The Ideas That Formed the Constitution

... On Sept. 28, 1787, the Confederation Congress asked the state legislatures to provide for the election of delegates to popular conventions to ratify or reject the Constitution. This sparked the greatest political debate in American history....

Schoolbook focus on the framers sometimes leads us to forget that, although the Constitution had only 55 drafters, the convention delegates who adopted it as "the supreme Law of the Land" numbered 1,757 (counting the 109 in Vermont). Many thousands of citizens voted for those delegates. It was the greatest exercise in popular democracy theretofore recorded....

... Eighteenth-century education encompassed religion, music, and English....

But the heart of the curriculum—for boys and a few girls—was made up of the Greco-Roman classics. The Greco-Roman classics are a large body of writing composed in Greek and Latin between the time of the poets Homer and Hesiod (about 800 B.C.E.) until the collapse of the Western Roman Empire in 476 C.E. The lines of Virgil paraphrased on the dollar bill were published around 39 B.C.E....

... Latin instruction began as soon as a child enrolled in grammar school. Lessons typically began at 8 a.m., continued till 11 a.m., resumed at 1 p.m., and continued till dark....

Once the fundamentals were covered, grammar school students read authors such as Virgil and Cicero; the historians Sallust, Livy, and Tacitus; and the poets Virgil, Ovid, Horace, and Juvenal....

More relevant to the Constitution is a 1783 committee report to the Confederation Congress recommending that Congress acquire copies of crucial books. The committee's list included works by Plato, Aristotle, and Plutarch; several volumes of Greek and Roman history... The report is relevant to the Constitution because its authors were James Madison of Virginia, Thomas Mifflin of Pennsylvania, and Hugh Williamson of North Carolina—all future framers...

The Greco-Roman classics remained constantly in the minds of those who drafted and ratified the Constitution...

By the beginning of the fifth century before the Christian Era (500 B.C.E.), Greek civilization had spread far beyond mainland Greece. Hellenic colonies dominated the shores around the Black Sea; the northern Mediterranean as far as Spain...

Hellenic civilization was highly decentralized. The basic unit of government was the city-state. Decentralization tends to promote creativity and progress, and this certainly was true of the Greeks: They became the parents of modern thought....

Socrates was born about 470 [BCE]... Socrates's passion was making friends and finding ways to turn those friends into better, more effective people....

Xenophon was born in Athens in about the year 430.... Xenophon also related Socrates's division of forms of government into kingship (monarchy), aristocracy, plutocracy (which overlaps oligarchy), democracy, and tyranny. Kingship is rule by one person in accordance with the law. Tyranny is rule by one person not subject to law. Aristocracy is government by those who meet certain legal requirements. Plutocracy is rule by the wealthy. Democracy is rule by the people....

Plato was born in either 428 or 427... Plato refined Socrates's classification of political systems and suggested that the better political forms tend to degenerate into corrupt forms. Aristocracy, for example, becomes oligarchy, and democracy becomes tyranny....

... A delegate to a state convention called to ratify the Constitution probably had a pretty good idea of who Socrates, Xenophon, and Plato were, even if the delegate had never studied Greek. The records of the Constitution's ratification show participants in the constitutional debates repeatedly referring to Socrates and Plato and, more rarely, to Xenophon....

John Adams may serve as an example of a leading Founder who relied on Plato.... Adams's underlying theme was that power should be split among legislative, executive, and judicial branches of government. However, he went far beyond the theme to create a veritable encyclopedia of republican governments....

Adams summarized Plato's treatment of how political structures change and deteriorate: Monarchy mutates into aristocracy, aristocracy into oligarchy, oligarchy into democracy, and democracy into tyranny. (Some of Plato's reasons why democracies degenerate into tyrannies were licentiousness, disregard for the rule of law, and rendering "Strangers [i.e., foreigners] equal[] to citizens.")...

