September 17 is Constitution Day. The Constitution is 231 years old.
The Framers of the Constitution effectively protected us from having our rights taken away. But they never thought that we would give them away.
As countries go, the United States is one of the relative youngsters, nevertheless, our constitution is the longest lasting constitution in human history. So, Happy Birthday to the most important document in the life of every American citizen, a document which represents and embodies the freedoms that we have been enjoying for the last 240 years.
Today, in our deeply divided country, we have both the left and the right announcing that our constitutional rights are in jeopardy. But with much different solutions.
When the Founders wrote the constitution, they were very gun shy about tyranny. They fought against it for eight years. The last thing that they wanted was another king, so they carefully designed this document that many now refer to as “the law of the land” to make sure that was avoided.
Three equal branches of government and checks and balances all but assured that. Many of the delegation wanted to add what we call now the Bill of Rights. Some of the Federalists were opposed to incorporating a Bill of Rights into the U.S. Constitution — not because they wanted to limit state’s and individual’s rights, but to the contrary, because they thought that by enumerating them it may be interpreted as limiting those rights to those which were thus enumerated.
So, they added the Ninth and 10th amendments, which made it clear that the state’s and the Individual’s rights were not limited by that which was enumerated therein, but the government’s powers were strictly and absolutely limited to those enumerated therein.
I am sometimes amazed by the intellect of these guys.
| Ninth Amendment | Tenth Amendment |
| The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. | The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. |
They, the Federalists and the Anti-Federalists, wanted to make absolutely certain that the federal government was limited and that its powers were limited to those which are specifically enumerated in the constitution, which are quite limited indeed.
How have we moved from these very clear and quite limited roles of the government? We see presidents “passing laws” in a ad hoc fashion or refusing to enforce laws duly passed by Congress although they swore an oath to do so. Executive orders have always been commonplace and have started to expand beyond the presidents designated powers within which the EO must be framed.
Republicans went justifiably crazy when President Barack Obama began issuing laws from the oval office while refusing to enforce law, but the Democrats hailed these actions. Now, the Democrats pronounce a constitutional crisis with every Trump EO while most of the Republicans let it slide. Both sides change laws when it is convenient or favorable to their party, only to experience the backlash when the balance of power changes, as evidenced via the “Biden Doctrine” preventing filibustering of justices, or the so-called “nuclear option” invoked by Harry Reid.
The Supreme Court has ruled on healthcare, education, abortion, and marriage although these powers are not enumerated the Constitution and thus reserved for the states.
Why aren’t we throwing tea into the Potomac? We should be.
Make no mistake, the Constitution is under attack and it is not by the Russians. It is from our legislators who have more loyalty to their party than to their constituents or the Constitution they swore to uphold. But mostly, it is from apathetic citizenry. Hillary Clinton was caught on a hot mic moment wishing for “docile and compliant” citizens. The danger is that she gets her wish.
For example, this past year we, in the state of Connecticut, lost one of our constitutional rights, or rather we passively sat upon our hands (with thumbs upright) while our legislature took a constitutionally guaranteed right away from us.
This past year, our state joined the National Popular Vote Interstate Compact (“NPVIC”) which provided a work-around to the annoying Article 2, Section 1 of the 12th Amendment called the Electoral College. Our legislators, many upset that the 2016 election did not go their way, only because California overwhelmingly voted for their candidate, wanted a way to ensure that that would not happen again.
I mention California because in the absence of California, Trump would have received most votes and would have dominated the electoral college by a nearly 2:1 margin. The NPVIC, as one may have guessed, started in, evolved, and is maintained and run out of California.
Consider this, if every voter in the state of Connecticut who voted for Hillary switched and voted for Trump. The power of just those California HRC voters would overpower our little state 27 times. We wouldn’t stand a chance.
My point in bringing this up in a discussion of the U.S. Constitution is not to reargue the issue but to point out that the electoral college was not established by the framers in anticipation of helping one particular candidate 231 years into the future. It was done to protect the small states from being bullied by the large states, and it does, as this election clearly demonstrated. Our biggest state wanted one candidate and the 60 percent of the states and the majority of the voters wanted another.
The states have differing resources, different industries, different strengths, and, yes, different values. That is what makes the USA unique, and that is what the framers had in mind. We are 50 “united” states with each retaining some autonomy and identity. No other country is like that. It was and is a good idea.
But, apart from whether you think that the NPV is a good idea, there is some certain indisputable logic.
First, the electoral college benefits the citizens of the small states (that’s what it was meant to do). Second, Connecticut is a small state, (and, a very wealthy small state). Therefore, the electoral college benefits the citizens of Connecticut.
So, why would our legislators, who we elected to act in our best interests, take an action that is clearly contrary to our best interests — especially since these interests are clearly guaranteed in the U.S. Constitution? And especially since there is a specifically defined procedure for removing a constitutionally guaranteed right for which they concocted a “work-around?”
And, why would they do so without asking us?
And why did we let them?
Happy Constitution Day.
Nicholas Malino is a founding member of the Progressive Conservative Alliance and chairman of the Conservative Party of Connecticut. He is Managing Member of Tango Research, LLC a hedge fund in Connecticut and New York. He has two books published on financial subjects.