The Chris Moeller Archives

The Founders' Flubs

Many Americans fall into a trap of treating our founding fathers like deities. (Whereas, I don't even capitalize 'founding fathers.') This is certainly an increasingly common mistake as our Declaration of Independence fades deeper and deeper into history, and into a legend of sorts.

They were nothing of the kind, of course. They were deeply-flawed men who wrote a revolutionary, beautiful, far-thinking, imperfect document—the U.S. Constitution-- that would have monumental implications for good around the globe. Their hubris and the prejudices of their era force us to always view our Constitution with an eye towards reinterpretation and change. It’s in honor of some our earliest national missteps that I offer up my list of the ten biggest imperfections found in our nation’s founding document and the early Amendments. Think of them as “the bloopers, errors, and goof-‘em-ups” of the men who had the boldness and foresight to declare, in 1776, that all white male property-owners are created equal and endowed by their imaginary best friend with certain inalienable rights, among them, life, liberty, and the pursuit of happiness.

Just a couple notes first: The mistakes are listed in order of their appearance in the document, not in order of egregiousness. Also, I passed over some particular defects because they haven’t had major implications over the years. Someday, we may come to fear and resent again the idea of government soldiers being quartered in our homes without our consent, perhaps even to an extent worthy of it being only the Third Amendment to the Constitution, but for now, the existing Amendment has not been really applicable for much of the first 235 years of the Republic. (No disputes. Well done, I guess.) The age restrictions on serving as President (35) or in the Congress (25) seem rather unfair to me also, but nobody, young or old, seems to care. And young people will continue not to care as long as there are Kardashians on TV to distract them.

And now, the whoppers. I spent all day at work on this, so enjoy:

Article I, Section 1 & 3: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall exist of a Senate and a House of Representatives... The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof... Yes indeed. We’re off the rails right there from the beginning—the creation of one house of the legislative branch that’s entirely unrepresentative. In 1913, part of this Section 3 was corrected to allow for the direct election of Senators by the people, but that doesn’t make up for the initial error of the rest of it. The monied and well-bred “noblemen” of the first Constitutional Convention in Philadelphia in 1787 believed they were more qualified to choose representatives than were the common people of the land so the “upper house” of the bicameral legislature was reserved just for them. This started the heinous and enduring trend of our Washington political class suspending democratic elements any time they felt their power and authority was being threatened. We’re still stuck with the absurd system of each state having the exact same representation in the Senate regardless of population. In the 2010 Census, the population of Wyoming was 563,626. The population of California was 37,253,956. That’s two Senators each. Under no definition of democracy should this be considered fair.

Article I, Section 2: Three-fifths of all other persons (that is, African-American slaves) are excluded from representation in the government and in the calculation of taxation, establishing for the first time on official parchment that these individuals would be recognized by the newly-formed government as less than human. This particular “three-fifths” percentage was arrived at the old-fashioned way, a method that modern Democrats and Republicans can appreciate-- they compromised on it. I’m happy to report, though, that this element of the Constitution has been null and void since 1865.

Article I, Section 8 (17th Clause): Congress shall have power... To exercise exclusive Legislation in all cases whatsoever over such District (not to exceed ten Miles square) as may... become the Seat of Government of the United States... And with that, the people of Washington D.C., whose numbers today exceed that of the state of Wyoming, have no representation in either legislative chamber. Do you think this example of taxation without representation is trivial? I steer you to a news report from just this week. In the budget compromise between Republicans and President Obama Friday, family planning services were shut down in Washington D.C. only. Should District of Columbia residents register complaints with their Congressperson about Obama selling them out? Tough shit.

Article I, Section 9: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight... The Human Slave Trade is formally granted its first 20 years of existence in the new “republic.”

Article I, Section 9 (again): The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it... Yuck. First of all, this one is written with horrendously vague and overreaching authority on behalf of the Executive Branch, and as a result, it’s no surprise that it’s been abused during nearly every instance of violent national conflict at home or abroad. Calling it a “privilege” to petition the court for a charge of unlawful detention shouldn’t distract from the fact that this should be considered a Right, by human law. To argue against it is to make the argument that some accused persons are simply too dangerous to warrant a fair trial. More absurdity.