... He [Aristotle] was born in Macedonia in 384 B.C.E. At the age of 17, he moved to Athens and enrolled as a student in Plato's Academy. Aristotle always paid tribute to his teacher, although Aristotle took a very different intellectual direction from Plato....

He identified more than 500 species. He's credited with founding the science of zoology.... Aristotle's principal treatise on political science was the "Politeia." English translators commonly render that title as "The Politics" or "The Republic."...

Aristotle divided government officials into three kinds: (1) the deliberators, (2) the magistrates, and (3) the judiciary. This was the precursor to our constitutional division between the legislative, executive, and judicial branches of government.

Similarly, Aristotle argued that officials should govern for the benefit of the people rather than for themselves. This was the seed of the Anglo-American duty of "public trust"...

Aristotle refined Socrates's and Plato's classifications of constitutions. The "Politeia" identified three political systems in which the rulers governed for the benefit of the people. They were:

• Monarchy or kingship—that is, legitimate rule by one person;
• aristocracy—legitimate rule by a relatively small class of "the best" citizens; and
• constitutional democracy checked by the rule of law and by an aristocratic council. This was the form Aristotle called politeia.

Aristotle added that each of these three forms can degenerate into the following deviations:

• Tyranny (the worse of the six)—illegitimate dictatorship for the benefit of the dictator;
• oligarchy—illegitimate rule by and for the benefit of a few; and
• democracy (unchecked by an aristocratic council)....

... Polybius's most important composition was his "Histories." Polybius composed this work to explain to his fellow Greeks how, in a scant period of 53 years, Rome had swelled from a merely Italian power to become the arbiter of the Mediterranean world....

James Madison relied on him in preparing a research memorandum for the Constitutional Convention, Madison's "Notes on Ancient and Modern Confederacies."...

On the pro-Constitution side, Alexander White—a prominent Virginia lawyer, ratifier, and (later) member of Congress—foretold that Americans would preserve their liberty so long as they could elect their officials. He relied on Polybius's description of the Roman republic....

... The first volume of John Adams's survey of republican governments circulated at the Constitutional Convention, and it quoted extensively from the available fragments of De Republica. In those fragments, Cicero set forth the following propositions:

• Law is built on justice; where there is no justice, there is no law.
• A nation (populus) is not just a mass of individuals, but an association based on consent.
• The best constitution mixes elements of monarchy, aristocracy, and democracy.
• The concord of upper, middle, and lower classes is analogous to the blending of musical instruments at a concert.
• Unmixed governments degenerate into corrupt forms, particularly into tyranny. A tyranny is not a true republic because a republic is the property of the people while in a tyranny everything belongs to the ruler.

Later in the "Defence," Adams enlisted Cicero to support Adams's view that in a mixed government the aristocratic interest should be represented by a senate.

... the first volume of John Adams's encyclopedia on republican governments was published in 1787 and circulated at the Constitutional Convention. Adams's book also was discussed extensively during the ensuing debates over the ratification. Adams devoted seven pages to reciting verbatim Machiavelli's discussion of monarchical, aristocratic, popular, and mixed republics in the "Discourses on Livy."...

Adams's volume further cited Machiavelli for the rule that constitution-makers must "presume that all men are bad by nature." In other words, constitutional rules must be drafted on the assumption that people will act in a bad way. This statement by Adams is a useful corrective to the common claim that Adams thought the Constitution could serve only a "moral people." The truth is that Adams invested a lot of time discussing how to draft constitutions so that events worked out well if people were immoral....

John Francis Mercer represented Maryland at the Constitutional Convention... Mercer borrowed another observation from Machiavelli that seems perfectly applicable to today's "woke" crowd:

"That we are the wisest people under the sun, seems to be no longer disputed, and those whose youthful vanity has been flattered, by a transient public applause, think that because they have come later into the world, they have therefore all the wisdom and experience, of those who have gone before them—This is the opinion of the Americans now.—Machiavelli informs us, that it was the firm persuasion of the Florentines, his countrymen, in his day … [P]erhaps the greatest share of confidence is inseperably [sic] united with the greatest share of ignorance."...

