The U.S. Constitution Was Never Perfect

W. Cleon Skousen
W. Cleon Skousen (Wikipedia)

There’s been an increase in the number of Americans calling themselves constitutionalists in the last several years. They believe the U.S. Constitution should be interpreted using the concept of originalism, wherein the courts should identify the exact intent of the Framers of the Constitution and render legal decisions based solely upon that “original” meaning. But one of the problems with this approach is the difficulty of defining the exact intent of a document that was written more than 220 years ago.

Most of these constitutionalists also hold far-right political views and like to complain about how our country is in trouble because of modern Supreme Court decisions. Some of them go so far as to claim that the court’s recent decisions have violated God’s will. The Church of Jesus Christ of Latter-day Saints, for instance, teaches that the original Constitution was divinely inspired because God was integrally involved in its formulation. Some Mormons have taken this belief much further. The late W. Cleon Skousen founded the National Center for Constitutional Studies (NCCS), a conservative, religious-themed constitutionalist political activist organization. According to the NCCS, the founding of the United States was a divine miracle and we must reject the tyrannical and sinful nature of the modern U.S. federal government. (Before he founded the NCCS Skousen was fired from being the police chief of Salt Lake City for abusing citizens, and was denounced by the city’s mayor as a “little Hitler.” After that he taught a traveling anti-Communist class nationwide in which he liked to denounce the John F. Kennedy administration for being Marxist.) Skousen died in 2006, but he still has many admirers, including Arizona politician Russell Pearce and political commentator Glenn Beck.

Worshipping the Original U.S. Constitution is Irrational

Religious constitutionalists say there are historical documents about the 1787 Constitutional Convention which prove the Constitution was divinely inspired. The “Father of the Constitution” James Madison, for example, wrote to Thomas Jefferson afterwards that it was “impossible to consider the degree of concord which ultimately prevailed as less than a miracle.” George Washington later wrote, “To that superintending Power alone is our retraction from the brink of ruin to be attributed.” But closer examination of quotes from the Framers indicate they believed the true miracle was that all of the young nation’s disparate political interests were able to come to an agreement on a political system that could replace the completely dysfunctional Articles of Confederation, which had served as the nation’s first constitution. Yes, they were very proud of the original Constitution, and realized it was an historic document in the history of the world, but it’s clear they didn’t think it was perfect.

Evidence of this is included in the original Constitution. It consisted of just 7 articles, with one of these, Article 5, describing the process for making constitutional amendments. The first 10 amendments, called the Bill of Rights, had to be promised to the states of Massachusetts, Virginia, and New York to assure their ratification of the original constitution. A perfect original document wouldn’t have needed to be amended. And there are now 27 amendments.

These amendments speak to some of the major deficiencies in the original Constitution. The most important, of course, was the 13th Amendment, which abolished slavery when it was ratified in 1865. (Several of the Constitution’s original Framers were slave owners, including James Madison.) The man who assassinated President Abraham Lincoln in 1865, Confederate terrorist John Wilkes Booth, wrote, “looking upon African slavery from the same stand-point held by the noble framers of our constitution, I for one, have ever considered it one of the greatest blessings (both for themselves and us,) that God has ever bestowed upon a favored nation.”

The 17th Amendment was another important one because it gave voters the ability to directly elect U.S. senators when it was ratified in 1913. And the 19th Amendment, which gave women the right to vote, was ratified in 1920.

Furthermore, these self-proclaimed constitutionalists ignore the bad Supreme Court decisions which resulted from a strict interpretation of the original Constitution, such as the 1857 Dred Scott v. Sandford decision that confirmed the legality of slavery because the Framers of the Constitution viewed blacks as “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”

Constitutionalists spend a lot of time complaining about the federal courts using the common sense “living document” concept wherein the interpretation of the Constitution includes consideration of modern day realities the original Framers could not have imagined. Any court decision they politically disagree with is given the Orwellian label of “judicial activism,” and the judge that issued it is demonized.

Their favorite topic is the Constitution’s Second Amendment, which states that, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” They interpret this to mean that any form of government gun control is unconstitutional, regardless of any other public concerns.

It’s obvious that most constitutionalists are just exploiting the concept of originalism as a vehicle to promote their conservative views, because worshipping the original Constitution and its Framers is irrational.

