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In his 1870 work "No Treason" - Lysander Spooner writes:

“But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

During the drafting of the constitution, did any of the contributors anticipate the fact that the document might not prevent voters and/or politicians from ignoring, reinterpreting, or transforming it drastically?

Spooner was writing from the perspective of anarchism, and his critique can be applied to any government that claims to be "limited" or "self-limiting". I've read a good portion of The Federalist Papers, but have not encountered this position there, or in anything else I've read. Any recommended reading is appreciated.

blud
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    No law, constitution or any other document can ever protect itself from being changed. If enough people want it to be changed, it will be changed, regardless of what it says. A mere document cannot impose tyranny. – David Richerby Jul 12 '19 at 13:58
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    You might also enjoy the anti-federalist papers, which are more likely than the federalist papers to have what you are looking for. You will find some fascinating predictions of where the constitution would fail. Some of those predictions came true, some did not. – Wayne Conrad Jul 12 '19 at 16:57
  • @DavidRicherby - agreed. I find it interesting that the attempt was made given this seemingly obvious fact. – blud Jul 14 '19 at 05:52
  • @JacobIRR The point is that as long as a substantial majority of the people and government are law-abiding, changing the constitution requires a large consensus. And if it's not true that a large majority of the people and government are law-abiding, all the bets are off anyway. – David Richerby Jul 14 '19 at 11:56

4 Answers4

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Benjamin Franklin seems to have anticipated Spooner's argument. When asked what he and his associates had created, Franklin replied,

A republic, madam, if you can keep it.

The point being that in the final analysis, a constitution (or any law) is just a piece of paper, entirely dependent on the government's willingness to obey its own laws, and the willingness of the people to do something if the government is not willing.

Quoted here, referring to Papers of Dr. James McHenry on the Federal Convention of 1787, The American Historical Review, Vol. 11, No. 3 (Apr., 1906), p 618.

