The following is an assigned essay which was completed for a grade. Unfortunately, some formatting has been lost in the transition to LJ.
Eric J. Herboso
American Political Thought
Tuesday, March 08, 2004
On the Failure of the Experiment
of the Constitution of the
United States of America
The construction of the Constitution of the United States of America, as an experiment, is ruined. Since the birth of the nation, the Constitution has been changed in ways that it was never intended to be changed by, though it was always a given that the means to change it should be there in some fashion. One cannot now look at the United States in order to say something about the formation of the Constitution originally, because in the intervening two hundred years, too much has changed in too many ways. Not only is the control for the experiment nonexistent, but also the parameters of the experiment have changed so drastically so many times that no data can any longer be inferred from the current state of the union with regards to the original formation of the document of the Constitution. One example of such drastic change would be the centralization of government seen in the Reconstruction amendments, “which profoundly shifted the balance of power between state governments and the federal government” (Amar, 2).
It is a shame that the experiment was not allowed to continue as was the intent of the framers. "The ability of states to diverge in manners not inconsistent with the national Constitution reflects the true wisdom of federalism: not only the freedom to set a different course, but the power to do so as well" (DuPont, 4). But that wisdom is now gone, for the powers all seem to be in the hands of the national government now.
Madison himself made quite clear that the intention of the framers was to make sure the powers delegated "to the federal government are few and defined... [and] the powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state" (Hutchins, Fed. 45).
Yet today's system has almost no memory of that intention. Ex-Governor DuPont writes: "the most outrageous act of the Supreme Court in recent history, clearly usurping the powers of the states, is represented by a school desegregation case from Kansas City, Missouri. In that case, the federal district court realigned the school district, finding that it was segregated, and ordered the school district to raise local taxes to pay for the expenses caused by the court's decrees. The Supreme Court upheld this action, finding that it was 'plainly a judicial act within the power of a federal court, (MO v. Jenkins, 1990)' despite the fact that it violated the Missouri Constitution" (DuPont, 3).
The experiment of the Constitution, then, is a failure. Not in the sense that the Constitution failed to work, but that the experiment itself failed to work. The only means for an examination of the experiment of the Constitution is to be more in depth with the arguments made for and against that Constitution at the time prior to its ratification, rather than with the details of events and facts dealing solely with an era too far removed from the time of the document's forming. Thankfully, these arguments can be seen most distinctly in the Federalist and Anti-Federalist Papers, and they are clearly the most important philosophical work to ever come out of the United States' founding.
On September 17, 1787, the Constitutional Convention at which the Constitution's final version was finally approved came to a close, and though the four month debate over forming "a more perfect union" (Hutchins, Con., Pre.) was over, the new debate over ratification had only just begun. (It should be noted that even at the very last minute of the Constitutional Convention, a change was made in Article I, Section 2, Clause 3: instead of the maximum number of representatives not being allowed to exceed one for every forty thousand persons, the maximum was lowered to one for every thirty thousand. This makes it clear that even at the close of the Convention, and even with the "unanimous consent of the States" (Hutchins, Con., Art. VII), there was still much consternation as to the agreement to the document. Benjamin Franklin said it best: "I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best" (Farrand, 643).)
This debate of the Federalists, newly started and rife with intent, would eventually succeed, and the Constitution would be ratified. But the experiment itself would fail, and so the big question seems to remain still unanswered: “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether hey are forever destined to depend for their political constitutions on accident and force” (Hutchins, Fed. 1). For while the Constitution was eventually ratified, and while the United States does still exist, it exists in a way that would seem to be based more on ‘accident and force’. The reconstruction amendments came about from the force of a country torn by civil war, trying to reclaim (too much) power over its individual states.
There remains little left of the untainted experiment today, despite the Constitution having survived over two centuries. For example, from the very beginning, the Commerce Clause (“To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes”: Hutchins, Con., Art. I, §8, Cl. 3): “served to prohibit the states from regulating any economic activity not completely local in character, while the national government regulated activities only truly interstate and commercial in scope” (DuPont, 2). But this all changed with the New Deal: “the Supreme Court began to allow Congress to regulate activities within states, as long as Congress could show that the activity had some effect, whether direct or indirect, on interstate commerce” (DupPont 2). Of course, it’s hard to think of some activity that doesn’t have at least some indirect effect upon commerce.
It would be truly interesting to see if a society could ever make up good government through ‘reflection and choice’ – but unfortunately, as long we continue looking toward the United States for the results to the experiment of the Constitution, we will only see the result of ‘accident’ (like a poorly worded Commerce Clause) and ‘force’ (like federal legislation mandating a minimum drinking age of twenty-one in each state, or else losing road construction funds).
Amar, Akhil Reed. “Anti-Federalists, The Federalist Papers, and the big argument for union”, Harvard Journal of Law & Public Policy.
Winter 1993: Vol 16, Issue 1, p111, 8p.
DuPont, Pete. “Federalism in the twenty-first century: Will states exist?”,
Harvard Journal of Law & Public Policy.
Winter 1993: Vol 16, Issue 1, p136, 12p.
Farrand, Max, ed. The Records Of The Federal Convention Of 1787, Vol. II.
James Madison, et al., au.
Yale University Press: New Haven, CT: 1908.
Hutchins, Robert, ed. Great Books Of The Western World, Vol 43:
“American State Papers, The Federalist, & J. S. Mill”. Hamilton, Madison, Jay, et al., au.
Encyclopedia Britannica: Chicago, IL: 1952.
Lawler, Peter & Robert Schaefer, ed. American Political Rhetoric, 4e.
Rowman & Littlefield: Lanham, MD: 2001.