150th Anniversary of the Gettysburg Address

Lincoln Memorial
Lincoln Memorial (Jeff Burgess)

On November 19th, 2013, Americans celebrated the sesquicentennial anniversary of the famous speech President Abraham Lincoln gave in 1863 during a ceremony to dedicate the Soldier’s National Cemetery at the site of the Battle of Gettysburg.

Lincoln’s famous words included the reminder that our nation was, “conceived in liberty, and dedicated to the proposition that all men are created equal.” And he declared that the Civil War needed to be won by the United States to ensure, “a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth.”

While Lincoln’s speech is now recognized as a defining moment in American history, back then it was criticized by newspapers aligned with the Democrats – his political opposition in the North. For example, the Chicago Times, a Democratic newspaper, editorialized, “The cheeks of every American must tingle with shame as he reads the silly, flat, and dishwatery utterances.”

The advent of the Civil War had split the Democratic Party into the two camps – the War Democrats and the Copperheads. The War Democrats supported President Lincoln’s prosecution of the war against the rebellious Confederacy, but they didn’t control their party. The Copperheads opposed the war and wanted to make peace with the Confederates and allow the continuation of slavery. Many Copperheads were racist and saw no need to free African Americans, especially because the war was so costly and had led to a great increase in the power of the Federal government over the states. And some Copperheads were merchants who had lost profitable trade with the South.

So Lincoln’s political opposition was primarily focused on the supremacy of states’ rights, no matter the cause, and the protection of wealth, no matter the morality. These were the same basic grievances of the Confederacy. (Today, ironically, they’re favorite issues of the modern Republican Party’s powerful right wing.)

I visited the Gettysburg National Military Park during the summer of 2013 with a couple of friends because we wanted to say we were there on the 150th anniversary of the battle. It’s a place that every American should visit. The National Park Service has done a great job of making it easy for any visitor, no matter their knowledge of American history, to understand what happened there. One of the things I came away with was the realization that all of the soldiers in the Union Army understood the importance of the battle, and were determined to win, no matter the cost – even if it meant giving their life. Lincoln recognized this fact with his speech.

We took a couple of days and toured the entire battlefield, including the Confederate positions along Seminary Ridge. This was the place where their commander Robert E. Lee had launched his ill-conceived assault that went uphill and across open ground to try and pierce the middle of the Union lines on the decisive 3rd day of the battle. The attack, now popularly known as Pickett’s Charge, failed miserably. It’s considered a turning point in the Civil War, and is often called the high-water mark of the Confederacy.

At the jumping off point for Pickett’s charge the National Park Service had mowed a lane in the tall grass across the entire three-quarters-of-a-mile wide field that had separated the two armies in 1863. The purpose was to allow visitors to easily walk the distance and personally experience what the Confederate soldiers had done that day. While we were standing there a white man with his middle-school-aged daughter walked by us and started across the field. I overheard him tell her that she had to take the walk so that she would appreciate her Southern heritage.

last confederate flag
The Last Confederate Flag

This troubled me, and it still does. I respect the bravery and sacrifice of those Confederate soldiers, but they fought for the wrong reasons – and that’s an important thing for us to continue to recognize. Union commander Ulysses S. Grant felt similarly about this. He accepted Lee’s surrender in 1865 and later wrote that, “I felt like anything rather than rejoicing at the downfall of a foe who had fought so long and valiantly, and had suffered so much for a cause, though that cause was, I believe, one of the worst for which a people ever fought, and one for which there was the least excuse.”

Even today, with an African American president, we need to be reminded that we still haven’t fully achieved Lincoln’s vision for our country. People who try and claim that the Civil War was really about states’ rights should be roundly condemned as un-American . (Go see the movie 12 Years a Slave if you think slavery had a benevolent side.)

It’s difficult, and almost inexplicable, for me to understand why President Obama didn’t speak at the 150th anniversary celebration of the Gettysburg Address. Perhaps he felt he couldn’t improve on Lincoln’s work. But he should have done something significant to recognize the importance of the occasion.

As for the brave Union soldiers who gave their lives at Gettysburg, I give you the words of Confederate General Pickett, who led the doomed charge against the Union positions along Cemetery Ridge on July 3, 1863. Years later, when asked why the charge had failed, he replied, “I’ve always thought the Yankees had something to do with it.”

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