voluntarily surrendered by the people to the government;

3.) Rights that are suppressed by the people in our ‘voluntary’ association in a governed Society; and

4.) Rights that are repudiated by the people through the granting of certain powers and authority to the government.

Governments may have power, but only people have rights, and it is simply wrong for anyone to try to use our Constitutions to try to take away ANY of those rights. That is a ‘right’ which I do not believe anyone of ‘we the people’ ever gave away to anyone else.

As always, I want to acknowledge books and the Internet for giving me invaluable assistance in being able to use my mind and to write articles such as this. A mind is a terrible thing to waste. Special thanks must be given, as is common for my constitutional articles, to The Oxford Companion to The Supreme Court of The United States (second edition), edited by Kermit L. Hall.

Rhys M. Blavier

Romayor, Texas

Truth, Justice and Honor… But Above All, Honor

© copyright 2008 by Rhys M. Blavier

The American Experiment

The history of the American Experiment in self government has always been viewed as a battle between dichotomous ideas struggling for supremacy over the other… federalist vs. anti-federalist; conservative vs. liberal; republican vs. democrat; urban vs. agrarian; north vs. south; east vs. west; central government vs. states rights; freedom vs. security; black vs. white; rich vs. poor; business vs. labor; educated vs. uneducated; interventionist vs. isolationist; inheritor vs. usurper; patriot vs. traitor; traditionalist vs revisionist; living constitution vs. original intent; hawk vs. dove; defender vs. apologist; secrecy vs. transparency; communist vs capitalist; church vs. state; chaos vs. order; good vs. evil; us vs. them; you vs. me. It is a mindset that can be expressed in the idea that ‘those who are not with us are against us and those who are against us are our enemies’. The history of the American Experiment has been seen as a polarized conflict between opposing forces but, what America has never been good at is recognizing nuance, shades of grey, middle ground or balance. Every side wants to lay claim to the high ground and the moral upper hand in the struggle against their opposites but what none of them seem to be able to recognize is that none of them are opposites and all of them need the other ‘side’. What no side acknowledges is that their side is not a side at all and is just as fragmented and torn by conflict as the larger struggle they see themselves engaged in. The reason the American Experiment is doomed to end in failure is because any lesson learned is seen as justification for a polar opposite rather than proof of the necessity for moderation… all sides are right, all sides are wrong… it is up to the center to hold.

The immediate aftermath of the ratification of the American Constitution and the institution of American Constitutional Government was a conflict over which side was the inheritor and defender of the Revolution and which was side was the traitor to its ideals. This conflict was given physical embodiment in the personages of Thomas Jefferson and John Adams. Consider, however, that both of these men in opposition, each fighting to define and advance their vision of the cause they had fought together for, each the personification of their side in opposition to the other, had the same enemy in Alexander Hamiliton. Consider that Alexander Hamilton was a Federalist as was Adams and that Hamilton saw the Republicans and the Virginian planter class as enemies to be destroyed, literally destroyed by armed force, and yet Hamilton was ultimately responsible for Jefferson’s election as President in recognition that Jefferson was a more honorable man than Aaron Burr was. The failure of the American Experiment, from its very beginning, was the failure to recognize that the the differing sides were not their enemies, they were their opposition, they were each necessary to provide balance. Like a gyroscope spinning, the opposing sides are part of the same circle and they are each needed to orbit and balance the other around the center to keep the whole thing from tearing itself apart. The extreme example of this can be seen in Nazi Germany under Adolf Hitler and the Communist Soviet Union under Joseph Stalin. One the embodiment of the extreme right and the other of the extreme left. Implacable enemies who truly hated each other and yet rather than being opposites at two end of a line, they were each on a circle and had gone so far around that circle that they were at the same place.

There is a zen lesson which balances the paradoxical idea of “if you love something, let it go…” and that is that if you want to overcome something you oppose you must embrace it, for only by accepting it can you understand it and only by understanding it can you control it. Keep in mind that our ‘my side vs. their side’ mentality ignores the reality that the the struggle between black and white also includes Hispanics, Asians, and Native Americans, as well as ignores that if someone was truly ‘racist’ they would automatically like everyone else of their race and automatically hate everyone else not of their race… oh yes, and what about those of mixed race… are they both or neither, us or them? The conflicts are illusory and blind us to our need for the ideas and strengths of our opposites. Consider the idea that there are no paradoxes, only things which we don’t understand enough to see the logic with makes seemingly disparate forces things that are unified. There are those who view history as being without order or a coherent order and that any effort to impose upon history as grand scheme is a lie. At the same time, there are those who see in history a purposful march from one great moment to the next. Adams and Jefferson discussed this in their voluminous correspondence between 1812 and 1826. But why can both ‘sides’ not be correct. If we apply the idea of chaos theory and fractal geometry to the discussion we can see an order WITHIN the disorder. This is an idea we must incorporate if we are to salvage anything from the American Experiment… the ordering of the chaotic.

Adams and Jefferson were both right. Jefferson was right that we need change, regular ‘revolution’, freedom and the supremacy of the individual over the tyranny of government. The needs of the one outweigh the needs of the many; the tyranny of the majority; permanent revolution; each generation is supreme. Adams was right that we need order and structure, stability, control and the advancement of the greater good. The needs of the many outweigh the needs of the few; majority rules; what holds today can be depended upon tomorrow. Jefferson and Adams were not enemies, they were partners in opposition… and if they had ever realized that and come together in common cause within the Constitution how different our nation might be today. Adams and Jefferson failed to recognize and tackle the greatest challenge history gave them… to join their disparate ideas into a unified whole. Our job now is to evaluate the successes and failures of the American Experiment and build a stronger institution for the benefit of those who will come after us. Jefferson and Adams should inspire us in their failure and give us the raw materials we need to build our foundation for the future.

Rhys M. Blavier
Romayor, Texas

Truth, Justice and Honor… But Above All, Honor