The US Constitution: A More Perfect Union?

"The Constitution in Danger!" is a cry we hear constantly now. The illegitimate fascist Trump regime violates the document on a daily basis. What is too often overlooked in the analysis of what is happening is the fact that the constitution itself contains weaknesses and loopholes that allowed a traitorous felon like Trump to become POTUS and act with utter disregard for the law. 

I grew up learning that the "Founding Fathers" were supremely wise; that they drew up a "more perfect" constitution for the new United States. Leaving aside the problem of the phrase "more perfect," how perfect was it? The rise of Trump exposed major imperfections. 

We should remember that the delegates to the Constitutional Convention were white men, mostly wealthy white men, many of whom owned other human beings, and that they created a constitution that reflected their time and interests. 

For too long people believed, or said, that the constitution would protect the US against such an outcome. Separation of powers, the courts, Congress -- all have failed to do what they were designed to do, prevent rule by an illegitimate and lawless president and administration. 

The 14th amendment of the 1860s should have prevented Trump from even running for president, for inciting the January 6 insurrection. Many people believed it would. I thought it might. Again, it proved useless because the courts and congress failed to act.

We can blame greed, corruption, bigotry, stupidity, treachery or fear, for the present mess, but those are things the constitution is supposed to guard against: human failings. But the constitution is a document. It relies on humans to uphold it. 

If the voters elect severely flawed officials, who appoint other severely flawed officials, the constitution will not be the protector of rights it is alleged to be. That is exactly where we are. 

"We can impeach the president!" many people cry. Impeachment has been tried twice in Trump's case, and failed both times. He is the first president to be impeached twice. No president has ever been removed through impeachment, only by the undertaker, resignation (Nixon)  or the end of their term. 

The constitution provides for impeachment in Article 2, Section 4. It can also be used to remove the vice-president, cabinet, and all high ranking civil officers as well, for treason, bribery, or other high crimes and misdemeanours. 

That sounds great, but Article 4, Section 2 requires impeachment by the House of Representatives and conviction by the Senate. The first is extremely hard to get, the second virtually impossible, especially if the president's party controls Congress or is even close to a majority. If an attempt to use impeachment to remove the Felonious Trump failed twice, what are the chances of impeaching and convicting the whole festering administration? The process could take years, and fail, s it almost always does.

The more recent 25th Amendment (1967) supposedly added another layer of protection against a crazy or incapacitated POTUS. But it relies on the Vice President and cabinet to implement it. Good luck with that. Even if by some miracle that bunch of criminal loonies did act, it would give us President Vance, which would not be an advance at all.

One of the goals of the constitution was to cement the union of the former colonies, now states. The new constitution was an improvement in that sense on the country's first constitution, the Articles of Confederation, drawn up during the War for Independence. 

The Articles gave the states too much power and the central government too little. But the improvements made by the new constitution didn't prevent the secession of eleven "Confederate States" in 1860-1861, leading to a bloody civil war.

The main reason for that tragedy was the failure of the Founding Fathers to solve the problem of slavery. Many of them were disturbed by the existence of slavery in a country that famously proclaimed human equality and liberty in its Declaration of Independence. But nearly half of the delegates "owned" human beings. They included George Washington and James Madison, who wrote the first drafts of the Constitution. 

The delegates, including anti-slavery delegates, nevertheless voted for the flawed document. Their failure to deal with the slave issue in 1787 reminds me of St. Augustine's oft-quoted prayer, "Lord, make me chaste, but not yet."

The framers did agree to end the African slave trade, but not until 1807. The horrors of the Middle Passage continued legally for twenty more years, and to some extent illegally afterwards. A fugitive "labor" clause required that the enslaved who escaped to another state must be returned their "rightful owners." 

The words "slave" and "slavery" were not used in the Constitution. The framers avoided them, believing that they would sully the document. What was there was sullying enough. 

The infamous 3/5ths clause allowed states to count the enslaved as 3/5ths of a person for purposes of representation, a concession that gave the southern states more representation in the House of Representatives and the Electoral College than they should have had if only whites were enumerated. Thus the legitimacy of slavery was enshrined into the Constitution and the spread of slavery into new states became a contentious issue until it ended in civil war.

Democracy was another thorny issue the makers of the Constitution had to confront. Contrary to claims that the Founding Fathers favored democracy, they tried to prevent it. Democracy, they believed, led to chaos, tyranny, and expropriation of the wealthy (people like themselves). 

