Ben Shapiro’s Introduction to the Constitution

If you are like me, it has been many decades since your last government/civics class. Therefore, as a public service, let me offer constitutional attorney and talk show host Ben Shapiro’s Introduction to the Constitution:


By Ben Shapiro

It is the single greatest founding governmental document in the history of the world.

The Constitution of the United States, ratified in 1789, has now provided the framework for the most powerful, successful, and free nation on the planet for the past 230 years. Americans haven’t always lived up to the promises of the Constitution; America’s history has been a constant battle to fulfill those promises. But the principles undergirding our Constitution are eternal, and eternally true, and the system of government borne of those principles is incomparably durable.

The Origins Of The Constitution

The story of the Constitution actually begins not in 1787, with the Constitutional Convention, but in 1776, with the Declaration of Independence. The Declaration of Independence spells out the fundamental purpose of government: to preserve the God-given rights to life, liberty, and the pursuit of happiness that inhere in any human being, regardless of race, religion, sex, or other immutable feature. Any government that fails to fulfill this purpose, that invades those rights rather than preserving them, violates its fundamental rationale, and is fit for removal – that the people have a right to “alter or abolish it.”

In 1783, with the signing of the Treaty of Paris, the new citizens of the United States of America finally achieved the end of British tyranny. Now they would have to form a government designed to guarantee the rights promised by the Declaration of Independence.

Easier said than done.

The first attempt at forming a new national government ran aground on the shoals of competing state interests. The British colonies had been united by a distaste for British governance, by British invasions of rights. But the states had disparate regional and economic interests. In forming the Articles of Confederation, ratified in March 1781, the states sought to limit the power of the national government and retain control of their own domains. This led, in practice, to vast impracticalities. The new government, as its organizing document would suggest, acted more as a confederation than a nation: the states entered into a “firm league of friendship with each other,” and the new federal government could declare war and negotiate treaties.

The new federal government, however, had no power to compel states to actually do anything. No enforcement mechanism had been created to collect taxes or pay off war debts, which undermined the creditworthiness of the United States; the federal government had no way of guaranteeing that treaties would actually be effectuated inside the states, or ensuring that its trade policies would be followed at the state level; the federal government had no ability to mandate a common currency between the states. Each state had one vote in the national legislature, and the Articles of Confederation contained no provision for a judicial or executive branch. Every amendment to the Articles required unanimous consent of the states.

Warning signs quickly began to mount that the Articles would prove unworkable if the new nation was to hold together. That unworkability came to a head in 1786 and 1787, when the government of Massachusetts began levying taxes on individuals in order to ensure the creditworthiness of the state, and in order to collect revenues on behalf of the federal government. Many of those individuals were farmers, some of whom had served without pay during the Revolutionary War. In what came to be known as the Shays Rebellion, thousands of citizens, under the leadership of war veteran Daniel Shays, among others, began occupying courts and refusing to pay their taxes. The federal government could do nothing about the rebellion; it simply didn’t have the resources or power. All of this came to a head in January 1787, when troops largely hired privately by the Massachusetts governor put down an attempt by the rebels to take over the federal arsenal at Springfield. Four of Shays’ men were killed, and dozens more were wounded.

By this point, it had become obvious to national leaders that the Articles of Confederation were a failure. In September 1786, twelve delegates from five states gathered in Annapolis, Maryland, to discuss possible changes to the Articles of Confederation. The turnout was dismal, but included future framers of the Constitution James Madison and Alexander Hamilton. The delegates accomplished little, but agreed on a resolution requesting universal attendance at a convention in May 1787, designed to make changes to the Articles of Confederation sufficient “to render the constitution of the Federal Government adequate to the exigencies of the Union.”

And so it was, in May 1787, in sweaty Philadelphia, with the windows of Independence Hall nailed shut to prevent informational leaks, the most historic gathering in American history commenced. America’s greatest man, George Washington, was elected to preside over the assemblage. Delegates gradually gathered in Philadelphia over the course of months. On September 17, 1787, the final version of the Constitution – the Constitution contained herein – was presented for signing.

Only 39 of the 55 delegates present signed the Constitution. The ratification process would be long and difficult – and would produce America’s masterwork in political writing, The Federalist Papers, by Hamilton and Madison. Finally, in 1789, the Constitution would be fully ratified by the states. Two years later, so would the Bill of Rights.

Principles Of The Constitution

So, what were the central principles undergirding the Constitution? There were four main notions embodied in the nation’s founding document: first, the belief in negative rights; second, the belief in delegated powers; third, the concept of checks and balances; finally, the concept of federalism.

The founders, in line with the Constitution, believed that the government’s job was to protect rights to life, liberty, and property. Taking their cues from British philosopher John Locke, the founders agreed that natural rights – rights pre-existing government, inviolable and indefeasible – were the rights for which government had been instituted. As Locke put it in his Second Treatise on Government, “because we are all equal and independent, no-one ought to harm anyone else in his life, health, liberty, or possessions.” Rights were not entitlements – not free services provided by government, or government ability to coerce private actors into violating their consciences. Rights were negative (i.e., rights guaranteed against violation by others) rather than positive (i.e. rights to material goods or services requiring a burden on others).

The founders also believed that a Judeo-Christian social fabric would be necessary to support the bulwark of freedom: a free people would also have to be a dutiful one. As John Adams stated, “We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

That balance – the balance between rights and duties – led the founders to the belief in a system of delegated powers. After all, no government could be trusted with unfettered power, least of all a government set to rule over thirteen sovereign states. Powers had to be carefully circumscribed, lest the government devolve into tyranny. As James Madison himself put it in Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined.” The Constitution was meant to strengthen the federal government from the weakness of the Articles of Confederation, but not to grant a heavy hand to that same government. As the Ninth Amendment would eventually express, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, the Constitution was meant to place specific limits on government power, not to grant government a broad license to enforce vaguely-defined “rights.”

