Yet, in reality that structure was far less ideal and perfect than I have time to discuss.
Well, it's time to set the record straight, lovgubbers.
I'm gonna say it: The Constitution... (gasp!!!)... sucks.
Okay, before I go any further, remember it's the best worst government out there... we're all flawed... (Fed 51: if men were angels, no government would be necessary) we act in self interest, and to get the best result we band together and play by a set of rules to keep everyone honest. You know, keep the playing field as equal opportunity as possible. But let's talk about the Constitution's evolution towards being less and less sucky. (Those are technical terms there.)
Unequal Equality for Some.
And he really thought a lot about that issue of We the People. When not financing the Revolutionary War, courting chicks, or advocating for a national currency to pay off all the War debts, he was serving in the New York legislature.
So, on August 8th... many days into the hot summer of 1787, he laid out his concerns about the strength of the Constitution.
After watching the Articles fail due to a weak central government lacking the ability to fund itself etc., he watched new chains of failure being built into the newly proposed government.
Namely, the Slave South was watering down the powers of a central government by asking for the following concessions. These concessions were necessary just to get the South to agree to the proposed Constitution in the Convention:
- No Congressional control over slave trade until after 1808 (despite commerce clause)
- Require North to return slaves to Southerners (See compelling language in the Slave Trade Act that backed this bad boy up.)
- Feds would provide for and pay for any squashing of slave revolts
- Congress can tax imports (important to Northern industry, which sucks for the North), but not tax exports (including cotton and tobacco, the lifeblood of the slave economy.)
- The "FEDERAL RATIO," which allowed for over-representation of slave interests in the House as it relates to apportionment and in the Electoral College.
This is the backbone of power for the slavocracy in DC through, well... hell... 1866.
Here is where the Constitution sucks.
It was not written to be equal. No way, no how.
It was written to benefit southern slave holders... and the North. Enter Gouverneur Morris. He implored his fellow members to not stand for the Constitution, stating he "never would concur in upholding slavery." (Not true, he eventually signed it in September of 1787.) He felt slavery was "in defiance of the most sacred laws of humanity [as it] tears away [slaves] from their dearest connections & damns them to the most cruel bondages."
So, with that outburst, and not much of a rebuttal from the south... and even less action to reverse this horrible deal with the South, all of these proposed Southern concessions went into the Constitution.
What became apparent over time is that the South ruled supreme over politics and governance in DC. They were over-represented through the federal ration; they were able to find 'copperheads,' or southern sympathizers in Congress from the North, who realized that the free labor of the South kept the textile mills in Lowell running cheaply among other things.
States trump Federal
You had the rise of Jacksonian Democracy... which was more of an oligarchy based on southern elitism. States reigned supreme. The federal government could not be trusted, with its own brand of elitism (most evident in the national bank)... so things get far more local; far more like a confederation.
Things like contracts, property ownership, voting, marriage, custody, and local businesses are really left to the states to decide. They wanted education to be left to families and not state governments. They felt little compassion for minorities of any type (ahhhem. Trail of Tears?) They hated a national currency. They were suspicious of special interest and corruption.
The only thing that they did want the feds to do is to make good on the promise to return property lost. Like slaves. Like, if you were needed to help capture a slave, you could be put into the posse comitatus and were compelled by law to go get that slave. Same thing of the military. Go and get that slave.
Guess what? That means we were more a confederation than a federal government. True. I swear.
Great, more white boys could vote in Jacksonian democracy, but interestingly enough... voting in it of itself was viewed at the time as a representative act, and were called political rights. What was more important on a daily basis were civil rights, and those were created, nurtured, and tended to in the state legislative houses primarily.
Enter the Second Constitution
Here, there is an opportunity to rewrite the Constitution... the first real opportunity since 1789. Despite having one of the worst Presidents ever in the White House with Andrew Johnson (which actually was a blessing in the long run, I guess... he was unsuccessful in stopping the 14th amendment.) we had amazing leaders who have control over the Congress as Republicans. In the wake of the War and Assassination, there is a great rush to push through Congress abolitionist acts. The congressional leaders, in Thaddeus Stevens, Charles Sumner, William Pitt Fessenden, Lyman Trumbull, John Bingham; coupled with motivated citizens, Frederick Douglass, Susan B. Anthony, Elizabeth Cady Stanton, and Robert Dale Owen principally among them, found quickly that legislation on its own would never be supported by the self-aggrandizing, narcissistic, and alcoholic Andrew Johnson.
Johnson, arguably one of the earliest, most powerful presidents, was a former poor southerner who held the elite in South in contempt, and hated the free labor in slavery even more. Once the South was forced to court Johnson in order to be represented in Congress once again (something that Johnson single handedly oversaw despite objections from Congress), Johnson cared little for the slaves, as they were race of people that he could get nothing from but caused so much pain in his life... and continued to be a threat to the poor southerners through Congress's proposed land acquirement, political and civil rights, and economic opportunities
So he vetoed every bill... did the least possible he could to end riots in Memphis and New Orleans.