sds
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EvilSnack
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    +1, and might also add John Adams: "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." – Meir Jul 11 '19 at 13:33
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    @Meir Questionable statement regarding regarding "religious people" as the only one fit to to govern, but hey, this goes to show that morality changes with time and no piece of paper can be expected to stand there forever without modifications. – Ant Jul 11 '19 at 17:14
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    @Ant Reread the statement. It's not about who's fit to govern, but about the people - the common citizenry. – Meir Jul 11 '19 at 17:31
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    @Meir Well, same thing though right? Today no one thinks that only religious people can be good citizens :) – Ant Jul 11 '19 at 17:36
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    @Ant I wouldn't say that no one thinks that. But the ones who do tend to be very religious... – Darrel Hoffman Jul 11 '19 at 18:17
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    @Ant Arguably, under current conditions the Constitution isn't working as well as was intended - i.e., that it's being (as the OP put it) ignored, reinterpreted, or transformed drastically. – Meir Jul 11 '19 at 18:41
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    @Meir Although in the present case, I think the problem is more with the immorality of those governing, not the governed. The populace who put them in power were mostly deluded, not immoral (somewhat like how Hitler rose to power), and gerrymandering is used to perpetuate control. – Barmar Jul 11 '19 at 19:11
  • @Barmar Could be. It still is probably the case, though, that a "moral and religious people" wouldn't put up with the current types of politicians (of both parties), and would long since have voted them out of office, or not voted them in to begin with. Also, given that the US has few formal qualifications for office (there's not even anything like the patrician-plebeian divide in the Roman Republic), the politicians are drawn from the people and, to some degree at least, reflect its qualities (even if, perhaps, in exaggerated form). – Meir Jul 11 '19 at 19:21
  • @Meir Without descending into a political debate, my point was that change must be an integral part of the democratic process, and that includes changing the constitution when needed to adjust for changes in culture, technology and society. Though of course, since it's a more "fundamental" body of law, the requirements for such changes should also be higher than for regular laws :) – Ant Jul 11 '19 at 19:23
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    Fortunately - the Founding Fathers included the First and Second Amendments in that constitution. – Pieter Geerkens Jul 11 '19 at 19:24
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    @Ant Some of those changes in culture and society (ignoring technology for the moment, as that's just a tool, albeit one which affects the other two) have been for the better, others much for the worse. It would be better - and something that those on both sides of the political divide can accomplish - if we were able to rediscover the virtues of the Revolutionary War generation that produced the Constitution, rather than taking the changes for the worse as inevitable and having to redesign the Constitution to accommodate them. – Meir Jul 11 '19 at 19:33
  • @Barmar There might be some of that, but there is also plenty of tyranny from the people. Many are bigots against something, and they tend to control that something. I've not met many who truly believe if freedom. Bob supports gays and foreigners but denounces guns and anti-vaxxers, Tim supports guns but denounces foreigners, Sue supports foreigners and anti-vaxxers but denounces gays. We can't call ourselves free until your freedom stops where mine starts, until gays, foreigners, gunners, anti-vaxxers, etc., etc., etc. are all free to live their lives how they want. – Aaron Jul 11 '19 at 19:34
  • @Meir The problem is that gerrymandering subverts the democratic process. So once a group is in power, they can subvert the will of the people to oust them (there's another recent question about how effectively this can be done). – Barmar Jul 11 '19 at 19:34
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    @Aaron That's the libertarian ideal, but it's no more feasible in practice than pure communism. – Barmar Jul 11 '19 at 19:37
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    @Barmar It was harder to oust the British from the colonies than it is to vote politicians out of office, yet it was done. It was likewise harder for the citizenries of various Eastern European nations to oust communist governments, yet it was done. Blaming bad government on gerrymandering - where, unlike in those examples, no one even needs to put their life on the line to vote a certain way - is little more than an excuse. – Meir Jul 11 '19 at 19:45
  • @Meir Good luck implementing a civilian rebelion against the modern US military. – Barmar Jul 11 '19 at 19:47
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    @Barmar Reread my comment, please. No rebellion against the modern US military is needed in order to vote gerrymandering politicians out of office. My point was that even when such rebellion was needed, it was done. – Meir Jul 11 '19 at 19:48
  • @Meir I don't blame it entirely on gerrymandering. Many honest people also believe in facets of the Republican agenda. You can't pick and choose -- if you like their stance on gun control, you may vote for them even if you don't agree with pro-life policies. – Barmar Jul 11 '19 at 19:49
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    @Barmar That is only your opinion and can be said of all governments we've tried, and anyone can use that statement against ideals they don't support. "The democratic ideal is no more feasible in practice than pure communism." See how that works when one key word is replaced? And I do believe that true democracy has proven to be little more than the tyranny of the majority. 75% of everyone agreeing on doing something does not make that something right. The primary benefit of democracy is that usually the tyranny is mild - usually. – Aaron Jul 11 '19 at 19:57
  • @Barmar True. I still maintain, as I said above, that Adams's "moral and religious people" wouldn't just accept that kind of accommodation as a necessary evil. Take for example the anti-slavery factions of the 1840s-50s: seeing that neither of the parties of that time represented their interests in that regard, they founded a new party which eventually gained power and put those interests into effect. The problem, then, is not so much gerrymandering (though it makes a convenient excuse), it's that both of the current major parties are old and creaking and exist for no reason than inertia. – Meir Jul 11 '19 at 19:58
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    You're trying to turn this into a simple "black and white" argument. People aren't either moral or immoral, there's a whole spectrum. – Barmar Jul 11 '19 at 19:58
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    Is there a reference for the Franklin's quote? – sds Jul 11 '19 at 20:45
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    @sds This site says that it was first published in this page of The American Historical Review, Vol. 11, 1906. – JoL Jul 11 '19 at 21:34
  • Comments are not for extended discussion; this conversation has been moved to chat. – yannis Jul 12 '19 at 08:35
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    @Ant I think "religous" has more than one meaning. This one might be "scrupulously and conscientiously faithful". I think you're taking Franklin out of context. – Astor Florida Jul 12 '19 at 12:00
  • Of course it may also be Spooner's point that if a constitution is no better than the people governed by it, why have one? (To which it can be said that a written document records what we've agreed to.) – EvilSnack Jul 13 '19 at 00:24
  • @Barmar Why do you say it’s unfeasible to let “gays, foreigners, gunners, anti-vaxxers, etc.” live their lives how they want? – user76284 Jul 13 '19 at 18:27
  • @user76284 I never said that. That list appears in a comment from Aaron. – Barmar Jul 13 '19 at 18:31
  • @Barmar You said “That's the libertarian ideal, but it's no more feasible in practice than pure communism.” in reply to said comment. – user76284 Jul 13 '19 at 18:35
  • You're right. I was responding to the general point "We can't call ourselves free until your freedom stops where mine starts". I wasn't addressing the specific list he gave. – Barmar Jul 13 '19 at 18:49
  • @user76284 But "anti-vaxxers" are a good example. Vaccination seem like a personal choice, but eradicating a disease depends on herd immunity. If you don't vaccinate your child, you're putting other children at risk. – Barmar Jul 13 '19 at 18:56
  • You need to understand what "religious" meant back then (rather than today) ;) Back then, "religious" people were people who knew that they were answerable to some kind of Higher Authority (beyond humankind.) In fact, several (most?) of the colonies had laws such that an atheist was not allowed to testify in court -- since such a person's word could not ultimately be trusted. In some cases, you couldn't be a citizen if you were an atheist.