Article II, Section 1: The executive Power shall be vested in a President of the United States. He shall... be elected, as follows: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the Whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative yada, yada, yada... The Electoral College was a product of the same mindset of monied arrogance that gave us the “upper chamber” of the legislature. Some day we might actually scrap this one, though. I’m cautiously optimistic. The election of Senators ultimately converted to a direct popular vote. Why not for the President?

Article II, Section 1 (again): No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of the President... In all the to-do over President Obama’s birth certificate, nobody ever talks of the fact that this was a dumb provision from the start. The last governor of California, for example, wasn’t born in America, and he would have certainly been a legitimate candidate for the presidential position otherwise. In a country that derives its blood flow from the imprint of immigrants (now I'm mixing metaphors), and especially in a country in which so many immigrants arrive as children, what’s wrong with the idea of one ascending all the way to the Oval Office? The founders betrayed this one themselves with some added wording you'll find above that allowed each of them to be eligible for the office. Remember, neither George Washington nor John Adams nor Thomas Jefferson nor James Madison nor James Monroe nor John Quincy Adams nor Andrew Jackson-- any of our first seven Presidents-- was born a citizen of the United States. Nobody questioned their allegiance to the office.

Article IV, Section 2: No Person held to Service or Labour in one State, under the laws thereof, escaping into another, shall... be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour maybe due... First of all, they spelled "labor" like a dirty Canadian, but maybe we should be grateful for this one, despite all of its naked hideousness. This section was calling on Northern states to return fugitive slaves to their Southern owners, and in a strange way, it helped lead to the situation in which slavery was finally unsustainable “politically.” As if a shared government, Constitution and Bill of Rights wasn’t enough, the forced return of fugitive slaves made the citizens of the North actively complicit in the institution of slavery. The Underground Railroad caused resentment among Southern whites, and the Dred Scott Supreme Court decision, denying freedom to an escaped slave, provoked outrage in the North. Isn’t it funny that none of these Constitutional elements that reference slavery actually used the word “slave” or “slavery”? They’re just persons being “held to Service or Labour,” don’t you know?

Amendment II (1791): 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... What a sloppy mess. The right to own a gun, or many guns even, is clear enough, but there’s a comma in there that has caused a mountain of debate and a world of pain. Well-financed lobbyists have trained us to believe that this amendment speaks specifically to the individual's right to bear arms, yet the framers didn’t bother to start a new sentence after the “well-regulated Militia” part. I’m willing to concede that we each have a right to bear arms, but nobody ever references that “well-regulated” part. That phrase invites, nay, demands strong regulation of firearms, if you're asking me—common sense criminal background checks, waiting periods, restrictions on armor-piercing bullets and semi-automatic weapons, all that good stuff and more!

Amendment VIII (1791): Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted... No, I'm not against any of that, but we’ve failed on this social issue of criminal punishment so badly that something’s obviously wrong with this. The United States is a police state. What else would you call the country that incarcerates a larger percentage of its citizens than any other on the planet? If one exists, this must be it. We have 5% of the world’s population, yet we lock up almost a quarter of the world’s prisoners. We imprison a wildly disproportionate number of African-Americans among them. In 2004, 14% of the entire African-American male population age 15 to 29 was incarcerated, that is, 4.5 million souls, and we’ve found a way to privatize much of the prison industry for corporate profit at the same time. A bold person might make the argument that we’ve found a way to actually legalize slavery again. This Amendment simply failed to go far enough to account for a truly enlightened society. Our dehumanization of our citizens has its roots in the framers’ failure to outlaw state-sanctioned murder when it left the punishment language (“cruel and unusual”) open to judicial interpretation.


Ok, that's it. Let me know what I missed. I’m off now to begin my new career as an unlicensed attorney specializing in Constitutional Law. You can do your part for the cause by lobbying your Congressional representatives for a Constitutional Convention to revisit these and other possible issues for potential amendment. If you live in Washington D.C., contact somebody else’s Congressional representative.

posted by CM @ 9:20 PM