Congress went around him. The only way to bypass Johnson was to pass an Amendment that forced reconstruction back into the hands of Congress; forced the President to faithfully execute laws; forced a republican form of government in all states.
The battle over the language of the 14th amendment was intense... and covered issues of a FEDERAL ASSUMPTION of guaranteeing all civil rights to slaves. Necessary, because the lack thereof leading up to, during, and directly after the War was the grounds on which Congress felt the federal government had any authority... Its the Guarantee clause of the Constitution in Article IV... that each state should have a republican form of government... and in that citizens should be uniformly entitled to their essential (meaning amendments 1-8) rights...
Jacksonian Democracy, the Constitution, and even the 13th Amendment which did not give Congress expressed powers with which to legislate barely dealt with these civil rights, and since the language was so barren... without stating who has the enforcement power of these rights... folks were finding themselves without these rights in the face of the states. And remember, the states were the government entities who dealt with these issues previous to the passage of the 14th Amendment.
Blacks, Native Americans, Asians, Hispanics... Women... (and instead of remaining one cause together, all those without civil and political rights... the causes fractured and began fighting each other, literally causing Stanton and Anthony to ask who needs the vote and civil rights more... only to be told (in essence) to sit down and shut up.) All of these folks lacked both political and civil rights.
But what it was not, despite the due process clause, privileges and immunities clause and the equal protection clause, what it remains as not today... is a guarantee or a protection of political rights.
Remember, political rights were not expanded to all. There was concern that there were citizens who did not earn that right... and could not be left to hold that right. Education, experience, and clout were all necessary to be eligible to vote.
Thus, women, blacks, minorities... were not to vote.
Political rights, while recognized as necessary by many, including Owens, Stevens, Stanton, Douglass, and Anthony... were the last to come on line. This is the true democratization of our republic... The extension of political rights made it highly improbable that these rights would be removed. It prevents every class, every gender, every race, from being deprived their civil rights on any ground.
And with the passage of the Fifteenth, the Nineteenth, the Twenty-Sixth amendment, the Constitution sucks less.
Who gets to enforce this mess?
Historians point out to how the New Orleans massacre led to the evolution of the second phase of the Civil War. One in which politicians and judges everywhere did a generally half-assed job of crafting, enforcing, and interpreting federal law regarding civil and political rights among the races. And oh yeah, the Jim Crow South, the KKK... and a whole hand full of overt and covert attempts to mess with blacks in the South.
We've gotten better, but there is evidence that the fight is no where near over.
Let's be frank: Rules are made to be bent, broken, and bruised up. Why? Cause we are all acting in self-interest, generally. Occasionally we have folks like the Warren Court, like Eisenhower, like Kennedy, like LBJ... who get it... and do their job.
And it is getting more frequent that minorities are faring better. (As well as evidence we are backpedaling, too. Lots more than I have time to publish.)
But the interpretation of this amendment has gotten crazier.
I have waxed philosophic about that whole are-corporations-people question... and if we look to Santa Clara County vs Southern Pacific Railroad (1886) where Roscoe Conkling pulls out the previously missing private minutes of the Joint Committee that penned the 14th amendment to argue that the authors would have included SPR as a person... and the court agreed! While the Harlan Court decision is not itself controversial, as it dealt with a question of federal taxation of property, the usage of stare decisis and precedent has given us things like McConnell, Hobby Lobby, and McCutcheon.
And while we are talking courts, let's take a minute to remember the fifth clause of the Fourteenth Amendment... which allows CONGRESS to enforce by appropriate legislation the provisions of the article. Who should decide? Congress? The President? The Courts?
True, the Courts are getting involved in highly political matters... where possibly they should not be treading... Yet, so is Congress... whether you look at the controversial Religious Freedom Restoration Act... or the Affordable Care Act... each acting in different ways on states and citizens alike... And so is the President, as Obama has with some controversial end to Don't Ask, Don't Tell.
The beauty here is that the branches are checking each other... and while your side may not always win, there are vehicles in check to fix errors... to begin the process of incorporation, as did with Gitlow v New York, and has begun a whole onslaught of legislation to test the validity of states actions before the eyes of the Courts... of Presidents to force states to begin the process of desegregation by using the National Guard in new and unprecedented ways, to have Congress pass ground breaking legislation to enforce unpopular provisions of amendments...
And that, my friends, is how the Constitution sucks a little less. (Remember, we're no angels here folks.)
But you have to admit that the compromise, the patching together of different interests, chiefly among them, those of state versus national interests, makes the Constitution a little less perfect, and little more frankenstein-ish than you originally thought.
Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America by Garrett Epps (2006)