Jerry Fresia Contests the Legitimacy of the Constitution

Great Debates
21

VarlosZ:

In my experience, which is not inconsiderable, the Constitution and the Framers are pretty much inseparable in arguments over the value of the Constitution. They tend to go like this: I complain about facets of the system. People assume that I am an idiot and try to explain it more slowly. After I repeat a few times that I do understand, I just don’t agree with THE FOUNDERS, the argument quickly runs into the roadblock of “tyranny of a majority”. It is my opinion that time could be saved by simply getting right to the crux of the disagreement. If you wanted to start at the beginning, I would argue:

I assert that all citizens are entitled in an equal say in their government.
The Constitution violates this principle.
The Senate is not elected in proportion to the population.

If you have an argument justifying this inequity other than “tyranny of the majority” then please let me know because I don’t accept that objection.

Thanks for the interpretation of Freedom’s words. That does seem to be his objection.
I know what an “Appeal to Authority” is, though your explanation leaves out a vital consideration. The central question of this fallacy is the competency the authority. If it is legitimate then there is no fallacy. For instance, in a dispute concerning a detail of ‘categorical imperative’, giving Kant’s opinion on the matter would be a valid argument, since he is a ( the ) qualified expert.

Another lesson in logic will illustrate Freedom’s error. There is a difference between an argument and an explanation. The former can be fallacious but the latter can not, though it can be wrong. An example- A poster could ( and have ) attempt to answer my objection to the Senate by stating that the states are represented equally rather than people. This statement isn’t wrong, but it’s not an argument; it is merely an explanation of why things are as they are. It offers no justification for the inequity.

My OP was an explanation of the book. It did not contain any arguments other than the implication that our government would be illegitimate if it was enacted in the face of popular dissent. If you wish, I am prepared to argue that the Constitution should go but that is not what I have been doing.

I hope I don’t need to explain the difference between an isolated incident and the very founding of our government. I find it bankrupt because the only possible justification ( that I know of ) for its violation of that principle that I hold dear is that it prevents tyranny. Now I will argue that our government can not do so, because it is tyranny.

Do you really believe that it is common knowledge that the Founders illegally usurped authority through secrecy, fraud, and physical violence?

That would be silly. I’d say that the reason that people don’t know is because they believed what VarlosZ called “grade school fairy-tales” and Lemur866 called “pious fables that schoolchildren are fed”. Funny thing about kids, they are easy to lie to. If our government is so just and admirable then why is it necessary to lie to our children about it? I should blame those who grew up without ever knowing that they were lied to for their own ignorance?

Just my 2sense

22

I’m afraid that now you are overstating your case.

Secrecy? Yes they met in closed session so that they could limit the amount of the cross-chatter and heckling from the peanut gallery. They were not bound to secrecy or silence, however, and the roughly 1/3 of the Framers who were Anti-Federalists were quite open in their opposition during the convention–including letters they wrote to friends, letters they wrote to newpapers, and (on a few rare occasions) speeches/lectures they delivered.

Fraud? We’re simply going to disagree on this one. The political shenanigans that were pulled were carried out by both sides and the Federalists happened to do it more successfully.

Physical violence? I’m sorry, but the idea that the Philadelphia mob was simply a group of plutocrats banding together to carry out their nefarious schemes simply does not cut it. The (pro-Federalist) mob was made up of people (and probably not the richest people) who had decided that they wanted the government described in the document that had been published and reviewed several months earlier.

I am not defending the violence, but it can hardly be laid at the feet of Madison, or even Franklin.

I am not claiming you have no point to your objections. However, I do think you are sliding away from analysis (or even exposition) and into exhortation.

You have been implying that the Federalists were a tiny minority who somehow sneaked this treacherous document past the great multitudes of the citizenry. While I would never claim that the ratification was an inspiring example of democracy in action, I suspect that the majority of the people who were recognized as citizens at that time did support it.

There is no question that it was flawed, as written. Even after nearly 30 amendments, it still can been viewed as flawed. It is rather gross hyperbole, however, to claim that it was an oppressive document that was implemented only through chicanery, enshrining tyranny that still enslaves us all, today.

The very fact that we have amended it on several occasions, with over half of the modifications securing more rights for the governed, indicates that it had some claim to recognition.

