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    Monday, May 22, 2006

    The Constitution and my wife

    Here's my wife's second essay on the founding principles of the Constitution. As before, she is taking a class, "American Heritage," which functions as a politica-history class. I help with ideas, brainstorming, grammar, vocabulary, and editing.

    Warning, it is long. Read at your own risk!

    *****Essay 2 by My Wife (quotes may be used with proper annotation. This work may not be reproduced in full without the expressed written consent of the author. A reminder, everything on this blog is under copyright)*****

    One of the favorite foods in Vietnam is rice paper. It is used in many ways. Some people wet it, and fill it with chopped meat, and vegetables, then roll it and eat it as spring rolls. Others put in rice noodles, big leaves of lettuce and mint, and beef, and then roll it in half. In both cases, the rice paper is not the center portion of the food that the palate tastes—it is the structure used to hold all the various ingredients together. Rice paper is chosen for this work because of its flexibility, its size, edibility, taste, and look. In just this way the Constitution influences our lives. It is not the main law that Americans see every day—but it is the underlying structure that holds all laws together. And the principles of the Constitution, like the attributes of rice paper, are what gives it this ability and makes it special.

    One of the basic principles of American government is the sanctity and amorality of the Constitution. It is a written fundamental law higher than man or government. The Constitution is a legal document that serves the country and its people—not a moral theory. The Framers of the Constitution did not use it to expound certain moral theories or beliefs or enforce righteousness. In fact, they tried to keep morality from the Constitution on purpose. They believed that a document focusing on truth and justice, without preaching morality, would accumulate support from the individualistic Americans who did not want someone or something telling them how to live their lives, and who were inherently virtuous anyway.

    This pose on amorality stemmed from a strong belief in natural rights, like those described by John Locke, and an opposition to British common law. Americans felt that the Constitution outlined all the basic rights citizens and the government had, thereby making it impossible for someone to pass a law contrary to these basic rights, and that by writing down the Constitution, it would serve as a clear benchmark to judge laws passed later by Congress.

    Today we see the wake of these of ideas in the turmoil over Supreme Court Justices. Ultimately, all controversial decisions about the constitutionality of a law appear before the Supreme Court. When Pres. Bush nominated Justice John Roberts and Samuel Alito, they were subjected to extreme scrutiny from all parties because their voices would be the voice of the constitution. Also, this principle is shown clearly in the language of today—just two sentences earlier. People talk about the “constitutionality” of things, of laws. All actions are not answerable to the government, but to our constitution.

    Creating an amoral document did not mean the Founding Fathers wanted an amoral government. In fact, they hoped for the opposite. Madison argued in Federalist 43 for not just any government, or any form of self-government, but for “good government.” The Founding Fathers lived in a land with a strong emphasis on Christian moralism, and to achieve this, they expected virtue to pervade, influence, and guide the actions of the polity. In Vietnamese, virtue is “duc hanh,” the combination of “duc,” meaning morals or righteousness and “hanh,” meaning good nature or sweet character. Its overall meaning is “behaviors that show high moral standards or goodness.” The Constitution was written with the expectation that a moral populace could be trusted to vote and elect leaders in a federal republic.

    The Founding Fathers also realized that communication and coherent political process in between such a large population in a spacious country would be weak and inefficient at best. In order to merge their hopes with the reality of America, they settled on the principle of popular representation. Popular representation was a republican form of government more than a democracy. People chose individuals who would represent them in the government. This way, the numerous, varied, and sometimes specific wants of the populace would be relayed efficiently to the government, and the often unpopular and necessary laws could be relayed back to the governed. The Framers, believing people to be inherently virtuous, expected the people to choose representatives more virtuous and intelligent than themselves.

    Today we see the importance a virtuous candidate has in the political process. It is widely accepted that the sexual misconduct President Clinton did with his aide, Monica Lewinsky, occurs often between coworkers in the workplace. Yet, the scandal seized the attention of the American public for years. Why? Because a president is supposed to be above such moral lapses in character. Any student of history can find plenty of examples of past presidents and sexual license (Thomas Jefferson and children by his slave), but most instances were kept under wraps. In retaliation, President George W. Bush has served two terms in office riding the backlash of this scandal—the growing power and popularity of a morally-conservative Christian movement in the Republican party. His allegiance to them, a portrayal as a down-to-earth politician with a genuine love for his wife, answered the virtue questions that Pres. Clinton raised, and overcame other political shortcomings (a controversial war, etc.) to earn him victories over both Al Gore and John Kerry.

