Recently, we overheard some pointed remarks, disputing the popular attribution of idealistic motivation for justice and equality, granted to our legendary, “radical” Founders. The ardent speaker, presumably, a mainstream American, supporter of humanism and the plain morality of civil rights, was harshly critical of the stated principles of democracy and equality, espoused by such men, some of whom owned slaves and whose vital grant of protected, Constitutional rights, were applicable solely to white, male landowners. This was not the first time we had experienced this specific, critique, and we would take this opportunity, to seek the critic’s understanding and, perhaps, his amended perception.
In anticipation of the expression of the intended theme of this essay, we would initially, state, that while we are in full agreement with the apparent, foundational sentiments of the overheard speaker, we cannot endorse his unsophisticated and anachronistic understanding of American Constitutional history.
Comprehending the context of their era, it is undeniable that the Founders were idealistic, indeed, radical reformers. Cognizant of the injustices traditionally, roiling Europe, they were keen to create a new political and social Republic, free of an absolutist Sovereign, or an autocratic Church, and, notably, free of the unjust institution of “Privileged Birth.” It is the latter conceit that motivated their discernable emphasis on “Equality.” The concept of equality of birth status, at their time in history, was radical, and its Constitutional implementation was a humanitarian advance of incalculable measure, as known to any reader of European history or classic literature.
The creation of a Nation, for and by the “People,” was veritable, “Science Fiction,” in an age (and long past history) when a Sovereign or the Pope was the autocratic head of State, and when Royal designates were the temporal overlords, often prescribing a life of misery and privation for the commoner. The Founders also, empathically, provided for the prohibition of “cruel and unusual” punishment.
The novel and thoughtful, designation of a tri-partite form of government, Executive, Legislative and Judicial, in conjunction with the innovative concepts of, “Separation of Powers,” and “Checks and Balances,” purposed to prevent the unwise, concentration of governmental power, was a new and radical innovation of the Founders and an enduring assurance against despotic rule.
In the years following the adoption of the U.S. Constitution, several Amendments, by necessity, were added, granting rights, in addition to the first ten, (“Bill of Rights”) included at the time of the adoption. In fact, subsequent to the date of the Constitution’s adoption, it appears that a full thirty-three Amendments were necessarily, adopted, inclusive of, the “Thirteenth,” prohibiting slavery, the “Fourteenth,” incorporating and declaring all of the rights, granted by the federal government to American citizens, were applicable to the State, the “Fifteenth,” regarding protection of the right to vote, regardless of race or previous condition of servitude, the “Nineteenth,” Women’s right to vote and the “Twenty-Sixth,” lowering the voting age to eighteen. Notably, the original draft of the Constitution has been in the temporal stage of Amendment, since its initial adoption as was deemed needed.
It is commonly known, that there are individuals who, atavistic manner, seem, eternally, to persist in the tired and misleading trope, that the determination of controversial issues should, properly, be based on (their perception of the) “original intent,” of the Founders. However, history has emphatically, demonstrated that our Nation is ever-changing, which at various times, has societally and legally, mandated (the onerous, process of) Constitutional Amendment.
Perhaps of utmost importance to the granting of plain justice, is the consideration of timely, relevance. The “Sociological Interpretation” of the United States Constitution, was famously, espoused by, and eloquently expressed in the written judicial opinions of Hon. Benjamin Cardozo, Justice of the United States Supreme Court (in our view, the greatest and most brilliant Jurist to serve on America’s highest Court.) This just, relevant and pragmatic approach, recommended the application of the provisions of the U.S. Constitution in the manner in which “the Founders would have intended,” but under the prevailing conditions, applicable at the time of the litigation. Those proponents of archaic wisdom, or tactical proponents of injustice who persist in their tired and misleading arguments, based upon the bugbear, of “original intent” in order to amend their perception of reality, need to listen to Bob Dylan, who famously, sang, “The times, they are “a’ changin.”
It would be eminently, fair, and deservedly, respectful to the memory of our thoughtful, “Founders,” if their brilliant character and high moral compass, were (fairly) evaluated in terms of theircontextual times, rather than with a thoughtless, anachronistic, (modern-day) projection.
-p.
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