In 1863, President Abraham Lincoln delivered a brief but stirring speech while the country was in the process of tearing itself apart in a civil war. During that speech President Lincoln stated a phrase that has helped to capture what democracy means. Lincoln told the audience that had gathered to dedicate a soldier's cemetery that the government that had been formed "of the people, by the people, for the people" would not "perish from the earth." In that phrase, Lincoln summarized what the founding fathers had hoped to capture in documents that shaped the system of government they believed was essential for prosperity and happiness for all mankind. The fact that the United States has remained in existence for more than 200 years does not necessarily mean that the ideals Lincoln spoke of are in existence today. In fact, many would argue that the concepts Lincoln captured in his famous speech at Gettysburg are but distant hopes that the country is no closer to achieving now than it was in 1863. The question then becomes one of analysis and reflection about whether that is true. The Constitution enumerates specific requirements for liberty and representative government and defines the methods and design for that type of government and yet, in many ways the government has come up well short of where Lincoln's words might have carried the nation.
Analyzing the state of the nation in the framework of representation and liberty is facilitated by understanding the specifics of what the founding documents instructed and comparing those documents against specific conditions experienced in the modern era of government. In conducting this analysis it will be helpful to examine the ways in which the framers' intent has been shaped to fit the needs of the country or to fit the desires of government officials. But beyond that, it is important to carefully scrutinize the effects that politicians, parties and components of the government have helped or hindered the American people in accomplishing the goals the framers had envisioned for their posterity. By looking at these various aspects it will be clear in what direction the nation has headed since Lincoln's address.
Of American Liberty
The framers of the Constitution and authors of the founding documents did not put their faith in a utopian society would grow out of the newly liberated colonies. Instead, they put their faith in the construction of a government that could provide for certain needs of the citizenry. The founders knew that men would always carry out bad acts and understood that tyranny was a threat that was not only external powers but from internal powers as well. The framers therefore envisioned a strong government that could protect its citizens and promote the general welfare. Authors of the Federalist Papers critically examined problems with the existing government or as Alexander Hamilton wrote in 1788, "the defects of the existing Confederation" (Federalist Paper 37), and compared those defects to the strengths of the proposed Constitution.
Still, establishing a strong government that had the powers necessary to accomplish the goals the founders saw as essential might also have meant creating a government that could infringe on the rights of its citizens. Hamilton understood this issue when he wrote:
The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands (Federalist Paper 37).
The framers put great faith in a government that derived its power from the people themselves. They knew what it meant to be subject to a despot and were loathe to create a government that could repeat that act against the American people.
The Constitution is almost redundant with its limitations and stipulations on government. In many ways, the document seems preoccupied with restrictions and reserving rights to the people. But it is that very characteristic of the U.S. Constitution that makes the document so uniquely capable of assuring liberty to its people. In fact, the very first line of the Constitution makes clear the document's intent to "secure the Blessings of Liberty to ourselves and our Posterity." But liberty is a concept that is supported by the manner in which the governmental organ is constructed and then carried out. Liberty does not exist in a vacuum but is the by-product of the citizens' ability to restrict government intrusion on their lives.
Of Representative Government
The liberty of the American people is as much reliant on protection from internal despots as it is from foreign invaders. Therefore, the Constitution also takes great pains to assure that the selection and tenure of elected officials subjects them to continuous scrutiny by the people, and that said officials serve virtually at the pleasure of the electorate. James Madison wrote in defense of this subject when writing about the election of the members of The House of Representatives:
As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people (Federalist Paper 52).
So the question of how to tie elections to the needs of the people and the fate of politicians to the manner in which they served those needs, was answered to assure that the peoples' security was not in jeopardy. The Constitution therefore enumerated both the tenure and therefore the temperament of the individuals being elected to various offices.
But answering the question of elections only helps to secure liberty from those branches of the government that are subject to the voice of the people, and does little to address the issue of the judiciary. A powerful judiciary that had life-time appointments could usurp the power of both branches of elected officials if a check to the power was not created. In explaining the vulnerability of judges, Hamilton gives a hint to the difficulty it would be remove them from office.
They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other (Federalist Paper 79).
Hamilton's explanation for action against a judge who has been accused of "malconduct" was ultimately ratified in the Constitution, however quite different language was ultimately used in the document. The Constitution is extremely ambiguous about the tenure of a judge and what constitutes behavior worthy of removing a judge from office:
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. (U.S. Constitution)
Thus, the propensity to do wrong in the judiciary seems extremely strong and whether or not that has taken place is arguable.
What Progress Has Been Made
It seems reasonable that given the ideas expressed by the founders and by the information in the Constitution, that an examination of the progress made in the country as to whether the government has remained "of the people, by the people, for the people" can fairly take place. As a part of this examination it will be helpful to look at current events that have taken place to determine if the liberty of the people is being preserved and to assess if representative government has been maintained.
The area of the government that is arguably the most insulated from the will of the people is the judiciary. In fact, one could argue that the main threats to the liberty of the American people and the principle of representative government come from judicial branch. Over the last fifty years, the American people have become dramatically more polarized in their ideology and as a result, major issues have been decided in the courts rather than at the ballot box. Whether this is happening more frequently or less than in previous years is subject to interpretation but the issue at hand is whether the government is helping to maintain liberty and representation.
One need not look further than 1973 decision of Roe v. Wade wherein many of the laws across the country surrounding abortion have been based. The decision came from the Supreme Court in spite of the fact that many states already had laws on the books that dealt with the issue although some were in conflict. To many, this was primarily an issue of states' rights vs. The right of the federal government to exercise authority over the citizens in private areas. To others, this case was an issue about whether a woman has the right to terminate a pregnancy for any reason. However, in the context of whether the…