23

Indeed it does. The Constitution did not create a Democracy; it created a Republic. If you wanted a Democracy, you’re in the wrong place.

That aside, the disproportionality of the Senate does not reflect any grand political philosophy; nobody I’ve ever seen claims that it does. It certainly doesn’t reflect an interest in protecting against a “tyranny of the majority”, although it sometimes has that effect (because of the more deliberative nature of Senate discussion, which is more by happenstance than by Constitution design). The apportionment of Representatives by population and of Senators by state is the result of political compromise. There’s no grand overarching philosophy here except “you do what you have to do to get the people to vote for it”. The big states wanted apportionment by population and the small states wanted apportionment by state, each obviously protecting its own interests. The compromises gives each side some, but not all, of what it wanted.

The organ of government which does the most to protect against the tyranny of the majority is the Supreme Court, which, ironically, was not a role envisioned for it by the Founders. The Founders generally admitted that there would be some need for a federal judiciary but did not expect it to have the power that it does today. That was accomplished primarily through by the legal and political maneuvering of one John Marshall, over ten years later. The historical accounts we have strongly suggest that the Founders spent rather little time on Article III, and it is difficult to find much commentary on the expected role of the federal judiciary until after the brouhaha that led to Marbury v. Madison erupted.

24

Danielinthewolvesden wrote:

I believe the plants beat the insects onto land by a few million years. You’ll have to negotiate a land-purchase deal with your rhododendrons.

25

There’s a rock in my back yard that disputes the contention that the hated vegetable oppressors (its words, not mine ;)) were the first to colonize the land. The land itself was there first.

~~Baloo

26

Thats OK, I took it for granite… :smiley:

27

Incidentally, I happen to believe that all people have the right to be free from initiated force and fraud. Yeah, the Constitution violates this principle. But until this becomes the way things are done, and the basis on which issues are decided, I really am not going to use it to declare the Constitution illegitimate.

28

Foiled by my inability to ignore the voice of reason.

Thanks again, Tom, for taking the time to point out my errors. I do appreciate it. It looks like I need to retrench and do more research, though I can’t imagine that anything tying a founder to that Philly mob would still exist. Letters from the Convention to newspapers would be interesting. I don’t suppose you have any book recommendations for this period?

Minor quibbling:

I have already made the distinction between approval by what was considered “The People” at the time and what is considered “The People” today. As I stated, my previous assumption was that a majority of those eligible to vote at the time did approve of it. Now I doubt that this was the case but I haven’t seen enough evidence to actually take that position. I didn’t mean to imply it, and I won’t unless I learn more. The implications that stem from the actions of the federalists speak for themselves. They don’t seem to be actions of those who have a majority, at least in the states where they took place. The only shenanigans that I am aware of are from Mr Fresia’s book or have been noted in this thread. I would presume that you are basing your opinion that one side simply got the better of some rough and tumble politics on additional information because there doesn’t seem to be enough here to judge and what there is doesn’t support your conclusion.

Also, I don’t understand how the people in Philadelphia could have had several months to examine the Constitution. It was signed on September 17th. According to Fresia, it was delivered to Congress eight days later which would be September 25th. Also according to him it was rushed through the single chamber and that the mob formed the day that word reached them that the Congress had forwarded the Constitution to the states. I don’t have a date on that but it doesn’t seem that there can have been that much time. The convention those Assemblymen unwillingly called for first met on November 20th.

Thanks again. I’ll keep an eye on the hyperbole and I’ll do my best to keep my exhorting based on something more substantial than wishful thinking.

I just want to give a quick shoutout to Danielinthewolvesden.
That pun was a groaner but your first post makes up for it. LOL
Perhaps you should have heeded my advice on pondering the imponderable. :wink:

Just my 2sense

29

2sense:

When you declare our government “tyranny” you are not using the word the way most people would. Our government is tyranny becuase of the Senate? Please.

How can anyone take you seriously when you say things that are obviously false? Our governmental system is the friendliest, most toothless, most accountable one ever devised in the history of history. Well, except Canada’s.

But the point is that we do NOT live under tyranny. The fact that you can claim that we do without the smallest hint of fear, the fact that Garry Wills can publish a book calling our government tyranny, proves that it is NOT tyranny.