... Locke argued that government should tolerate all beliefs with only two exceptions: Catholicism, because the Pope was a foreign sovereign; and atheism, because atheists felt no responsibility to God.

The Constitution, as supplemented by the First Amendment, carried Locke's view even further than Locke had. It recognized choice of religion as a right, not merely as a condition to be tolerated. It also granted full equality to Catholics....

The Constitution's most obviously Lockean provision is the Ninth Amendment. It isn't, as often claimed, a repository of specific unenumerated rights. Rather, it was designed to clarify Locke's rule that any power not given is reserved. My prior Epoch Times essay on the Ninth Amendment describes its role in more detail...

The value of Locke's government creation story is that it provides moral guidance for how governments should treat citizens and how citizens should treat each other.

... Montesquieu contended for separation of powers, he didn't argue that they should be separated entirely. He argued only that no person or persons exercising all of one power should also exercise all of another... The Constitution reflects his view...

Montesquieu argued that republican government broke down if it extended over a large territory. His remedy was a "confederate republic"—a union of states that granted some power to a central authority but retained most authority at the state level...

Why should Congress be able to manipulate its own elections?...

On this point, history has largely vindicated Montesquieu and the Antifederalists. Congressional intervention designed to "cure" electoral problems often has made them worse. Moreover, this power has been a standing invitation to politicians who want to rig voting systems to their own advantage. An excellent case in point is the bill that passed the House of Representatives in 2022 under the Orwellian name of the "For the People Act" (H.R. 1).

... The Constitution was written 236 years ago. Its English is not 21st-century English, but the language of 1787. Moreover, its words aren’t to be read as if they appeared in a novel or a cookbook. They are to be read as components of an 18th-century legal document, the “supreme Law of the Land.”...

Many of the Constitution’s expressions were “terms of art” derived from 18th-century law... The Constitution’s legal terms are explained in my book “The Original Constitution: What It Actually Said and Meant.”...

During the 17th and 18th centuries, five great scholars forged international law into its modern shape. In 1783, the Confederation Congress empaneled a committee consisting of James Madison of Virginia, Thomas Mifflin of Pennsylvania, and Hugh Williamson of North Carolina—all of whom were to serve at the 1787 Constitutional Convention...

... by 1776, the English legal system had become Anglo-American in scope...

First, Americans were used to the pre-existing system. Radically altering it would have been very disruptive.

Second, Anglo-American jurisprudence incorporated Magna Carta (first adopted in 1215; final version in 1225). Magna Carta was probably the most significant secular constitutional document in human history. It served as the cornerstone for many of the rights of Englishmen and Americans. Likewise, Anglo-American jurisprudence incorporated other great documents fortifying individual liberties: the Petition of Right (1628), the Habeas Corpus Act (1679), and the English Bill of Rights (1689)...

The framers wrote the Constitution with Anglo-American jurisprudence in mind. In a 2016 article, I listed 68 words and phrases in the Constitution that derive directly or indirectly from 18th-century English law. (Most are explained in my book, “The Original Constitution.”)...

The Constitution’s framers wrote the document to be construed by judges who understand the Anglo-American precedents and adhere to English-style judicial standards of independence and probity. When judges don’t live up to those standards, they effectively subvert our constitutional structure....

... The U.S. Constitution is America’s highest secular law—“the supreme Law of the Land” (Article VI). It structures the central government, regulates American federalism, and protects individual rights. Its study should, therefore, be a component of the education of every American citizen...

Indeed, for exercising American citizenship, knowing the Constitution is actually more important than studying, say, subsequent U.S. history. And it’s far more significant than many of the other subjects that consume time in public school classrooms...

Producing lawyers, and therefore judges, who thoroughly understand our Supreme Law should be a top priority for all law schools. But reforming legal education will be even more difficult than reforming K-12 schooling...