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Rob Chrisman: The Constitution: fragile as the average frog?

Rob Chrisman
Other Voices

Many of you will remember the cautionary tale of how to cook a frog: first, don’t heat up the water in your pot and then introduce the frog. No, set the frog in tepid water and very slowly, very incrementally raise the heat. Froggy will stick around until the end. Until you can stick a fork in him.

This situation is analogous to how many people are deceived on various social and political matters.

We have arrived at a point in U.S. history when some factions are proposing political solutions that are, frankly, tantamount to socialism, with varying degrees of government ownership and/or control of what has long been considered the private sector. This did not happen overnight.

Notwithstanding that proponents of this trend (e.g. the impeachment crowd) have been invoking the Constitution and the “rule of law” ad nauseam, is it possible that they completely misunderstand what the Founders were after? And that this lack of understanding has been facilitated by numerous actors in a manner not unlike the cook in the tale of the frog.

Two approaches have been used: either the Constitution is derided as old-fashioned and must change with the times (i.e. a “living constitution”), or, if one can tolerate the hypocrisy, it is hailed as something to be “protected and defended”. However, just some minimal scholarship on your part will show that:

Our Constitution is fundamentally and primarily a document of restraint, i.e. it restrains the operation of government wherever and however the Founders thought it would inhibit natural rights and the exercise of individual liberty. The short list of natural (read inherently human) rights would include life, liberty and property. Nowhere in the document are there any rights that even remotely resemble entitlements, and such things are frankly prohibited if one follows the prescription in Article I, Sec. 8 in which 17 explicit powers are enumerated as being the only ones allowed to this new, more centralized government. Unfortunately, it was very early on that Congress began to ignore this section under the guise of what has been called the “General Welfare” clause. This is an example of the “living constitution” idea and was the first incremental increase in the temperature of froggy’s pot.

The functional organization of the new government was specifically designed to prevent single institutions from dictating all the rules, leading to the separation of powers into several branches: legislative, executive, and judicial, and to provisions for “checks and balances” between them. The Founders feared that a stronger central government would lead to loss of liberty, and so, had to be hobbled.

Despite continual proclamations by the Left, democracy was not enshrined by the document. On the contrary, direct democratic election was reserved to one-half of the Congress, i.e. the House, on a two year cycle. The upper house, the Senate, originally had its representatives selected by the state legislatures; this was changed to direct election by amendment until 1913, raising the pot’s temperature by another increment. Our country is a republic, where elections select representatives who then get to vote on laws. Now the protection provided by the only remaining selection process not involving direct election, i.e. the President, is under strenuous attack — the Electoral College.

When you read the Founders, especially the ratification debates, you see how concerned they were over the ability of direct democracy to affect freedom. They considered direct referendums as suspect and knew that there is no inherent wisdom in the majority opinion and abhorred the notion of mob rule. This led them to insist on a Bill of Rights to be added within a short time of ratification as a condition of acceptance of the Constitution. Note that none of these 10 amendments create any entitlement. All of them contain words like “Congress shall make no law…” These rights are explicit, undeniable prohibitions on government action.

As time went on the temperature of the pot kept rising, by constitutional amendments (e.g. the income tax), court decisions that frankly contradicted both the letter and spirit of the document, and by numerous other successful attempts to enhance and enlarge the role of the central government. We desperately need to understand that constitutionalism as an American concept involves defining those things which absolutely cannot be the subject of legislation, specifically to prevent the “tyranny of the majority.”

Many of our Constitutional provisions have been both ignored and disabled. A lingering authoritarian approach to COVID-19 may well decide froggy’s fate.

Rob Chrisman lives in Nevada City.


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