    Bottom line: it was all about this: what's your source of truth, and the basis of conscience? If self, that wasn't considered good enough.

     – MrPete Oct 28 '22 at 00:33
  • @Barmar LOL :) -- OT except a great example of mass brainwashing. We now have proof the COVID vax itself puts many at risk, and doesn't stop transmission at all. (FACTS: download the CDC "Pink Book". Detail of ALL pathogens/vaccines.

    ALL until influenza (flu) were similar: they treated a non-mutagenic pathogen, and last a long time (min: smallpox @ 5 years; max: 20 yr to life). ALL gave hope of wiping out a disease.

    Flu and COVID vaccines? Highly mutational pathogens, <=60 day life; Effectiveness 23-~60% for flu, similar (?) COVID. NO hope of killing off the pathogen.

     – MrPete Oct 28 '22 at 00:47
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To answer this question, you have to understand the global political climate at the time the Constitution was created and ratified: Tyrants were the norm.

The Patriots had just fought a bloody war to free themselves from what they saw as the arbitrary Tyranny of the British government.

The British parliament at that time was subject to a King's veto (not just symbolic as it is now), and the House of Commons was subservient to the upper House of Lords (essentially an unelected Senate comprised of very wealthy noblemen).

From the Common Sense pamphlet written by Tomas Paine in 1776 (one of the most influential documents in promoting the Revolution):

How came the king by a power which the people are afraid to trust, and always obliged to check? Such a power could not be the gift of a wise people, neither can any power, which needs checking, be from God; yet the provision,which the constitution makes, supposes such a power to exist.

All of the countries in Europe were ruled by some form of Monarchy, which the Founding Fathers saw as tyranny.

With this context in mind, now look back to the Constitution. The main function of the Constitution was to create a government which would be the least susceptible to corruption and tyranny.

If any men in history were ever skeptical of the corruption of a government, it was the Founding Fathers. Of course they anticipated that there would be unjust and corrupt leaders, they would have fully expected it.

Of course they realized that men in the future would try to twist the meaning of the Constitution. They just hoped that future generations, and the system of checks and balances, would be strong enough to face those challenges

user23920
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They certainly DID anticipate this. They even built in a corrective, which is slowly being activated today, although it takes time.

What am I talking about? One phrase in Article V of the US Constitution, which I've highlighted:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states...

IMPORTANT: this is NOT about a "second constitutional convention." It is NOT about "rewriting the constitution." There are many scare-mongers out there. It is simply this: - A way to propose amendments to the Constitution that bypasses Congress. - ALL such amendments still would have to be voted on and passed by the states!

Pretty obvious in reality: Congress will never ever propose amendments that limit its own power.

Hamilton, in the final Federalist Paper (#85), discusses this:

By the fifth article of the plan, the Congress will be obliged 'on the application of the legislatures of two thirds of the States (which at present amount to nine), to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.' The words of this article are peremptory. The Congress 'shall call a convention.' Nothing in this particular is left to the discretion of that body.

George Mason is generally acknowledged as the one who was most concerned about legislative tyranny. I've not yet found an exact quote from him.

See conventionofstates.com for the current main effort.

MrPete
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  • I was considering posting a question, but I think you've answered it here. So would this be an example of a "scare-monger" site? States could not control CC. They claimed that the convention could do basically anything, but I couldn't see how - based on Article V, anything the convention did, would still have to pass 3/4 of the legislatures. Nor could the state convention remove that requirement on itself (at least in that convention). – John C Nov 16 '20 at 17:50
  • @John C, correct. – MrPete Oct 28 '22 at 00:34
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While I haven't read them (although I do have a copy) the Anti-Federalists papers would be those most likely to point out government "creep". And maybe even some of the pro-ratification side were aware, but thought it a necessary sacrifice because the Articles of Confederation failed horribly at uniting the states outside of war, and a new formula of government was all that could keep the states from going their own way.

(One delegate, I believe Elbridge Gerry from Connecticut - from whom we get "gerrymander" by the way - is reported to have said his state might have to seek "outside alliances" (which probably meant Britain) if the convention failed).

Most were also alive in 1793 to see the outcome of the Supreme Court case Chisolm v Georgia, which circumscribed the use of state sovereign immunity in federal courts. It doesn't seem likely to have been "part of the plan" for the federal government, because the 11th Amendment which nullified the decision, was sent to the states in the next session of Congress, and ratified by 1795.

zeroone
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