Founding Fathers Blog

The Constitution – Intended to Endure for Ages

September 6th, 2012

It was Labor Day. I was having lunch with several of my friends and neighbors. At some point I decided to ask:  “We are enjoying Labor Day. So now I ask you, what is the next federal holiday to celebrate?”

Those around the table looked sheepishly at each other. One finally volunteered, “is it Columbus Day?’

“No,” I said, “the next holiday is between Labor Day and Columbus Day.”  They seemed embarrassed and even chagrined–but no one came up with another federal holiday.

So I gave some hints. Big ones. Like it’s on September 17. It’s sort of related to July 4th. It has to do with the founding of our country. Still no one even hazarded a guess.

Finally I had to announce:  “It’s Constitution Day, the observance of the day the United States Constitution was signed by the 55 State representatives. The Day our Constitution went into effect.”

The result was an unenthusiastic, indifferent, uninterested and even a detached: “Oh.”

And that, it seems, is the way we, as a people regard this amazing and inspired document. Oh.

“Isn’t it out of date?  Who pays any attention to it any more? Why don’t we just scrap it?”  Even our President thinks it’s out of date–and he taught Constitutional law in Chicago.

At times it seems we have forgotten the inspired, magnificent and noble history that gave us this grand document.

As a business attorney, I have often compared our founding documents to those documents which are necessary to create a company, a corporation, or a limited liability company. To begin a new company you must first have “Articles of Incorporation” or “Articles of Organization.” These words establish a new company.

Just like those, our Declaration of Independence sets out the words to create a new company–or in this case, a new country. A war was even fought over those words. They were so important. And a new country was created. The United States of America.

Then to determine the rules of operating the new company, an additional document must be agreed upon. The next needed document is a set of “corporate by-laws” or an “operating agreement.”

Your new country  will also require such rules or by-laws. That is what our Constitution of the United States was drafted to do. Present the rules for operating the country.

Please notice the document is titled:  “The Constitution of the UNITED STATES.” (emphasis added.) Some citizens, history teachers, and even politicians have forgotten this is a country made up of 13 original sovereign States–now 50 sovereign States.

That fact was so important to our Founding Fathers, that they fought diligently to protect it in the “operating agreement.” The Constitution. It was a major issue in the original debates. The two main leaders of the Convention, George Washington and James Madison, had disagreements over this issue. It was finally agreed upon. A compromise was accepted.

The Founders feared that the larger, more populous States would be able to overwhelm and overpower the smaller, less populous States. That’s exactly why they set up the electoral college to elect a President. And it’s why they required the Senators to be  elected by the States themselves, rather that the population at large. This was referred to as “The Great Compromise” which led to final agreement.

It was smart, it was prudent, it was innovative. It gave stability and protection to the nation.

That’s why I believe it was unwise and shortsighted to change this protection for the smaller states in our operating agreement, our Constitution. When the seventeenth Amendment was ratified on April 8, 1913, it radically changed our nation.

No longer did the States elect the Senators. Now the electorate at large elects the Senators–just like they elect the members of the House of Representatives. No difference. So technically there is no longer anyone elected to represent the interests of the individual separate and sovereign States.

What difference does that make? you may ask. After all, they all represent the people.

Let’s just take one example. The recently passed health care bill.  It’s doubtful that that bill would have been approved in the Senate, when the Senators all became aware of all the undefined, onerous, and unfunded mandates which under that bill became the responsibility of the individual States. The Senators, representing the interests of the States would have demurred.

Likewise, we can see the individual States now beginning to recognize and fight back about this bill, and about the lack of protection for the states in fighting the abuses of illegal immigration.

When making decisions on how to run the country, look to its by-laws, its operating agreement, its Constitution. Don’t make decisions without resorting to the rules. And don’t change the rules without considering all the ramifications.

Did we make a mistake with the 17th Amendment?  Yes, I think we did. Let’s not make the same mistake with the Electoral College. Listen to the founding fathers. They really did know what they were doing.

As former Chief Justice of the Supreme Court, John Marshall, said:  “The Constitution is intended to endure for the ages to come. . .”

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