Like most patriots, all my life I've accepted and agreed with the conventional wisdom than the US Constitution was a work of genius.  That the system of checks and balances it created created the best system of government in history.  I've always believed this and been angered and disappointed that this country has strayed so far from it.

The Constitution was, we were taught, to create a national government with designated, enumerated powers, and that government was to be limited to only those enumerated powers.  The states would retain their sovereignty.  As an exclamation point the 10th amendment makes clear - all powers not delegated to the national gov't are reserved to the states or the people.

Lately I confess I've come to question my high opinion of the Constitution.  If the Constitution, with its vast system of checks and balances was designed to keep the national government in check, I think we have to admit that it has been a complete failure.  Our Federal government today accepts no limits on its power or in the areas in which it can regulate. Nancy Pelosi:  "Are you serious?".

How did the Constitution fall short?

Well, there were men at the time, some of whom were at the Constitutional convention who predicted the Constitution would lead to the domination of the states by the national government.  Parick Henry, Luther Martin, George Mason were among them.

Those men have been proven right.

How did it happen?

I believe the Constitution failed due to several important omissions.

1.  Secession

If states cannot secede from the union they joined, they will ultimately have no sovereignty.  While I admit there are serious problems that arise if secession is allowed, the fact remains that without that ultimate card to play, the states are prisoners with little recourse to abuse.

The Constitution says nothing about secession.

2.  Nullification

Nullification includes the states among the checks and balances of determining constitutional enactments.  Without nullification, if the 3 branches of the federal government fail in their duty to uphold the Constitution, the states have no legal recourse.

The Constitution is mute regarding nullification.

3.  Judicial Review

The Constitution is also mute regarding Judicial review.  In fact, it makes no provisions for the eventuality of blatently unconstitutional laws being passed.  Judicial review was adopted, but the way in which it has evolved has resulted in TOO much power residing in the Supreme Court, whose members are beyond our reach once appointed.  A little more thought in this area was called for, I think.

These three omissions are just some of the Constitution's weaknesses that occur to me; there are doubtless more.  The point is the Constitution is not perfect, in my opinion, and I believe at least some of its framers intended our current situation to come to pass.

Shupe

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Replies to This Discussion

I would suggest a very good book regarding the Constitutional Convention, which presents the arguments, pro and con, for what was finally included within the Constitution, "Plain, Honest Men" by Richard Beeman; and regarding the state's ratification of the Constitution, "Ratification - The People Debate the Constitution", by Pauline Maier.

The concept of nullification was not addressed, at least as far as a state nullifying laws enacted by Congress, though a proposal that would have given the national government veto power over any state enactment was turned down.

Regarding Judicial Review, if you read Marbury v. Madison [5 US 137], you will see that the concept of Judicial Review is quite justified and supported by the Constitution. Unfortunately, since Marshall made such determination, things have changed, drastically.

There is one "right" in the Constitution that does support nullification, though not by a state (unless they choose to participate), rather, through the courts, using Habeas Corpus.

I am currently writing an article about Habeas Corpus, which I will post here, as it is completed.

In the meantime, you may want to read "About Ashwander V. TVA", which is where things began taking the course that has lead to our current problems.

Nullification seems to me the only weapon the states have when all three branches of the federal government collude to ignore constitutional restrictions on their power.

The 15th and 16th amendments, however, further sealed the doom of a limited federal government.

Since those were constitutional amendments legally passed, we can't argue that they were powers unlawfully taken.  Those amendments, ratified in 1909 and 1912 we done at the dawn of the "Progressive" movement.  Removing US Senators from the selection by state legislatures was far more damaging than is realized, I think, and has played a large role in the passage of federal laws with ever more thin constitutional authorization.

Marshall made a case for judicial review. Whether justified or not, it was not spelled out in the Constitution, as was the case with the Presidential veto, for example.  It was left to Marshall to assert the power.  Andrew Jackson felt it within his power as President to ignore Supreme Court rulings. 

I agree with you that it was the New Deal which was fatal to the idea of a limited government.

But it was not just the court decisions but the fact that the laws were passed by Congress and signed by a President all of whom had sworn oaths to protect and defend the Constitution.

All 3 branches - and the states -who were supposed to be the biggest check- were by then without the means to do anything about it.

Brad,

First, let me correct you are dates regarding the 15th and 16th amendments.  The 15th amendment was ratified in 1870, the 16th in 1913.

There have been a sequence of events that have led to the current, apparent, situation.  To understand why I said apparent, I suggest you read the rather lengthy "The 14th Article in Amendment to the Constitution."

You may find that an erroneous mythology has grown in the patriot community.  It is more of an acquiescence to administrative agencies than a subversion of the Constitution.  If you read the 14th Amendment Article, you may begin to understand us.

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