Democracy in America, Part I: The Constitution Fetish

And the Founding Fathers said: “Let there be a constitution;” and there it was. Then the Fathers looked at the articles and saw that it was good. And there was evening, there was morning, and the Fathers called it a day.

Image courtesy of US Capitol © 1819, public domain

Image courtesy of US Capitol © 1819, public domain

One of the perks of being a foreign correspondent is having the opportunity to explore different cultures. As a lover of everything constitutional, here I was, on September 17th, celebrating my first Constitution day in America. With a copy of the Constitution in my pocket, I attended several lectures and talks that had the Founding Fathers, the Constitution, and free pizza in common. As I was leaving my last lecture that day, I was sure that this country has two major religious texts: The Bible and the Constitution. As with the Bible, people seem to put a lot of faith in the Constitution, cite it when it supports their claim, and have someone else interpret it for them. The Founding Fathers, who wrote the Constitution, are often praised as divine, omniscient beings.

When running out of policy arguments, American conservatives sometimes like to use what I call the Founding Fathers argument: “This is not how the Founding Fathers would have wanted it.” Arguments like this inflame the public discourse and prevent us from debating real, present issues by instead focusing on what George Washington might have wanted done two centuries ago. However, another Founding Father, Thomas Jefferson, believed that “every constitution, … and every law, naturally expires at the end of nineteen years … so that it may be handed on with periodical repairs from generation to generation to the end of time, if anything human can so long endure.” (1) Jefferson’s opinion that these laws should not outlive a generation seems to fly in the face of the current political discourse over the unassailable and sanctified Constitution. It seems that so much of US politics is fixated on a 227-year-old piece of paper that some might almost see it as a sin against the Founders to change the Constitution even slightly from the state it has been passed on us.

However, two centuries is a long time. Since 1800, humanity has managed to wage two world wars, invent automatic weapons and the guided missile system, land on the moon, use weapons powerful enough to destroy whole nations with a single strike, and add sixteen Amendments to the Constitution. And despite the incredible developments achieved in the arms industry over the last two centuries, the Constitution still has gun rules dating back to the Founding Fathers, when the state-of-the-art weapon was a single-shot flintlock musket that had a reload time of over 20 seconds.

The case of controlling firearms has dominated the public discourse for some time. Whether it be because of gun violence statistics, or a massive public shooting such as those that occurred in the Washington, D.C. Navy Yard just a few weeks ago or Sandy Hook Elementary school in Connecticut in December 2012, the debate on gun control and gun violence has become a matter of contention in US politics.

I am not, however, going to provide disturbing statistics about firearm homicides in the US; nor I am going to argue for or against gun regulation. Instead, I want to focus on the centerpiece of the whole debate, and probably the most hotly debated passage of the Constitution – the 2nd Amendment. In full, the controversial passage reads: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Most arguing against gun control focused solely on the ‘bear arms’ section, and completely overlook the key word ‘militia’. Moreover, they often make the mistake of treating the ‘right to bear arms’ as the kind of self-evident, unalienable right mentioned in the Declaration of Independence. In such cases, they appeal to the Founding Fathers, representing the ‘creator’, who has endowed us with this unalienable right.

Fortunately, the Founding Fathers never intended an armed citizenry to keep checks on the government; instead, the sole purpose was to protect the government from both domestic and foreign threats. An alternative option would have been a standing army. But the Founding Fathers believed that “standing armies in a time of peace are dangerous to liberty,”(2) and could be “an engine of oppression.”(3) The militia they had in mind was like the National Guard – regulated, locally controlled, and answerable to national authorities. Had the authors of the Constitution supported a standing army during times of peace, there would be no need for a regulated militia, and, therefore, probably no need for the 2nd Amendment.

The pro-gun movement also argues “the 2nd Amendment isn’t there just for duck hunting. It’s there to protect us from tyrannical government.”(4) If this is the purpose of the 2nd Amendment, then these guys are awfully outgunned. Eleven Confederate states combined did not succeed in defiance of the federal government, and a few semi-automatic weapons would probably not make much difference. Yet, the argument that militia was meant to protect the people from a tyrannical government is simply wrong. In 1794, those who took part in the Whiskey Rebellion took up guns against a “tyrannical” administration of George Washington. Washington himself called up 13 000 militia-men (5) to crush the rebellion. In the first gun debate, the representatives of New Hampshire proposed an amendment giving the government permission to confiscate guns when citizens are in actual rebellion (6). For them, the right to bear arms ceased to exist when arms are used against the government. Yet, two centuries later, people like Alex Jones use the Founding Fathers to claim that the 2nd Amendment is here to protect them against the government and are threatening a rebellion in case the government bans the sale of assault rifles.

The Constitution is an impressive document that keeps inspiring many even after two centuries. However, Americans need to get over their divination of the Founding Fathers and the Constitution, and treat the Constitution as any other law that needs to be adjusted to the requirements of the present society. Until doing so, the defenders of the sanctity of the Constitution will prevent any constructive and meaningful public discourse on the gun ownership issue, despite a broad public agreement that this is a problem that needs be solved.

(1) Thomas Jefferson to James Madison, 1789. ME 7:459, Papers 15:396, Thomas Jefferson to Samuel Kercheval, 1816. ME 15:42