    The Founding Fathers realized that nobody was virtuous all the time. Some people were never virtuous. Often when personal benefit and virtue crossed each other, self-interest would be the first choice. Laws and government structure based on self-interest is called auxiliary precautions because all actions taken with self-interest as a guide are supposed to be auxiliary to virtue.

    Due to auxiliary precautions, the Framers of the Constitution structured this document according to the principle of counterpoise. Everyone has his or her own interests that might conflict with others’. One interest is balanced against another, so no group can be in control. This helps maintain the power of balance and control within a large republic. It also led to the principle of shared sovereignty.

    Using counterpoise, the Founding Fathers insured that people choosing leaders out of self-interest instead of virtue would never gain a permanent hold on the government by setting up a federal republic. A classical republic often lost effectiveness due to factions. This attribute was of extreme importance to those like James Madison, who wrote in Federalist 10 against all forms of factions. However, Madison counterintuitively rebuffed the arguments against republics by saying that the larger the republic the less corrupt it would become. The more tiers of government, the more factions would be represented. It would be easy for a representative to represent one faction if he or she represented one small group, but a larger group would have more varied needs and would be less likely to be ruled by one faction. Modern political parties, although factions, rely on such a broad support base of people, that the sub-factions make it extremely difficult for one faction to control a government and oppress the other.

    A strong central government was also likely to be led by one faction; however, a government where the federal government shared some sovereignty with the states muted this point. People living in states would work for their own self-interests—states’ interests—and those on the federal level would argue for federal interests. Often these two outcomes would be at odds with each other. It also let people turn to the states for specific needs that would be poorly addressed at the federal level. Today this is seen again with the marriage issue. When Massachusetts legalized same-sex marriage, many other states’ voters opposed the idea by writing amendments to their constitutions defining marriage as between a man and woman only. This freedom of states to legislate for their constituents provides a laboratory to see what works before implementing it on the federal level, and allows the government the flexibility to meet individual needs of states without affecting all other states.

    Such a balance of counterpoise was achieved by structuring the Constitution according to the principles of separation of powers and checks and balances. The Founding Fathers were fearful that an omnipotent executive could usurp power and create a monarchy. On the other hand, without a strong central government, the representatives of the people and the states (House and Senate) would be about as weak and inefficient as the old Articles of Confederation government. First, they divided powers. By creating an executive branch that is responsible for administering the laws and a legislative branch that is responsible for creating the laws, the desire for reelection by the people would keep the branches working towards separate goals. There would be little incentive to create a “grand coalition” because carrying out the laws and international duties had a different set of goals than creating laws. This set up prevented Congress from passing laws to achieve a particular purpose because it did not enforce the laws, and it would never want to give up that power to an executive either. The two branches became counterweights.

    In addition to separation of powers, the Founding Fathers introduced checks & balances. The executive office was given a veto power over bills and the legislative branch could override the veto with a two-thirds majority. The judicial branch checked to make sure all proceedings followed the Constitution, and in return the justices must be appointed by the president and approved by the senate. This set up not only gave separate powers, but made the three branches fundamentally at odds with each other on some basic points. A popularly elected president would reap the blessings or cursings of bad federal legislation, and would be free to enforce or veto as necessary to keep himself in office. Meanwhile, a representative of senator must create laws that reflect his or her constituents’ views—that might not reflect the average American voter—and if enacted might benefit the senator at the expense of other Americans.

    Today, the immigration question highlights the balance of powers in the American government. A republican led House passed a bill restricting illegal immigration by building a wall and making it a felony to be illegal. The Senate, also republican led, cannot pass that same bill because (ironically) a republican president would veto it. He is pressing for worker permits that are far more liberal than many senators’ constituents want. So, the senators are caught between a rock of a house bill and a hard spot of easy “amnesty” (as opponents call it). Pres. Bush does this because he is trying to court Hispanic voters on a national stage. Senators, meanwhile, worry about their constituents, which may or may not be predominantly Hispanic. If not, they have little incentive to vote the way President Bush wants.

    Ultimately, the Constitution of the United States of America became one of the most libertarian of all documents in this government. It hoped for virtue from citizens and leaders, but expected self-interest. Through that expectation, it setup a system of counterpoise, by playing the goals of the branches of government off each other. By sharing sovereignty with the states, the federal government gained flexibility to meet the needs of smaller constituencies without sacrificing a strong central identity. Ultimately, the constitution became the perfect skeleton to hang an ever increasing and changing set of laws and statutes.

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