REFLECTONS ON THE UNITED STATES CONSTITUTION AND AN EPIDEMIC OF CONSTITUTIONAL ILLITERACY

Bruce Fein
The Committee for the Republic
November 18, 2024
 
Something is rotten in the United States of America.
 
It is not President-elect Donald Trump.
 
It is not defeated Democrat candidate Kamala Harris
 
It is not the Republican Party.
 
It is not the Democratic Party.
 
It is not Congress.
 
It is not the multi-trillion-dollar military-industrial-security complex.
 
It is us.
 
We have idled amidst an epidemic of constitutional illiteracy.  We have shied denouncing and opposing at every turn the crumbling of separation of powers in favor of a presidency indistinguishable from dictatorship. Civic courage is as rare as unicorns. Among other things, we have acquiesced in extra-constitutional presidential power to initiate nuclear war, to order the assassination of any person the President secretly speculates might become a national security threat, and to spy on the “not-yet-guilty” without warrants taking George Orwell to a new level.
 
President Grover Cleveland’s first inaugural address underscored the duty of every citizen to master the United States Constitution and to hold elected officials accountable for infidelity.  He explained, “this is the price of our liberty and the inspiration of our faith in the Republic.”
 
We have refused to pay the price.  You reap what you sow.    
 
Poof of our constitutional illiteracy is the orthodoxy that the United States is a democracy—a belief as misplaced as the geocentric theory of the universe. The Constitution’s architects deplored democracy.  John Adams, first Vice President and second President, expressed the consensus: “Democracy never lasts long.  It soon wastes and exhausts and murders itself. There never was a democracy yet that did not commit suicide.” Thomas Jefferson, scorning democracy in his Notes of the State of Virginia, opined that 173 despots would be as oppressive as one.  James Madison’s notes on the constitutional convention are devoid of the word “democracy.”  Mr. Madison argued that even if every Athenian citizen were a Socrates, a collection of them all would still be a mob.
 
The Constitution itself is a repudiation of democracy.  It establishes legal norms that even unanimity cannot transgress. They depend on the outcome of no elections. Fourteen procedural features of the Constitution reject majority rule—a structural bill of rights to forestall tyranny.  We in this room are clueless, proof of our constitutional illiteracy.

1. A two-chamber legislature.
2. Two-year terms for House members and six-year terms for Senators.
3. Replacing only one-third of Senators every two years.
4. Equal state representation in the Senate but representation by population in the House.
5. Prohibiting an amendment to change equal state representation in the Senate.
6. Favoring slave states over free states in the House by treating disenfranchised slaves as three-fifths of a person.
7. The Electoral College which gives disproportionate weight to less populous states and disfavors more populous states.
8. Permitting presidential electors to disregard voters who elected them.
9. The qualified veto of the President subject to an override by two-thirds of the House and Senate.
10. Senate confirmation of principal officers appointed by the President.
11. Treaties requiring a two-thirds Senate majority for ratification.
12. Amendments requiring two-thirds majorities in the House and Senate and ratification by three-fourths of state legislatures.
13. The United States Supreme Court and the federal judiciary generally appointed subject to Senate confirmation not elected.
14. The Supreme Court empowered to void acts of Congress or the President as unconstitutional irrespective of their political popularity.

 
Constitutional illiteracy finds expression in the wildly popular Broadway Musical Hamilton.  It completely miscasts the protagonist.  The real Hamilton was a royalist, not a democrat. He cajoled George Washington three times to become a king without result.  He was evicted from the constitutional convention for advocating a lifetime presidency.  He was appointed a major general in the United States Army in anticipation of a war with France.  The Constitution was the brainchild of Madison not Hamilton.
 
Notwithstanding Tom Brokow, the Founders were the greatest generation by many orders of magnitude.  It was the only generation in history emancipated from species narcissism.  It was the only generation that understood the universal depravity of mankind that could only be kept from succumbing to tyranny, war, and venality by pitting institutional ambition against ambition, bad guys against bad guys via separation of powers blocking democracy. Otherwise, they knew, liberty, peace, and the rule of law would be destroyed for themselves and their posterity. Jefferson explained, “[I]n questions of power then, let no more be heard of confidence in man, but bind him from mischief by the chains of the Constitution.” The Founders knew they were not God’s new chosen people.
 
The Constitution began to crumble brick by brick when the founding generation passed, constitutional illiteracy began to metastasize, and presidential impeachable offenses proliferated with impunity.  
 
President James K. Polk resorted to annexing Texas in 1845 by statute in lieu of a constitutionally required treaty requiring a two-thirds Sente because that threshold was beyond political reach. That circumvention was Mr. Polk’s first impeachable offense in the eyes of the Constitution’s authors. Delegate George Mason at the constitutional convention declared that attempts to subvert the Constitution would be impeachable.  President Polk committed a second impeachable offense in 1846 by duping Congress into declaring war against Mexico by falsely accusing the Mexican army of killing an American soldier on American soil.
 
The Constitution’s authors would have impeached President William McKinley for misleading Congress about the explosion of the U.S.S. Maine in Havana harbor to justify the Spanish-American War and for suppressing the right of Filipinos to self-determination by force of arms. They would have impeached President Theordore Roosevelt for invading Panama to secure its independence from Colombia without a congressional declaration of war to build and operate the Panama Canal. They would have impeached President Woodrow Wilson for invading Mexico and Haiti without a congressional declaration of war, for lying about the sinking of the Lusitania and German submarine warfare to deceive Congress into declaring war against Germany in World War I, for deploying troops in Russia to oppose communism, protect U.S. economic interests, and to support White Russians against the Bolsheviks, and for locking up war opponents like presidential candidate Eugene Debs.
 
