Friday, March 31, 2006

The Most Important Word

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

So runs the preamble of the US Constitution. When considering this document in a modern political setting, however, one key word seems to be forgotten from this. The Constitution was not seen as the ending point for American democracy - indeed, Ben Franklin gave his support to the document on the somewhat lukewarm basis that he was "not convinced it is not the best". Perfection was something to be aimed at, but actually achieving it was far from conceivable.

It does not take an excessively detailed study of the Constitutional Convention to realise how far the US constitution is a compromise document. On almost all its key points, there was a need for rapprochement between wildly differing viewpoints. The famous Connecticut compromise, for example, which is responsible for the composition of the House of Representatives and the Senate. Equality of states in the Senate was the only means by which smaller states like Delaware would consent to a stronger union.

Even on slavery, the issue that was to blow the Union apart less than a hundred years later, there was a need for compromise. Being so vital to the Southern economy, representatives of the slaveholding states could not countenance an outright ban - but to prevent that from happening, they had to allow treaties affecting commerce to be passed by simple majority. This allowed them to be outnumbered by the North, potentially threatening trading access to the Mississippi.

The key determining factor for most of the delegates to the Constitutional Convention, when deciding to support its end result, was that it provided for a frame of government that was better than the Articles of Confederation which preceded it - a government that had some teeth, could enforce its treaties, and provide some security against popular uprisings in individual states. Its very ratification seemed doubtful for a fair amount of time. In short, despite the fact that the US could count on so many able people serving it in the Convention, there was no thinking that it was a perfect document.

I mention all this because I've recently been reading Alan Dershowitz's "America Declares Independence" - the sort of book that takes the constructionist interpretation of the constitution very seriously. That is to say, that it is important to consider what the Founding Fathers would have meant by each constitutional provision when deciding how the constitution should be interpreted. Never mind the fact that the Fathers themselves couldn't decide on the correct interpretation themselves - a quick look at the party spirit that developed in the 1790s is enough to demonstrate that.

And, of course, it's the sort of book that tries to place modern-day political debates back in the founding years of the early republic. Far from being a historical look at the origins of the constitution, it reads so much like a political polemic - reverential in its attitudes towards the Founding Fathers, without taking the blindest bit of notice of what they are actually saying, or to context. Fair enough, you might think, but this sort of "constructionist approach" to US constitutional law is shared by Supreme Court justices. It's a big influence on the way political decisions are decided.

My conclusion is an appeal for the proper study of history. Revolutionary Americans were well aware of the providential opportunity they were presented with, and the pamphlet literature of the time is crammed full of exhortations to consider posterity. But they didn't think that what they were established could be permanent or perfect.

Shrouding yourself in the mystique of the demigods who framed the constitution is no way of dealing with political struggles in the here and now. For many political debates, there simply isn't a context in which the understanding of the Founding Fathers can be understood. Their attitudes to elections, for example, were highly mixed - the conservatives believed civic participation in politics began and ended on election day. The Republicans today don't believe that at all, nor do the Democrats. So laws on the participation of extra-political organisations can't be referred back. Matters such as abortion or gay marriage weren't remotely on the agenda back then.

The most important word in the preamble to the US Constitution is "more". For all that they believed they were placing America on a firm footing to survive in the separate and equal station they were entitled to by the laws of nature, the Founding Fathers would never have looked 200 years to the past as the beginning and end of their quest for perfection in the political science. Hamilton, Madison and Wilson may have been excellent politicians, but they were not clairvoyant. And to pretend they were only damages democracy.