The USA is a global pioneer in many areas and aspects. Among the arenas of pioneering as aforesaid is constitution making. The advent of the making of constitution was premised on armed struggles, threats, and ultimatums. These constitutional making processes would always have a dominant force dictating terms against an erstwhile dictator or monarch. A good example was America’s former colonial master Britain. The advent of constitutionalism in Britain is the Magna Charta, which was executed by a king who was trying to save his life and throne. The American constitution was however, negotiated on an equal partner basis by representatives of the 13 former British colonies that formed the USA (Smith, 2008). Many nations of the world have now adopted this formula for constitution making in emulating America. Among the largest intellectual debates in the making of the constitution was the Federalism issue, which eventually consolidated all issues and resulted in the eventual consensus.
To express and expound on their points of view, the Federalists came up with the concept of Federalists Papers (Smith, 2008). These were intellectual essays designed to argue the points of view of their authors. Among the key issues canvassed in these papers was the faction issue. The term faction was indeed integral to the constitution making process. The states were mainly divided into two main factions, the southern states and the northern states. The two factions would mainly disagree on issues resulting in animated debate (Smith, 2008). Among the areas of intense debate included slave trade, slavery, universal suffrage, and federalism. Along the way however, the issue of present and future factions became a subject of the factional debate itself. The Federalist extensively handled the issue on what came to be dubbed as the Federalist essay number 10 (Smith, 2008).
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Contemporary historiography unanimously credits the genesis of Federalist essay number 10 to James Madison one of the leaders of the Federalist faction. James however, invited two of his constitutional enactment fellow champions Alexander Hamilton and John Jay (Smith, 2008). The resultant essay can, therefore, be deemed to encompass their tripartite definition and opinions regarding the question of factions. The paper presented the definition of a faction as any section of the citizenry despite their numbers or proportion. These people will then have been brought together and animated by a common issue, circumstance, pursuit or passion (Smith, 2008). Finally, these issues have to be adverse to the interests of entire community or the rights of another legitimate section of the community. These ingredients were necessary for the creation of a faction.
From an elaborative perspective, the Federalists understood that the envisaged a democratic society where one individual would have one vote. However, it is possible for democracy to become a form of tyranny where a certain segment of society has predominantly higher numbers (Smith, 2008). These issues played out many times of the floor of the constitutional plenary as smaller states sought not to be smothered by the more populous states. In a similar manner, a majority group could form a democratically powerful faction. This gender could democratically create discriminatory laws and policies that would affect the minorities. This concept was defined as the mischief of factions. From a political perspective, the mischief of faction entails the majority legally using democratic process to tyrannize the minorities (Smith, 2008). The Federalist, therefore, believed that the constitution should have measurers put in place to protect against the mischief of faction.
This contention hotly contested by the antifederalists. It is worthy of notice that even during the constitutional plenary, most of the southern states were still practicing slavery (Storing, 2014). Many of the delegates at the plenary were actual slave owners. More importantly, the Carolinas were still engaging in slave trade (Lawson & Valelly, 2008). This states were counting on democracy to enable them continue with their vices including slavery and slave trade. Indeed, the antifederalists were so opposed to any tempering of pure democracy that they started opposing the entire constitution in its entirety (Storing, 2014) . To them, as long as the majority in a state supported a vice, the vice should be legal in the particular state (Storing, 2014).
The proposed solution for the mischief of faction was finally introduced in August 1788 though Federalist essay number 84. This essay is credited to Alexander Hamilton writing under the penname Publius (Smith, 2008). The proposal was in the form of a comprehensive Bill of Rights. A Bill or Rights is a set of fundamental and unalienable rights automatically available to each and every citizen of a country. As a safeguard against the mischief of faction, the Bill or Rights would ensure that any law, action or policy of a faction that infringed on a fundamental right would be deemed unconstitutional and, therefore, null and void (Smith, 2008).
The Federalists were very accurate in their predictions. In the compromise that was later arrived at in a consensus building effort, the Bill or Rights was mutilated (Smith, 2008). Most of the provisions that survived mutilation were suspended. As a result thereof, factions developed and democratically thrived in the nascent federation that assumed the title of USA and the Free World (Smith, 2008). Whereas the Constitution, complete with a Bill of Rights was enacted in 1789, slavery continued unabated until the end of the civil war. Further, the Carolinas continued with the evil slave trade (Lawson & Valelly, 2008). Their ships continued to ravage African populations and cart tens of thousands of kidnapped African as merchandise to the now ‘Free World’. It is only in 1808 that slave trade was banned in the USA (Lawson & Valelly, 2008).
Further, even after the end of slavery, the will of factions prevailed and the Jim Crow era began. This was a period in time when racial discrimination was backed by law. The faction of the majority created legal provisions that allowed for the mistreatment of colored communities to the point of murder, (Lawson & Valelly, 2008). Further, white men, operating as a faction curtailed all attempts towards universal suffrage. The first women to attempt to vote or run for office were severely persecuted (Smith, 2008). As long as the right to vote was controlled by the democratic voters through the ballot, they were able to keep out those who would tilt the democratic scales. The white man of majority age was the only faction allowed to vote until well after the Second World War (Smith, 2008).
Another major attribute of factional mischief in the USA is institutionalized racism through the Criminal Justice. As par Alexander (2010) this is one of the factional mischiefs that are still ongoing to date. This argument is premised on a form of de jure equality dubbed ‘color blindness.’ A common saying among human right activists is that the law in its fairness banned sleeping under bridges for the poor and the rich alike. Unfortunately, the rich can only sleep under bridges for fun while the poor sleep under bridges for survival.
This adage defines factional mischief in criminal justice that is still ongoing today. Criminal law in the USA is circumspectly designed to condemn the poor and people of color and favor the rich (Alexander, 2010). A good example is the fight against hard drugs. Cocaine comes in two main versions; pure cocaine for the rich and crack cocaine for the poor. A pure cocaine conviction carries and exponentially smaller sentence than crack cocaine. Many white men are, therefore, serving probationary sentences for pure cocaine convictions while black men are languishing in jail for crack cocaine convictions (Alexander, 2010). This is textbook factional mischief defined in the Federalist papers as aforesaid.
The upshot of the foregoing is that generally, the US constitution is a great legal feat achieved through consensus building under near impossible circumstances. Through Federalist Papers as aforesaid, great Americans including Alexander Hamilton, James Madison, and John Jay argued against future mischief emanating from factions. Their solution for factions was the Bill of rights. The antifederalist faction fought back and created a formidable opposition. A lukewarm compromise was arrived at and most of the absolute provisions of the Bill or Rights were either watered down or suspended. Consequently, loopholes were created in the constitution to allow factional mischief that subsists to the contemporary USA.
References
Alexander, M. M. (2010). The new Jim Crow: Mass incarceration in the age of colorblindness (2nd ed.). Jackson, TN: Distributed by Perseus Distribution.
Lawson, S. F., & Valelly, R. M. (2008). The Two reconstructions: The struggle for black Enfranchisement. The Journal of Southern History , 74 (2), 516. doi:10.2307/27650216
Smith, R. (2008). The American anomaly . Boston: Routledge.
Storing, H. (2014). What the anti-federalists were for: The political thought of the opponents of the constitution . Chicago: University of Chicago Press.