Are you saying that we live under tyranny because the majority is prevented from establishing a state religion? Or that the majority is prevented from passing bills of attainder? Or that the majority is forbidden to quarter soldiers in private homes in a time of peace except in a manner proscribed by law?

You are like a child proclaiming his parents tyrants when they won’t let him stay up and watch TV.

30

**KellyM **:

First of all, I recommend a visit to the Explain in detail why democracy cannot exist in a republic thread. Your contibutions to this thread indicate that your political knowledge is fairly good, but America is a democracy. In theory, at least.

Lets examine that quote with a couple of mine from the post you were responding to.

What I am interested in are arguments. The Senate violates the equality of the citizens. If you wish to argue that this is a good idea then fine. If you wish to argue that the equality itself is a bad idea, OK. If you want to argue that this is untrue, great. I am not looking for explanations. I have heard them.

Having said that, I would like to point out that your explanation is wrong.

Just my 2sense
WHAT!!! i’m not good enough for you…is what you’re saying…i’ll have you know i’m prime random icq chat material - concrete

31

**Lemur866 **:

By all means, lets define our terms.

When I use the term I will be referring to either definition #1A, #1B, or #4.
Also note from the same source that the term “tyrant” can be applied to a usurper of sovereignty. I will be careful not to use “tyrant” in my arguments concerning the merits of the constitutionally mandated government, reserving it solely for the Framers. I believe there is some agreement here that they usurped sovereignty, though with the best of intentions.

My understanding of “tyranny of the majority” is that it represents the traditional fear on the part of haves that, given the chance, the many have-nots would avail themselves of private property through public power. I suggest a broad working definition of “a majority pushing its agenda at the expense of the rights of the minority”. If that doesn’t work for some reason, we need to agree on something else. When I make my “tyranny of the minority” arguments, that term will mean the same with the positions of “majority” and “minority” swapped in the sentence.

Gotta cite?
Cause yer gonna need a shitload of 'em to back up that assertion of biblical proportions. Even if you could back this up, which I figure could take months if I insisted we examine every single culture I could think of, it still wouldn’t omit the possibility of a government that is even more friendly, toothless, and accountable.

BTW- Have you ever read the The Iroquois Constitution?

Just my 2sense

32

My apologies. For some reason I read the September 29 riot as a December event. My error.

As to the nasty tricks that each side played, I am relying more on descriptions (however brief and lacking in context) than merely assuming that both sides engaged in them. From the NARA site I originally linked:

33

(You won’t find me voting for Karol Wojtyla.)

34

2sense:

I fail to see how the citations to Madison in any way counter my point about the disproportionality of the Senate. They certainly suggest that Madison (who is, of course, only one of the Founders) had some intentions in mind for it, but that isn’t even pertinent to what I claimed.

Further, you are wrong about the United States being a democracy. It is not and never has been a democracy. Anyone who told you that it is was lying. The United States is a republic, or at best a representative democracy.

35

2sense: I’ve never heard the tyranny of the majority used to mean that the haves are afraid of the have-nots. No, it is mostly used in civil liberties arguments.

Should we allow our civil liberties to be negated by simple majority vote? No, of course not. There are some things the people/government are forbidden to do, no matter how popular they are.

Can you really want to repeal the bill of rights? Is that your goal here?

And my assertion that we live in a user-freindly governmental system is not subject to cite, it is a common sense observation. Obviously, hunter-gatherers live under a “freer” system than we do. But they are also not protected from the whims of their neighbors like we are.

If you can’t see that we live in system that allows more personal freedom than 80% of the planet, then I pity you since you could never be happy anywhere.

Your argument that the Senate is tyranny is silly. There are many features of our system, or any system, that give some people more leverage than others. Look at parliamentary systems around the globe. These give small parties tremendous power when no single party has a majority because they can shift their votes between the majors. Is that tyranny? Or, under our system, the president can be elected by a minority of voters, like Bill Clinton was. Or the state of New York can enact laws that the rest of the country disagrees with. The minority of voters who live in the town of Springfield determine who will be mayor of Springfield. Why should that minority have more power than the majority who don’t live in Springfield?

