Same Things All Over Again

My wife, Anne, and I some years ago took up the habit of coffee together in the mornings with discussions of current events. Since, however, this current situation started, the news has been so dismal we switched to reading selections from my Aspen Institute Executive Seminar (attended in 1999) papers in the morning and have added drinks in the afternoon while reading “The Miracle at Philadelphia,” an historical recounting of the Constitutional Convention of 1787. We get into some vigorous discussions about ideas of liberty, freedom, equality, duty and so forth. We’ve been doing this for some time and here’s what I’ve learned: We are fighting the very same battles today that our forefathers fought in the statehouse in Philadelphia two-hundred and thirty-three years ago; issues that have perplexed philosophers, politicians and social scientists for millennia; Big versus small; direct representation versus indirect representation; equality; rule of law versus rule of the mob; rights versus privileges; and so forth.

Two-hundred and thirty-three years with a document unprecedented in history to crib from and we still can’t reach consensus. Why is that? The answer is simple but will be argued just like all the items above. Man is by nature a competitive animal striving for a secure existence which is expressed in terms of dominion over others whether physical, mental, or access to resources. When you are the dominant human you have a more secure situation than when you are dominated. We cleve together in family units, then tribes, then cities, then nations with each of these requiring a covenant of some sort but the larger the entity the more difficult and diverse the covenant becomes. The first covenant is, of course, might; I’m stronger than you so I take charge, but if I treat you too unfairly you might rise up and overthrow me and allow the next strongest to be in charge or you might have a group that rules. There are examples of these systems throughout history but the thought of giving the people the power to choose their ruler(s) was a unique system that was tried only at the city-state level before the United States proposed it become the governing principle of a nation of three million people across thirteen states much more distinct, one from another, than you might think. Nope, (I can hear you thinking) Parliament doesn’t count; the UK still had an operative King in charge in 1787, William Pitt the younger notwithstanding.

A more practical example of the dichotomies we face are the current protests concerning reopening the economy in face of governmental decrees for staying inside and off the streets. These decrees, of course, are a direct violation of the First Amendment governing Freedom of Assembly, and Freedom of Religion. These are freedoms guaranteed by the Federal Government but state and local governments are overstepping their authorities in issuing “Lockdown” decrees. The only way these decrees would be Constitutional is if the President, with the consent of Congress, declared a national emergency and suspended habeas corpus and issued a Federal lockdown decree equal across all state and local jurisdictions. But this would mean that the courts would have to shut down at the state and local levels because you cannot suspend habeas corpus if the courts remain operative (Ex Parte Milligan). This issue revolves around rights of the individual as expressed in the Constitution opposed to rights of society and the rights of state governments.

When this makes its way to the supreme court it will be an interesting case to observe for those members on the left may find themselves voting in support of the rights of states and those on the right in support of the individual which would be a reversal of the how the court has split in a majority of cases in the past fifty years. In my opinion the state governors have clearly overstepped their authorities and such proclamations are unconstitutional even if practical. This is the latest issue of whether we have a Federal government or a National government and how much authority state governments possess in regard to the Federal Constitution. It is a much broader issue than first is apparent.

I invite your comments.

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