Part III– THE RESPONSE
First Principles Newly Named
In the previous Post we considered the necessary corollaries to the principal principles of the Constitution. Herein we propose a similar exercise with respect to the newly named purposes of the Constitution as laid out in its Preamble, its Mission Statement.
First and foremost, with respect to all six of those purposes, let us repeat Alexander Hamilton’s statement of “that fundamental maxim of republican government, which requires that the sense of the majority should prevail.”[13] And let us couple that with James Madison’s caution: If the underlying purpose of this government be to ensure union, justice, tranquility, common defense, general welfare, and the blessings of liberty for all, then it follows that neither the majority nor any portion of the people can settle on policies “adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”[14]
If political equality and authority reside with the People collectively, then the named underlying purposes ought properly to be construed within that context, not merely abstractly.
a) A more perfect Union: It turned out that the first effort at Uniting the States had not been considered very thoroughly. Alexander Hamilton laid out in five essays of The Federalist Papers nine defects of the then existing Articles of Confederation. Most of the defects described the want of this or that authority to undertake necessary decisions, or of power to compel recalcitrant States to comply with them. But one he designated as the Chief Vice or Defect. That was its design of the general government to operate upon the corporate entities of the States. His reasoning was thus:[15]
No law can be effective that does not carry a penalty, that is, a punishment for failure to comply.
The mild, that is, peaceable, sanction of the magistrate can be effective only against individual persons. Against corporate entities such as political bodies, the only recourse is the violent compulsion of arms, that is, war.
Furthermore, the only rightful authority for persons to cede some of their individual self-determination to a government lies with the people themselves. It is the people who must ratify the proposed Constitution. The People comprise the Nation of the United States, just as they comprise each State. The Government is established by the People, staffed by those members of the People. elected by them to office for a limited time, to operate the levers of governance for the People’s benefit. Necessary legislation and administration must be weighed by its effect on the public good.
So, just to be clear, “a more perfect Union” meant not simply stronger terms of contract among the States. It meant the Union of the People, joined in the endless quest to “establish[ ] good government from reflection and choice [rather than] accident and force.” “People” as a term refers, and did so then, to either a general or a designated collection of human beings.
b) Justice: In the following quote, the word “end” means not the demise or termination but the purpose, object, goal:
“Justice is the end of Government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”
Those are the words of James Madison in the 51st Federalist Paper. They echo Hamilton’s in #15:
“Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.”
Justice being a moral concept, its application must be to human beings. If in this country all humans are born as political equals, neither master nor servant, then Justice must be weighed in the scales of equality. By the Constitution the founding generation ceded to Government authority to establish Justice. Justice differs from vengeance. Vengeance satisfies grievance. Justice satisfies public peace. The Government equitably resolves disputes over property or personal injury, or is intended to. Order removes private passion from any retribution. Laws and procedures establish the orderly administration of Justice, “without fear or favor” toward any one or another portion of the public. “Law and Order” might more thoughtfully be coined “Order through Law.” The orderly rule of Law rather than the unruly disorder of violence. Laws set the rules so that members of our society can know what to expect. And, so that the administrators of Law can know their limits.
c) Domestic Tranquillity: Tranquility (in its current spelling) plainly speaks to calm, peace, confidence in what the morrow will bring. Its opposites are agitation, fear, anxiety, distress. Violent threats to personal and family safety, whether from invasion by foreign forces or gangland cartels or from natural disasters, top the list. But the quiet expectation in the peaceful enjoyment of one’s daily life is the chief blessing of Liberty that most of us most desire.[16]
The founders clearly had in mind large-scale violence when they considered the proposed federal government’s role in this boon. Shay’s Rebellion in Massachusetts had ended only 3 months before the Constitutional Convention began deliberations.[17]
Violent factions..the natural offspring of free governments [Madison, #10]
A firm Union will be of the utmost moment to the peace and liberty of the States as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. [Hamilton, # 9]
But we know from many remarks their understanding of the human longing for repose, to be sought in efficient exercise of governance.
The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. [Madison, #41]
Let me add my conviction that to the Framers, and to most of the sober people of America, the “business of society” is not primarily Business.
d) Common Defense: The necessity of forming a strong central government for this purpose surmounts all others by its obvious, easily comprehended importance and strength of argument: “United we stand. Divided we fall.” History, especially the near and known history of the world (Europe, Europe in North America), chronicled constant combat shifting among those countries, with moments of relative relief. This was the consequence of those predilections of human nature most frequently denounced by the Framers—ambition, avarice, envy, jealousy. This the leaders of the new society wished to oppose by their proposed exception, “based on reason and justice [rather than] violence and chance.” Still, one had to be prepared to defend itself. Recall that the three major monarchies of Europe had still grasping tentacles throughout the Americas—Spain in Florida and Mexico and south, France in Canada, in Louisiana and lands west of the Mississippi, and Britain still to the north and the Caribbean.
Not only direct attack defined the danger but any efforts to weaken whatever strength and power already attained, preparatory to attack. Again and again the Framers called out the intrigues and corruption of foreign powers intent on gaining some advantage. And further, as independent sovereign States, each would be susceptible to the jealousies and envy towards each of the others, just as were the countries of Europe. United as one Country they will have reduced the most numerous occasions for war, while simultaneously strengthening their ability to oppose dangers from other adversaries.
e) General Welfare: Four remarks of Madison:
[T]he public good, the real welfare of the great body of the people, is the supreme object to be pursued; . . .no form of government whatever has any other value than as it may be fitted for the attainment of this object. (The Federalist Papers #45)
[ I ]n all cases where power is to be conferred, the point first to be decided is whether such a power be necessary to the public good? [If yes], the next would be. . .[how] to protect as effectually as possible against a perversion of the power to the public detriment? (#41)
It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. (#37)
“The aim of every political constitution is, or ought to be, first to obtain for rulers [persons] who possess most wisdom to discern, and most virtue to pursue, the common good of society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.” (emphasis added) (#57)
f) Ourselves and Our Posterity: Those four remarks pretty much sum up the idea. The point of the exercise was to create a constitutional structure—that is, a written rule-book detailing how the government will be organized, by whom, to what end, by what means, and with what protections and safe-guards—that will anticipate the weaknesses we have learned from history, and be flexible enough to withstand weaknesses unforeseen, so that the Nation of the United States of America, its people, may continue in the enjoyment of the Blessings of Liberty—political self-rule—for generations to come.
The Long Clasp 