The Constitution’s framers would have impeached President Calvin Coolidge for dispatching soldiers to Nicaragua against Cesar Sandino without a congressional declaration of war. President Herbert Hoover would have been impeached by the framers for continuing that unconstitutional, presidential, undeclared war.  They would have impeached President Franklin D. Roosevelt for the illegal destroyers-for-bases deal with Great Britian, deploying troops to Iceland and Greenland in violation of federal statutes, seeking to pack the United States Supreme Court, illegal spying or prosecution of political opponents, for example, Andrew Mellon, lying over the USS Greer attack on Nazi submarines to provoke the nation to war, and racist concentration camps for loyal Japanese Americans justified including lying to the United States Supreme Court in Hirabayashi v. United States and Korematsu v. United States.
 
The founders would have impeached President Harry Truman over his war crimes at Hiroshima and Nagasaki, his unconstitutional war against North Korea-China, and for his Loyalty Board to suppress political dissent.  They would have impeached President Eisenhower over substituting executive agreements with Franco’s Spain in lieu of a defense treaty because a two-thirds vote in the Senate was a non-starter since Franco befriended Hitler during World War II. They would have also impeached Eisenhower for overthrowing Iran’s popularly elected Prime Minister Mohammed Mossadegh in 1953 and Guatemala’s Jacobo Arbenz in 1954,
 
President John F. Kennedy would have been impeached by the founders over attempted assassinations, the Bay of Pigs fiasco without a declaration of war, the secret war in Laos, and his green light for the overthrow and assassination of South Vietnamese President Ngo Dinh Diem.
 
President Lyndon Johnson would have been impeached by the founders for lying about the Gulf of Tonkin Resolution and commencing an extra-constitutional war against North Vietnam, invading the Dominican Republic without a congressional declaration of war, and private meetings in the White House with Justice Abe Fortas to discuss issues that might come before the Supreme Court.
 
In addition to his multiple Watergate crimes, the founders would have impeached President Richard Nixon for continuing an unconstitutional war in Vietnam and lying to Congress about expanding the war to Cambodia, and for using the CIA to orchestrate the overthrow of Chile’s President Salvador Allende.
 
President Jimmy Carter would have been impeached by the framers by declaring that he would unilaterally commence war if oil from the Persian Gulf were curtailed:  “Let our position be absolutely clear: An attempt by any outside force to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States of America, and such an assault will be repelled by any means necessary, including military force.”
 
President Ronald Reagan would have been impeached by the founders for his unconstitutional war against Grenada and for failing to superintend his subordinates in seeking to circumvent the Boland Amendment through the arms-for-hostages deal with Iran and diverting the proceeds to the Contras in Nicaragua.
 
President George H.W. Bush would have been impeached by the founders for unconstitutional wars in Panama and Kuwait.
 
President Bill Clinton would have been impeached by the founders not only over perjury and obstruction of justice in Monicagate but for unconstitutional wars in Bosnia-Herzegovina, Serbia, and Somalia.
 
President George W. Bush would have been impeached by the founders over unconstitutional wars in Afghanistan, Iraq, and Somalia, assassinations, torture, illegal surveillance, kidnapping, and indefinite detention without trial at Guantanamo Bay.
 
President Barak Obama would have been impeached by the framers for continuing President Bush’s unconstitutional wars, starting a new unconstitutional war in Libya, drone assassinations, invoking state secrets to conceal government murders, kidnapping, or torture, unconstitutional surveillance including criminal charges against Ed Snowden for revealing government crimes, and resorting to executive orders or memoranda to effectuate changes in the immigration laws to circumvent Congress.
 
President Donald Trump would have been impeached by the founders for continuing unconstitutional wars he inherited, defying hundreds of congressional subpoenas, diverting monies appropriated by Congress for different uses to build a wall with Mexico and pay unemployment compensation, bribery, insurrection, and wielding the pardon power to shield his political friends.
 
President Joe Biden would have been impeached by the founders for continuing unconstitutional wars he inherited, becoming a co-belligerent with Ukraine against Russia without a declaration of war, becoming a combatant, co-combatant, or co-belligerent with Israel against Gaza, the West Bank, Lebanon, Yemen, Syria, and Iraq without congressional declarations of war, flouting six statutes requiring termination of military assistance to Israel for engaging in egregious violations of human rights or blocking the delivery of U.S. humanitarian aid, and continuing dragnet surveillance of Americans without warrants or probable cause to believe crime is afoot.
 
None of this narrative is secret.  Everything is in the public domain.  Citizens are dutybound to know it like the back of their hands, the alphabet, and the Pledge of Allegiance.
 
Let’s stop scapegoating.  We citizens are the greatest threat to the United States. We live with the delusion that we can indulge constitutional illiteracy without paying the price of a lawless government irrespective of its partisan coloration.  Abaham Lincoln spotted this threat almost two centuries ago in his Lyceum address: “At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.”
 
We are Lincoln’s worst nightmare come true.  What will be said of us because of our self-inflicted constitutional illiteracy is what Edward Gibbon said of Athenians upon their loss of freedom:
 
“In the end, more than freedom, they wanted security. They wanted a comfortable life, and they lost it all – security, comfort, and freedom. When the Athenians finally wanted not to give to society but for society to give to them, when the freedom they wished for most was freedom from responsibility, then Athens ceased to be free and was never free again.”