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June 25, 2017


If you were George Washington, Samuel Adams, James Madison or Thomas Jefferson or other Founding Father during the formation of the United States of America as a nation state, you would have been witness to the choices made and discarded in choosing just what form of government we were to have.

Some wanted Washington to be king – an idea he quickly vetoed (perhaps another King George succeeding the British  King George did not have a good ring to it given our hatred of the latter as so eloquently set forth in the point by point denunciation of his wrongdoing in the Declaration). After all, in addition to being a French and Indian War leader of colonials on the side of the British Redcoats ending in 1763, Washington was a slave-holding businessman planter who was well known as the biggest whiskey-maker in the colonies which, incidentally, may help explain why he ruthlessly put down the Whisk2y Rebellion in Pennsylvania in 1792 during his first term as president.

Let’s take a short look at the immediate history of that turbulent time. We are familiar with the Battles of Bunker Hill, Concord and Lexington, which were fought on the eve of the Declaration of Independence and our Revolution fought to establish freedom from the harsh dictates of King George and how that all ended with the surrender of British General Cornwallis at Yorktown in 1781. We are also familiar with the Treaty of Paris two years later in which Britain recognized the independence of what we decided to call The United States of America.

This essay is not about such heroics; it is about what was going on in the back rooms in establishing an institutional framework for a new country. We happened to have embraced Athenian democracy (there were other choices) in which the governed (excluding women and slaves as it was in Athens) vote for those who are to govern them under a Constitution in 1789, but that is not where the story began.

I think the story began with the draft of the Articles of Confederation by the Continental Congress in 1777 and final adoption of such a governing document (or better said “plan for a united government after independence”) via Maryland’s vote in 1781 as the thirteenth ratifying colony, or state-in-waiting, and though the vote was unanimous as all thirteen former colonies (and now states-in-waiting) ratified it, it turned out to be a disaster wholly unsuited to the needs of a newly-formed United States of America, and though it is not fashionable to put down our Founding Fathers and though the Revolution was just getting underway and far from a done thing at the time, it could be argued that our still colonial-minded  politicians should have seen that the Articles with their emphasis on a confederacy of independent states rather than a federation of states under principles of federalism would not work. It was a states’ rights plan (run amok) document that was divisive rather than cooperative and deserving of its latter recognition but de-emphasis in the Tenth Amendment, a bone thrown to the still Articles-minded as one of the Bill of Rights in order to ensure ratification of the first Ten Amendments into our Constitution of 1789 two years later, in 1791.

To backtrack – Fortunately, and with some negative experience under the Articles after only four years following the Treaty of Paris, some saw fit in 1787 to call for a misnamed meeting to consider revisions to the Articles of Confederation since application of the terms of this ill-conceived governing document (or plan) was breeding antagonism between and even within the various states. Instead, thankfully, such a meeting turned into abandoning the Articles altogether and writing a new Constitution as the organic rule of law of the land, and even that Constitution was not perfect. Its terms were fiercely debated and its final composition did not become the organic law of the land as we know it now until two years later after the adoption of the Bill of Rights in 1791.

So finally, finally, we have a governing document that very carefully sets out a tri-partite form of government into legislative, executive and judicial powers as co-equals, among other definitional terms establishing the framework of government and the rights, privileges and immunities of citizens into a democratic republic, right? Not yet.

There is always (and to this day) the problem of interpreting the language of statutes claimed to be unconstitutional, for instance. I think the most important case in constitutional law we have ever had was Marbury v. Madison, in which then Chief Justice John Marshall decided that the Supreme Court had the power under the Constitution to void legislation if determined to be unconstitutional, a bedrock holding that anchored the “separation of powers” and “checks and balances” doctrines which protect us from executive and legislative and even judicial excesses and, if followed, make it difficult to grab power for real and wannabe dictators ranging from the British King George through Donald Trump.

It is the Constitution that protects us from tyranny, especially our Bill of Rights, thus providing us with the many blessings of democracy and, as I frequently write, our hard-won and precious democracy won by the blood of patriots from Bunker Hill to today is one of the last few things worth dying for whether the enemies of freedom are from within or without. July 4 is far more than hot dogs and a day at the beach; it’s a commemoration date for our freedom from tyranny and a celebration of our history of sacrifice of those who came before us in the preservation of our most asset held in common – our democracy – so as beneficiaries of that most precious gift from our predecessors, let’s remember that and those who came before us this upcoming holiday – and every day.     GERALD      E


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