Tags: Barack Obama | Donald Trump | confederation | declaration | electoral | federal | franklin

Resistance to Trump Belittles, Threatens Constitutional Order

Resistance to Trump Belittles, Threatens Constitutional Order

The Benjamin Franklin Memorial, Franklin Institute, in Philadelphia, Pennsylvania. When asked, departing Independence Hall, at the close of the Constitutional Convention of 1787, whether the result was a monarchy or a republic, Franklin replied, "a republic, if you can keep it." (Americanspirit/Dreamstime) 

Wednesday, 22 August 2018 12:08 PM Current | Bio | Archive

Many Americans apparently believe the current incumbent of the White House, Donald Trump, is illegitimate. That's because more people voted for his opponent, Hillary Clinton, than voted for him. This ignores the fact that our Constitution is structured so that the Electoral College (a group chosen, in part, to reflect geographical subdivisions — our states — rather than a majority of voters) picks the president.

Opponents of President Trump concurrently appear to cling to the notion that Russians interfered with our election to help Mr. Trump and hurt Mrs. Clinton. As it becomes clearer that the Russian interference was a myth concocted by Clinton partisans in the Obama administration, that notion will fade from national view.

The objection that Mr. Trump did not win the popular vote, however, and the concomitant disdain for the Electoral College is not likely soon to disappear. Indeed, that disdain reflects an enduring deeper rift in our polity. It's rarely discussed, yet it's important to understand that from the 18th century on, we have been living in a country whose basic principles are at odds, and whose continued existence as a nation requires a mature commitment to living within this situation of antinomy.

This essential American paradox stems from the fact that our two basic political documents  — the Declaration of Independence (1776) and the United States Constitution (1787) — express fundamentally different philosophies and embody two different traditions to which we are now, simultaneously and precariously, committed.

The Declaration, which justified our break with Great Britain, stresses the importance of equality, and God-given individual rights, specifically life, liberty, and the pursuit of happiness. These rights, were, the Declaration stated, not being allowed by King George III, and, that document explained that when the individual rights of a people (the Americans) are not being protected by their government (the Crown), it is the right of the people to set up a new government — which we proceeded to do.

The Declaration was a democratic and egalitarian document. The new American government consisted of 13 independent sovereignties, loosely tied together in a Confederation.

That Confederation depended on the 13 states for funding, and it had almost non-existent powers of enforcement.The 13 state legislatures, moreover, proceeded often to behave in ways antithetical to the continued commercial progress of the nation, issuing inflationary paper currency as legal tender, and suspending debts their citizens owed to creditors.

This was a lamentable effort on the part of some of the demagogues involved in these early state governments to implement an egalitarian redistribution of wealth to further their continued political domination. The inevitable climax of this story was the ratification of the federal Constitution in 1789.

This extraordinary charter did many things, but the most important was to enforce limits on the power of the state legislatures, to give the power of regulating a national currency only to the new national government, and to prevent further erosion of existing contracts.

There were defects in the federal Constitution, most notably its deference to slaveholders, but the Constitution’s basic protection of property rights was clearly called for. The means of achieving this, besides the specific measures already noted, was a general scheme designed to prevent the accumulation of arbitrary power anywhere in the new nation.

Thus, the measures we now refer to as the separation of powers and checks and balances.

The U.S. Constitution, then, was a check on even democratic power, and, as Benjamin Franklin famously remarked, it gave Americans, "A republic, if you can keep it." Thus, the federal government was not a pure democracy, but was rather a republic — a government committed to the rule of law and the preservation of private property.

Its continuance depended on the American citizenry having the virtue to maintain a system which created restraints on the people and their representatives.

Our two major political parties reflect the differing natures of the Declaration and the Constitution.

Democrats have tended to emphasize equality and redistribution. Republicans have emphasized the protection of property rights, stability, and restraints on government. The genius of the American system is that these two tendencies, in general, have been held in equilibrium.

When we veer too far in one direction, we have usually been fortunate that a correction has been forthcoming. One might best understand the victory of Donald Trump as a correction of the excessively redistributionist behavior and the concentration of power in the executive branch of the Obama years.

Alarmingly, however, the "Resistance" to Trump belittles and threatens our constitutional order, and the rise of democratic socialists committed to redistribution, if not the abolition of capitalism (private property), may represent the greatest threat to continued American prosperity since the Great Depression.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.

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Resistance to Trump belittles and threatens our constitutional order, and the rise of democratic socialists committed to redistribution, if not the abolition of capitalism (private property) may represent the greatest threat to continued American prosperity since the Great Depression.
confederation, declaration, electoral, federal, franklin
Wednesday, 22 August 2018 12:08 PM
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