The Constitution they designed contained several sections designed to minimize popular influence in politics. It provided that Senators be elected by state legislatures, and that presidents be elected by an "Electoral College" chosen by the same bodies. Voters chose the members of the House of Representatives, but who were the voters? 

All of the states placed various restrictions on voting such as poll taxes or literacy tests. Women were excluded from voting until 1919. The enslaved could technically vote after 1865, but after Reconstruction ended in 1877, they were generally prevented from exercising their voting rights for nearly a century, especially in Southern states.   

Many of the original anti-democratic provisions of 1787 have been reversed by amendments to the Constitution. But not entirely. All eligible voters can now vote for president. But it is not the popular vote that decides the winner. It's the undemocratic Electoral College of 1787. Twice in this young century the winner of the popular vote has failed to win the presidency.  

Senators are now elected by popular vote. But the Senate remains a fundamentally undemocratic body. The Constitution provided that each state could elect two senators. That was a concession to the smaller states, who feared being dominated by the larger ones if the Senate was based on population, as the House of Representatives was. Thus, we have the absurdity that Wyoming with a little over 500,000 people, and California with 40 million, both elect two senators.  

The House of Representatives is theoretically democratic, but the distribution of House seats is often skewed undemocratically by gerrymandering the borders of electoral districts. This is done by the parties who control the state legislatures. Republican attempts to purge certain voters from the voting rolls make things even worse. 

The opposition to the Trump presidency stresses its commitment to "Save Democracy." I fully support that. But we should acknowledge that we are working with an imperfect constitution, and its imperfections have paved the way for an aspiring fascist dictatorship. We should be calling for a movement to "Create a Real Democracy."  

In 1787 a member of the public allegedly asked delegate Ben Franklin what the framers had created. "A republic, if you can keep it," Franklin replied. Notably, Franklin did not say a "democracy." Today, we should be saying that our goal is "A democracy, if we can make it."

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Dying in Paradise: Colonial South Carolina

South Carolina was the wealthiest colony in British North America at the time of the Revolution. It was also the unhealthiest. It was long notorious for its deadly fevers, notably malaria and yellow fever, both transmitted by mosquitoes. 

Dysentery was another major hazard, transmitted by amoebas or bacteria in water. The “bloody flux” subjected many to enormous suffering and in many cases, an early grave. Smallpox and other periodical contagions added to the grisly toll.

Wealth and unhealth were intimately connected. Both arose largely from the cultivation of rice with enslaved Africans, the majority of South Carolina’s population from 1708 until the early 20^th century. [Image: Africans hoeing in the rice fields]

 It is widely known that whites suffered terribly from disease in the lowcountry plantation areas. In Christ Church Parish [now Mount Pleasant] in the early 18th century, the parish register records that 86% of baptized children died before age 20. 

Between 1750 and 1779, planter Henry Ravenel and his wife had 16 children. Eight died before age 5. Only six survived past 21. Of their seven daughters, none lived to be 20. Elias Ball and Mary Delamere, who married in 1721, had six children. All died before age 20. Many other families fared the same or worse. The death rate for whites in early 18^th century Charleston was roughly twice that of the average parish in England or New England at the time. 

Less well known is that Africans also died in large numbers from these diseases and many others. This is due to the staying power of pro-slavery arguments of the 19th century, which claimed that Africans were virtually immune to the “tropical” fevers that killed so many whites. A benevolent God had “designed” African constitutions for this work. 

Gov. John Drayton summed up this argument in 1802: “these situations are particularly unhealthy, and unsuitable to the constitutions of white persons … that of a Negro is perfectly adapted to its cultivation.” In 1850, the Lutheran minister and naturalist John Bachman claimed that Africans were perfectly designed for laboring in the lowcountry environment. [Images: John Drayton and John Bachman] 

In stark contrast, some 18th century observers commented on the heavy mortality of the enslaved. An example is Alexander Garden, a Charleston physician and naturalist for whom the gardenia is named.  Garden served for several years as port physician in the 1750s. In this capacity he inspected arriving ships for signs of contagious diseases. This included slave ships. 

Garden was shocked by what he found. Many of them had lost as much as one-third to three-fourths of their "cargoes" during the voyage from West Africa. The ships on arrival were "so filthy and foul it is a wonder any escape with life.” (Image: JMW Turner, Slave Ship, showing sick slaves being thrown overboard, alive, based on the infamous Zong Case 1783)

Many Africans also died on the slave ships in harbor waiting to be sold. Their bodies were often thrown overboard into the Cooper River to save the cost of burial. In 1769, the royal governor published the following proclamation in the South Carolina Gazette:

"A large number of dead Negroes have been thrown into the river … the noisome smell arising from their putrefaction may become dangerous to the health of the inhabitants." The governor offered a reward to be paid on the conviction of those responsible  in hopes of ending this "inhuman and unchristian practice." [Image: Charleston harbor, c. 1770] 

It did not end. In 1807, the last year that the slave trade was legal, traders brought almost 16,000 Africans to Charleston in the last four months of the year alone. The local economy could not absorb so much "labor" in such a short time. Hundreds died of disease on the filthy ships while waiting to be sold.

