Cline on the Constitution

Lord Byron and Perfection

So, what does Lord Gordon Byron have to do with the interpretation of the Constitution?  Well, it’s a stretch. Let’s see if I can get there.

Justice Antonin Scalia said, “The notion has somehow gained currency, . . . that if something is intensely bad, it must be prohibited by the Constitution; or if intensely desirable, it must be required by the Constitution.”

Neither is true. First, the actual Constitution is about governance not what should be or should not be.  And second, in an age of rampant self-righteousness, those who preach about the document’s “imperfections” misapprehend the nature of the document and the Amendment process built into the Constitution 

Most people, when they think of the Constitution, think first of Rights.  And mostly those rights enshrined in the Bill of Rights and later amendments passed after the Civil War.  But the Bill of rights was adopted separately from the Constitution, in fact, ratified by the States a couple of years after the Constitution.  

The original Constitution is not about rights but about governance.  It’s about a structure that delegates the power to get things done but defuses that power to protect against tyranny.  It jealously grants only so much power to the federal government as is felt necessary to the do the job and then splits it between departments of government so they can act as checks on each other.

As Justice Scalia put it:

“ . . . the bill of rights has value only if the other part of the Constitution – the part that really “constitutes” the organs of government – establishes a structure that is likely to preserve, against the irradicable human lust for power, the liberties that the bill of rights expresses. . . . So, while it is entirely appropriate for us Americans to celebrate our wonderful Bill of Rights, we realize (or should realize) that it represents the fruit, and not the roots, of our Constitutional tree.”

He goes on to state “. . . it is those humdrum provisions – the structural, mechanistic portions of the Constitution that pit, in James Madison’s words, “ambition against ambition,” and make it impossible for any element of government to obtain unchecked power- that convert the Bill of Rights from a paper assurance to a living guarantee.”

You can find in the “Constitutions” of the Communist China, and Socialist Russia paeans to individual liberty every bit as inspiring as our own bill of rights.  What you won’t find is a structure prevents the government from taking away those rights at its will and pleasure. 

More and more from those who live to criticize all things American, its culture, its history, its leaders, past and present, you hear the raspy gasps that the Constitution is an imperfect document because it does not meet their own self-deluded modern standards.

It is fatally flawed in their view because it is imperfect when in fact imperfection is the permanent state of mankind and all human affairs. 

Which brings me around to Lord Byron.

A distinguished scholar made this observation about the hangover in despair after the French Revolution 

Of those who invested in the blind belief that the French Revolution would solve all of societies inequities: “ . . . the disappointment that came with the failure of the French Revolution to user in the brotherhood of man and to end the abuses in government and in social and economic life; the disillusionment of those who . . . had hitched their wagons to the star of perfectibility and an idealized human nature and who were forced to resign themselves at last to the sad spectacle of man’s irrationality and imperfection.” 

It was that awakening to the reality of human nature which gave rise to the Romantic hero, the loner who follows his own code despite the corruption and imperfections he encounters everywhere.  Byron’s Don Juan was the earliest version.  The mythic wandering cowboy of the old West and Clint Eastwood’s Dirty Harry Callahan are later-day embodiments.      

The Framers were well-grounded in the history of the French Revolution and the literature and philosophy of the time.  They recognized the imperfection of man and, more importantly, the imperfection in themselves. They knew what they brought forth, though better than what had ever been done before (or since) was not perfect, but it had within it the means to adjust, to revise, to get better, even to experiment. 

Yes, they knew about the flaws regarding slavery.  And, yes a few even regretted that universal suffrage was not on the table, but they knew change was possible and even desirable. They knew neither they nor the instrument they produced could ever be infallible. Something modern day critics can never admit about their own teachings.

In their genius the Framers built into the Constitution a process by which it could be amended.  

Article 5 of the Constitution states, 

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to the Constitution, or on the Application of the Legislatures of two thirds f the several states, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.”

Although there are two methods described, only one (that of initiation by Congress) has ever been used. Congress may establish the time frame under which the Amendment may be ratified and has the ultimate authority to decide if in fact was ratified by the States. In 1992 the Twenty Seventh was ratified after 203 years (was part of original twelve amendments proposed and prohibited pay raises for members of Congress during their terms) By contrast the Twenty-Sixth Amendment lowering the voting age to 18 was the fastest adoption of all.

The Constitution is not a perfect document.  However, it is the greatest formulation for the governance of a free society ever put to pen. Debated and drafted by a group of men, who were in the words of Thomas Jefferson, a gathering of demi-gods they made real a vision wider than our modern racial and gender myopia.  They were aborning a nation and sought to build into its fabric a means to insure as much as possible it would defeat attempts to turn its government against the citizens it governed.     

So, no it’s not perfect.  But, Mister, it’s damn good.

(Coming soon, “Evolving Standards? Living Constitution?  That’s what we want? Well, Isn’t it?”  Of course, this assumes I won’t get distracted by more madness on the impeachment front.)

For writings by Phil Cline visit philcline.com