How EXACTLY Does the Constitution 'Protect Our Freedom'?
Discussion thread. Expertise and opinions wanted.
It is an article of faith in the American mythos that the United States Constitution “protects our freedom.” For some, the belief is that it was designed to do so, but has since been perverted away from that aim. Others think it’s doing a swell job even now.
A thought has popped into my head several times recently, and more intently over the last few days, and it has come up in several recent comments, so we might as well make a discussion thread out of it. So as not to bury the lede, I will try to summarize the thought, and then unpack it thereafter.
Basically…
What if it is not some specific provision of the Constitution that protects our freedom (to whatever extent is actually does) but rather simply all the inefficiencies built into it?
The Founders were terrified of what they called “democracy.” But what they actually meant has since been given the label arithmocracy. Commenter John Ketchum nicely sums up the concept with this brief vignette:
Still, the expression “Democracy is two wolves and a sheep voting on what to have for lunch” is uncomfortably close to reality. Pure democracy has an unfortunate theoretical consequence: it's potentially self-destructive. It's logically possible that 51% of the population could vote to kill the other 49%. If majority rule prevails, that 49% face death. The remaining 51% could be further divided into 51% who want the other 49% dead, and the process could continue until only three individuals remain alive, the proverbial two wolves and a sheep. After the decision of the two “wolves” is carried out, democracy ends because there is no longer the possibility of a majority.
Pure arithmocracy is obviously an epic fail. It must have safeguards put in to prevent a simple majority from oppressing the minority.
The Founders created a series of such roadblocks: Multiple branches of government. Two legislative bodies with different purposes. Procedures designed to slow down the progression of legislation, to prevent sudden lurches driven by temporary passions.
They also allowed for the existence of a layered system of divisions of governance (federal, state, county, local), each with its own similar mechanisms. This system of subsidiarity reduces the likelihood of sudden drastic changes, because each division (putatively) has its own purview and sovereignty, and will jealously protect it from the others.
In The Basic Problem of Government,
quickly shreds the idea of checks and balances (and other mechanisms) as a means of protecting freedom, but let us, for the sake of argument, take the Founders at their word. They tried.We will also ignore things like the Sedition Act, which happened under (and though the direction of) America’s second president) and give them all the benefit of the doubt. They tried.
(We also have to ignore some of the shady ways in which the Constitution was rammed through, but that is a separate story.)
For the time being, we will set aside the Bill of Rights—a wise addition by the Anti-Federalists that really has obviously helped protect some of our rights. (Without our 1st and 2nd Amendments, our speech and gun rights would look exactly like they do in other Anglophone nations.) Setting that aside, what is it—exactly—that “protects our freedom”? What specific clauses or provisions?
Article 1, Section 8—which enumerates the powers the federal government is supposed to have—has been completely ignored. Madison promised that the enumeration of powers was proof that the federal government would not have plenary power. After all, why bother enumerating powers when you can just say, “The federal government can pass any law or take on any role it wishes.”
But that is exactly what we have now anyway.
In Wickard v. Filburn, the government decided that a farmer growing wheat on his own property, in a single state—not for sale, but to feed his hogs—constituted interstate commerce. The purpose, of course, was intentionally to warp the Commerce Clause to give to give the federal government the power to name anything it wants “interstate commerce,” thus giving them authority over every transaction that takes place anywhere. So, no help from the Commerce Clause.
How about the General Welfare and Necessary and Proper clauses. “General welfare” was supposed to have been meant—or ought to have been meant—in contradistinction to “specific welfare.” In other words, laws should not be passed that benefit one group at the expense of another—that all laws should be for the general benefit of all the people concerned. And “necessary and proper” was a simple statement that laws would need to be passed to carry out the specific roles allotted to the federal government, so the government must have the power to make such laws.
Naturally, both clauses have been warped in order to justify arrogating authority far beyond what the Constitution actually describes. So no help there either.
Madison and Hamilton promised us in the Federalist Papers that the Federal government would not have plenary power, yet the federal government took it anyway. In fact, they made a lot of promises that have proved false.
I used to believe that this was the result of malign forces slowly perverting their noble intent over the decades. And that is true, to a degree. But I have also lately come to understand that the Federalists were committed centralizers. They wanted a strong central authority, and they bullied states, and the Anti-Federalists, in order to get it. And they got it. It walks like a duck… It talks like a duck… It created a strong central government just like a strong-central-government-loving duck would want…
And let us return to the Bill of Rights. What happened to the 9th and 10th amendments? Those were necessary protections on their own merits, and they were also required to secure the support of certain individuals and states…support without which the Constitution might not have been ratified at all. And yet those two essential amendments are completely ignored now.
So what is left? What is it, exactly, that is “protecting our freedom”?
The Founders built in a series of inefficiencies, designed to slow the pace of government action. They wanted to restrain the tyranny of the majority and prevent sudden lurches hither and yon. All of that is good.
But…
Setting aside the Bill of Rights (at least those amendments that are still partially respected), are those inefficiencies all that is keeping us from greater tyranny? What specifically is the Constitution doing, other than slowing the pace of its own steady erosion?
These are still comparatively inchoate thoughts, and I am by no means a constitutional scholar, so I would like to solicit any views and expertise you might have. Please tell me, if you can, exactly what clause or section of the Constitution is actually securing our freedom.
I am not looking for gauzy references to the “intent” of long-dead humans in powdered wigs and tricorne hats. I have made enough of those references myself over the years!
Rather, I am hoping for something specific. Other than the roadblocks built in to make the process clunky and slow, what else is actually helping to make this a “free country”?
Substack is a job for me—one I cannot continue doing without your support. Please consider throwing a cup of coffee my way. (Just warn me first, so I can duck!)
The Constitution protects nothing, in of itself, anymore than the Bible (or the Torah or Koran or Bhagavad Gita) magically connects one to the divine. Its power lies in those who have faith in it, and their willingness to protect the principles therein.
And we have failed. Miserably.
From the passage of Amendments 16 and 17, to sitting on our hands while courts raped civil liberties, to continuing to support politicians (either by choice or through apathy) who have done nothing but attain power for themselves, we have failed.
We have almost completely converted from a Constitutional Republic to a Democracy, and we have done so through apathy, laziness, and a desire for comfort. The Constitution, with the Bill-Of-Rights, were the TOOLS for us to protect our liberties for ourselves - we can hardly say it failed when we have seldom bothered to even pick up those tools.
And before you mention me using the 'Republic vs Democracy' duality, yes, I read your other post this morning, had not had to respond to it as yet. If I may speak as 'one of those in the back' to whom your referred, I can say with absolute confidence that making the distinction between a Constitutional Republic and a Democracy is more than valid; suggesting they are not that different is like saying a dolphin and a mouse are the same because they are each mammals. Yeah, they share some base similarities, but still very different animals.
So no, there is no one thing in Constitution which can save our liberties by itself, and there never has been. We still have to put in the work, and if continue to choose to blow it off as worthless then yes... that is exactly what it will become. Worthless.
Because of us.
Sorry so rambling, at work and cannot spend time polishing structure and grammar like I normally would. Great topic, by the way - thanks for opening it up.
Your question made me think of a conversation I just had with a neighbor I have in New Hampshire. We were talking about squatters and he said the best way to take care of that is with a 9 mm. Let’s face it, when our government forces this inevitable collapse the second amendment, in certain states, is the only part of the constitution that will help to keep us from certain death. Hopefully you will have enough ammunition.