Anyway, could you explain exactly how abolishing the Senate would make the average person’s life better? Sure, if we were designing a system from scratch we’d probably do it different. But, our system happens to work well enough that there is no drive to change it. You argue that we are living in a dream world. Perhaps you should look at yourself. If the majority decides that your views are wrong, then who are you to decide differently? The majority of the American people favor the status quo. That’s why it stays that way.

36

This sort of objection seems more than slightly sterile. If one is taking the position that only direct democracy is democracy --in my mind an unnecessarily and unsupportably narrow definition-- then the USA is not a democracy. But then under this unrealistic definition, there are no democracies in the world – at least at the nation level.

However, under any ordinary definition of the world the USA is certainly a represenative democracy. It also has a Republican government framework, a mechanical fact which neither requires nor excludes democratic governance per se.

So, perhaps we can drop these rather silly arguments?

37

Re: the hijack

Taking the land you live on for granite is not very gneiss!
Re: the OP

I’m not particularly interested in “original intent.” It works; don’t fix it. Or fix the few parts that don’t work right. And remember that a lot of things would have been different if it hadn’t worked out the way it did. (Read Harry Turtledove’s Great War series for a well-depicted dystopia right here in North America.)

38

Poly, dammit, don’t you ever get tired of being so right and so sensible? Your evil powers of telepathy keep stealing my ideas before I form them. Bastard.

2sense, did you ever stop to consider that the founders would be flat-out horrified if they came back today? (Except Franklin - he’d love all the strip joints :D). They set up a nice, cozy, self-perpetuating system where the landed classes would rule the rest, where government had little to no ability to interfere with business relations, and had very little power to tax.
If they were setting up an elitist plutocracy, they were too clever by half - they prettied it up with talk of democracy and rights. Unfortunately for them, people later took those words seriously.

Sua

39

Sua: :stuck_out_tongue:

You think maybe I should make every tenth post read:

[channeling SuaSponte]
{Intelligent comment on how the OP has misinterpreted a perfectly clear law}
[/channeling SuaSponte]

Although Jodi has us both beat, and months of precedence on this board over either of us to boot!

Actually, though, I’ve never encountered a sponte that upset me enough to make me want to sue. :wink:

40

Tom:

Having never seen you jump to a conclusion, I realized that I was probably missing something.
Embarassingly, I missed something linked to this very thread.
Thanks for pointing it out to me and thanks for the providing a date on that incident.

KellyM:

I understood your reason for the formation of the Senate to mean that it was created accidentally by a political compromise rather than deliberately due to a political motive. If not then let me know.
The accidental concept is incorrect. I disputed it by showing that Madison believed a function of a Senate to restrain the lower house. I further showed that the very motive of property rights was raised in the deliberations over the proposed senate for the new government. Yes, Madison is only one founder; however, he is the only one known as The Father of the Constitution. If you are questioning his quotes because they may reflect his bias, then that same bias could have had an effect on the Constitution.

If we were arguing in a vacuum then I would hope you would accept my point. But that isn’t the case. An understanding of an upper chamber isn’t to be unexpected among the colonists because they had always been governed under the bicameral Parliament. The functions of the House of Lords were no mystery. Furthermore, they had been living with bicameralism since the Revolution. The only state government that I am aware of that didn’t have an upper house prior to 1787 was Pennsylvania.

That Founders’ Constitution site has plenty of historical quotes and there is a search engine. This page, an account of the proceedings of the Constitutional Convention yields the following information:

Edmund Randolph engaged in some virulent rhetoric on “the turbulence and follies of democracy” and felt the Senate might curb this. George Mason, Roger Sherman, and Elbridge Gerry felt that the Senate shouldn’t be appointed by the other branch of the legislature. Sherman gives the reason that being dependent on that branch would defeat the purpose of having a Senate. John Dickinson “wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible…”. James Wilson argued that “He could not comprehend in what manner the landed interest wd. be rendered less predominant in the Senate, by an election through the medium of the Legislatures than by the people themselves.”

As you see, the idea that property would be protected by the upper house wasn’t limited to Madison. The Senate was intentionally undemocratic. From this letter from Madison to Edmund Randolph shows that he was contemplating a Senate even before he got to the Convention.
The idea that the legislative bicameralism was accidental is incorrect.

Just my 2sense