Rousseau’s Covenant

The French philosopher Jean-Jacques Rousseau proposed ideas in the 18^th century about the fundamental nature of humans and their societies. While his views on individual human nature were generally optimistic, he was quite pessimistic about the qualities of society. He wrote that, while we are born virtuous and free, civilization will inevitably make our lives unpleasant. The opening statement of his famous work, On the Social Contract, reflects this sentiment: “Man is born free, but everywhere he is in chains.”

Much of Rousseau's philosophical work was about how to counteract society's and governments’ harmful influence on each of us. His concept of the “social contract” was a way protect our freedom. It is basically a covenant between the populous and the government which assures that citizens have the ability and right to rein in government, when it threatens to break that contract. Such a well-ordered society cannot endure, however, if there does not exist some kind of common will of the people. There needs to be some cohesion among citizens… some coming ground. Once citizens begin to fragment, however, they will lose their authority and their control, allowing the government to seize power and begin to violate the general will and harm the populace.

Whatever kind of regime is established—that is, whatever form of government is created—in order to be legitimate it must implement the will of the people, by creating a just society that provides for the common good. In this manner the government becomes the executive, while the people are literally sovereign. In fact, the people should be the source of laws that govern society... because those laws must be formulated in the interest of citizens. If instead, the government makes laws, then the people ought to have the authority to accept or reject them. The critical point is that the government should be implementing the will of the people—not dominating or controlling it.

The USA Constitution enshrines this concept by its very opening words: “We the people of the United States...” The Constitution goes on to define the government as being formed into three balanced branches: executive, legislative, and judicial. Yet the core of the Constitution is the concept that all three branches must still be subservient to the will and welfare of the people. It is, after all, “We the people…"

Rousseau was concerned—if not convinced—that governments so justly conceived, will inevitably violate that contract by seizing inordinate power and responding chiefly to the desires of the rich and powerful. I think one could make a good argument that that is exactly what is happening in the US today. Things are out of balance. The needs and welfare of the people are being disregarded by the rich and powerful in Washington, DC, as well as in state capitals across the country.

Constitutional Compromises

In the previous blog I focused on the US Constitution's priority of protecting citizens' rights—to the unfortunate omission of their welfare and needs for education, health care access, or food. The Constitution was preoccupied with rights, rather than welfare. Another fatal defect of the Constitution was its compromise between northern and southern states over the issue of slavery.

The North generally adhered to the concept that “all men are created equal,” and believed that slavery was a fundamental denial of that ideal. The South's agrarian economy was completely dependent on the free services of enslaved people, however, and it adamantly refused to join the union, unless the institution of slavery was protected.

The result was a Constitution that attempted to gloss over the slavery issue by not even mentioning it, while acceding to the South's demands in two momentous ways: (1) the US Senate would constitute two representatives from each state—regardless of population, and (2) for purposes of determining the number of representatives in the House (which goes by population), slaves would be counted as 3/5 of a person (an appalling compromise). The less populated states of the South thus gained an inordinate advantage in Congress, which allowed it for seven decades to block any national legislation that would be to its disadvantage.

The unsustainable constitutional compromise finally ruptured in 1860, when Abraham Lincoln was elected president. In response, the South not only seceded from the Union (a constitutionally illegal deed), but committed an act of war by firing on a federal fort. The provocation was answered by the North declaring war on the South. After several years of vicious combat that caused massive destruction and loss of lives, the South surrendered. The US Congress—at the time dominated by northern states—abolished slavery and offered full citizenship to African enslaved people—including voting rights.

A new day seemed to have dawned in America, as Congress soon passed several additional laws that promised full rights to Blacks. Tragically, a new compromise was made, that canceled the federal government's Reconstruction Program, which would have ensured that the rights of Blacks would be equivalent to those of European descent. That compromise installed Rutherford Hayes as president, in exchange for an end to Reconstruction.

Although the Constitution (amended after the Civil War to eliminate the original compromises to slavery) officially guaranteed freedom and rights to formerly enslaved people, the South found new ways to block legislation and deny freedom to Blacks. The Jim Crow era (enabled by the end of Reconstruction) began. Nearly 100 years later new federal laws were once again implemented, spurred on by civil rights demonstrations throughout the South in the 1960s.

Despite these attempts to rectify “civil wrongs,” US institutions retain a significant degree of racist attitudes embedded within them. Much of that prejudice can be traced back to that original constitutional compromise, which formed the foundation of a national racial unjustness that persists, over 230 years later.

Constitutional Curbs

The US Constitution is a momentous document that is recognized around the world as establishing one of the world's earliest forms of democratic governance. It was written and ratified two and a quarter centuries ago, and continues to provide the fundamental principles of our country's legal procedures. Many more recently-written constitutions of other countries have modeled themselves on the US Constitution, but have often included changes that reflect the progression of democracy in the last two centuries; while ours often appears mired in an outmoded era.