In order to ensure that the government would stick to its mandate, and limit itself to the powers delegated under the Constitution, the founders sought to set up a system of checks and balances between the branches. In perhaps the most famous statement from The Federalist Papers, Madison explained the rationale behind the gridlock worked into the Constitution in Federalist No. 51:

It may be a reflection on human nature, that such devices [checks and balances] should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Today, Americans bridle at the system of checks and balances, frustrated by the seemingly slow movement of government. But that messy, painful, gridlocked process was the point of the Constitution: by forcing “ambition…to counteract ambition,” as Madison put it, the government would never be able to run roughshod over the rights of citizens. Madison, as the rest of the founders did, feared the “tyranny of the majority.” By forcing broad acceptance of any measures before their implementation, majoritarian tyranny could be thwarted while also allowing for determined action.

Finally, the founders were determined to work within the framework of federalism. They had little choice, given that all power lay at the state level. But at the theoretical level, the founders favored federalism, too: they understood that while Americans had commonality of interest nationally, localism provided a surer, more immediate method of governance in most cases. The founders agreed with Montesquieu that “the government most in conformity with nature is that government whose particular disposition best relates to the disposition of the people for whom it is established.” Localism would provide the best foundation for governance, and thus most lawmaking should be made close to home.

The Constitutional structure is a reflection of the importance of these four ideas: rights, delegated powers, checks and balances, and federalism. It posits a federal government with powers heavily circumscribed, and subject to the heavy influence of states, who may appoint their Senators; a legislature, the most powerful branch, separated into two houses – a lower chamber and an upper chamber, one represented by population, one by state; an executive branch capable of checking the legislature through veto power and responding to armed insurrection or invasion, but incapable of operating broadly without the consent of the legislature, and vulnerable to impeachment and removal at the legislature’s hands; a judiciary to adjudicate conflicts rising to the federal level, but checked by both the legislature through funding and jurisdictional restrictions, and the executive through appointment power. The Constitution also posits an amendment system, to take account of future change.

This ingenious structure was nobody’s original idea: it resulted from negotiation between delegates from the various states. But that negotiated agreement has become the basis for American government, and for the protection of our freedoms.

The Bill Of Rights

The structural Constitution, the founders believed, was far more important than the now-ballyhooed Bill of Rights. Many of the founders actually believed that the Bill of Rights would be a mistake, conveying the message that any rights not enumerated could be invaded by government. Alexander Hamilton pointed out that prior charters of rights – for example, the Magna Carta – represented an abridgement of royal power, but that the Constitution had been designed to delegate power to government, not to abridge power already held by government. Hamilton stated in Federalist No. 84, “why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

Hamilton lost the argument, obviously. And as it turns out, the Bill of Rights has operated precisely as he thought it would: as a list of things the government may not do, and as an assumption that any right not listed can be abridged by the federal government, rather than as an expression of the generalized limited power inherent in the structural Constitution.

Slavery In The Constitution

The Constitution, as originally constructed, did bear the scars of its time in history. It did not forbid slavery, obviously, leaving to fester the gravest evil ever to plague the United States, an evil that would result in both the bloodiest war in American history and a century of racist oppression afterwards. But the Constitution didnot enshrine slavery – as a negotiated document, it attempted to move slavery on a path toward abolition. Article I, Section 9, for example, explicitly stated that Congress could in fact bar the “migration or importation” of people into the United States beyond 1808; the Constitutional three-fifths rule, which set Congressional apportionment at the population of districts, discounted slave populations in order to reduce the representational power of slaveholding states – power such states could have used, and did use, in order to spread slavery more broadly and entrench it more deeply. As escaped slave Frederick Douglass would later observe, “Take the Constitution according to its plain reading. I defy the presentation of a single pro-slavery clause in it…Interpreted as it ought to be interpreted, the Constitution is a glorious liberty document.” Abraham Lincoln agreed with Douglass’ interpretation, stating that slavery “is hid away, in the constitution, just as an afflicted man hides away a wen or a cancer, which he dares not cut out, lest he bleed to death.”

The Constitution’s promises have been gradually and correctly broadened in their applicability over the course of time, through blood and toil. That is the glory of its original sentiments, and the promise of its original and eternal principles.

What Next For The Constitution?

The Constitution has become America’s secular national Bible. We all return to its language; we all cite its guarantees. But to understand its greatness, we must be familiar with its vision of government, human nature, and natural rights. What were the founders seeking to protect – and what were they seeking to protect against? Why did they favor gridlock over centralization of power?

The Constitution is, indeed, a living document. But it lives not through the cynical and dishonest reinterpretation of its doctrines to meet particular political ends today. It lives because it is alive in our very system: our understanding of our own rights, the confined delegation of powers to government, the checks and balances of the system, the federalist tension. And it lives most of all, because its view of humanity was and is true: we are not angels, and we are not devils. We are human beings, with the equality of rights inherent in that status – and with all the flaws and petty ambitions of human beings. Our system sees human beings for what they are, and seeks to thwart our evil and bolster our good.

That is the legacy of the Constitution, and the legacy of America. Neither the Constitution nor America were or are perfect. But they are the best any human society has yet accomplished. And here’s the best part: we’re part of that chain of history. It is our job to help preserve and strengthen that “more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”

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