In April 1807, The Courier reported on an inquest on the body of an African woman found floating in the harbor. The jury concluded that she died as a result of "a visitation of God," shifting responsibility to the Almighty. They "supposed her to belong to some of the slave ships in this harbour, and thrown into the river, to save expence of burial."

This was hardly an isolated incident. The newspaper's editor noted that such "burials" had become so common that something ought to be done to stop it. His great concern was the unpleasant thought that Charleston's citizens [whites] might eat fish from the harbor that had "fattened on the carcasses of dead Negroes."

Alexander Garden also treated many sick and injured Africans, of whom he wrote: "Masters often pay dear for their barbarity, by the loss of many valuable Negroes, and how can it well be otherwise -- the poor wretches are obliged to labor so hard ... and often overheat themselves, then exposing themselves to the bad air ... The result was pneumonia and other respiratory disorders, "which soon rid them of cruel masters, or more cruel overseers, and end their wretched being."

Further Reading: Peter McCandless, Slavery, Disease, and Suffering in the Southern Lowcountry (Cambridge and New York: Cambridge University Press, 2011, PB, 2014) Winner of the SHEAR Prize for Best Book on the early American Republic, 2012.

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Henry Laurens and the Unfinished "Peace" Painting by Benjamin West, 1782

On October 19, 1781, British general Lord Cornwallis surrendered to George Washington and the French at Yorktown, Virginia. It was the last major battle of the American War for Independence. 

A few months later, in April 1782, American and British delegations began meeting in Paris to negotiate an end to the war. Congress had appointed four men to the America delegation: John Adams of Massachusetts, Benjamin Franklin of Pennsylvania, John Jay of New York, and Henry Laurens of South Carolina. 

The British delegation was led by Richard Oswald, who had made a vast fortune in the African slave trade (Below: Oswald and Hartley)

Negotiations dragged on into November. As they drew near their close, artist Benjamin West went to Paris to paint the delegations. (Below: Self portrait by West)

The American born West had moved from his native Pennsylvania to England well before the war, to pursue his artistic career. He had earned recognition as a painter of historic subjects, such as "The Death of General Wolfe" (1770). 

More than thirty years later, West painted the "Death of Nelson" (1806). Clearly, West had a thing about death scenes! But his aim in Paris was to commemorate peace between his native and adoptive countries.

After West began the painting of the delegations, he ran into problems. Henry Laurens of South Carolina came to Paris only a day before the preliminary treaty was to be signed. Laurens had been imprisoned in the Tower of London for more than a year, until December 1781. After his release, he pled ill health and remained in England, spending some time in the health spa at Bath, "taking the waters." 

In November 1782, Laurens received a letter from Adams informing him that his son John had been killed in a minor skirmish with British foragers at Combahee, South Carolina in August. It was a senseless death, because the war was effectively over. Adams pleaded for Laurens to come to Paris immediately, which he now did. Adams was probably concerned that the delegation had no representative from a Southern state. 

Laurens may have thought that as well. On his arrival, he added a clause to the treaty, requiring the British to return thousands of runaway slaves to their American masters. Oswald conceded it, perhaps because he and Laurens were old business partners in the slave trade. 

One problem with this was that the British commander in America, General Sir Henry Clinton, had promised freedom to all runaways who came over to their lines. (In the end, the British refused to hand over the runaways, which soured relations with the US for many years.)

Laurens' late arrival explains why his portrait is only partly complete in the West painting. Laurens is the figure in red standing at the back. To his right are Franklin, Adams, and Jay. The man to Laurens' left is William Temple Franklin, Ben Franklin's grandson and the Americans' secretary.

West would most likely have finished Laurens' portrait despite his tardiness, if he had not faced a much bigger problem. The British delegates refused to sit for the painting. West gave up and left the right side of the painting blank. 

The unfinished painting ended up in Adams' possession. It remained in the Adams family for many years. It currently hangs in the Winterthur Museum in Delaware.

In 1816 West would paint one of the Americans again: a famous tribute to his fellow Pennsylvanian, Benjamin Franklin.