The US Constitution is a peculiar document, that was created in a particular situation, which possessed two foundational perspectives: (1) having just acquired independence from Britain, the constitution's framers were extremely wary of setting up a government that might allow a despot (a monarch) to possess inordinate power to quash individual rights, and (2) the struggle of balancing the concepts of freedom and citizen rights with a Southern economy that depended on slavery (which denied rights and freedom to millions of Africans).

Thus, the constitution became a charter that mostly describes what the federal government cannot do—rather than define what it should do. In essence, it is about negative law. It's mostly not about positive law, because it focuses on various checks on government... it literally curbs the authority of government. It's more about protecting the rights of citizens and the states. The US has always been a country that values rights and freedoms of its citizens. Americans hate to have their autonomy restricted in any way. After all, many of our first immigrants were fleeing constraints on their lives and viewed the New World as a chance to conduct themselves as they pleased. These same ideals helped spawn the French Revolution, just a few years after our revolution.

With the emphasis on freedom from government interference and one's rights, particularly in the context of the constitution's negative laws, the US Constitution is largely unconcerned with citizen welfare—such as the right to education, health care access, or even food. These welfare rights are often suspiciously regarded in the US as possessing socialistic values. Thus they are seen as privileges, which are outside the purview of government, or that even can be denied or taken away by the government. Even the Bill of Rights—which prescribes rights that the government must not abrogate—says nothing about welfare.

Only in the 1970s did the US Supreme Court come to regard welfare as a citizen right—rather than a privilege. Why did it take so long? It was largely because by then a significant portion of citizens lived in urban environments, rather on the farm—where they had once owned land... that was their property. While property has always been considered a basic right in the US (a fundamental tenet of capitalism), 20^th century landless Americans needed welfare to survive (having no longer held property), so welfare became their new right. Yet socialism remains a disfavored form of government.

Next time: a more troublesome feature of the US Constitution…

Presidential Powers

In the aftermath of the US succeeding in its revolution that cast off the colonial oppression of England in 1783, leaders of the former colonies met in Philadelphia, to thrash out a constitution for the new country. They were fully aware of the fact that they were creating a new state and hoping that its governing process would be robust and unprecedented. They wished to forge a democracy that was modeled on a republic created some 2200 years earlier in Greece.

Having just shaken off the heavy-handed rule of King George, they were determined to avoid setting up a form of government that would again control the American populace with monarchical powers. In their minds, the new country would need an executive who had the power to manage its affairs, but who would also be restrained by two complementary branches of government: the legislative and judicial branches.

The country's founders, besides being concerned about limiting presidential powers, were also wary of establishing too much democracy. They were chary of setting up a “tyranny of the majority,” wherein the ignorant and uninformed masses would become influenced by emotional and feverish ideas and vote for foolish programs and compelling ideas put forth by a charismatic person or cabal.

The founders were, after all, prosperous and educated men. They possessed ideals of how a democracy should behave, but had elitist biases about preventing the mob from taking over. Plato held similar apprehensions about democracy in ancient Athens—that uninformed commoners would force unwise actions. These concerns of the framers of the US Constitution in 1787 resulted in establishing the Electoral College, which would correct for a possible foolish popular vote for a president.

The constitutional fathers debated long and passionately on how to create a constitution that would prevent any one individual (the president) or group (the masses) from seizing too much power and sending the country off into chaotic behavior. They did a remarkable job of it. For over 200 years the checks and balances they built into the document have kept the US from careening out of control, when imbalance threatened.

After the Constitution was drafted and sent to the 13 states for ratification (which occurred two years later), many people expressed concerns about some of its provisions. For one specific example, George Mason of Virginia was disturbed that it allowed the president to pardon convicted criminals. He could foresee the possibility that an unscrupulous president would encourage his faithful minions to commit illegal acts on his behalf and then pardon them, after they were convicted. Mason thought that this provision of the Constitution would allow a deceitful president to become an autocrat who would then take control, not unlike King George.

Mason was vocal about his fears, and threatened to stop Virginia from ratifying the proposed Constitution. Virginia's approval was crucial. During the state's debates, John Madison convinced George Mason to relax, by telling him that surely if ever a president went that far, he would quickly be impeached and removed from office. 

The founding fathers wrote a constitution that successfully guided the country for over two centuries, yet Donald Trump has utilized both the Electoral College intervention and presidential pardon power to indeed establish himself as a would-be autocrat. The Electoral College process awarded him the presidency, despite his losing the popular vote. That constitutional process of the forefathers backfired.

In addition, Trump has currently pardoned two of his convicted henchmen, who broke laws on his behalf. George Mason surely must be agitatedly rolling in his grave.