“The much revered founders of the United States are guilty. Guilty of disliking democracy — even fearing it. They did not want this new country to have democracy. Ever. They erected statutory barriers to it.
“The years leading up the Declaration of Independence gave them them the motive. The years during and immediately after the war for Independence confirmed that motive. The drafting of the Constitution in 1787 gave them the means to carry out this crime. Their intent is confirmed by the writing and passage of the so-called ’Bill of Rights’ — the Constitution’s first ten amendments.”
So begins the prosecution’s opening statement against the founders of the United States – and its Constitution’s esteemed framers.
The defense statement: “The founders were many things. They were first, anti-royalists … abhorring ancestral rule by monarchs. Similarly, they distrusted peerage: the archaic protocol by which great titles and seats to government were granted by heredity. They were believers that government — the state — derives its ‘just powers’ from the consent of the governed. That is to say: the government might have any number of powers at any time, but those that are just and righteous can only be conferred by consent through contract with the people who are governed.
In all these ways the founders and framers were radically protective of ‘we the people.’ The charge itself, then, is unjust. It is not appropriate.”
The prosecution presents its case. To establish the motive, we see videos of angry, shouting mobs. In one, on King Street in Boston, a large crowd of hundreds is spurred on by chants and slogans memorized in dingy pubs from the shallow words of pamphleteering provocateurs. Hundreds scream crude obscenities at a solitary young British sentry.
After a while, eight other soldiers – all but one quite young also – appear to relieve the poor lad. The crowd continues to shout profanities and inane insults. They yell “fire”; actually daring the soldiers to shoot at them. When they still get no response, they begin hurling feces covered rocks. Hooting shouters urge them on. A jar of urine is flung upon the soldiers. Shouting back and forth.
Finally, a soldier opens fire. A struggle and yelling. Then more gunshot. The mob would call it the Boston Massacre. Even founder and patriot John Adams could see the horror of giving the power of law making to a people so easily agitated and manipulated; he defended the soldiers in the King’s Court, earning acquittal for six, and light sentences for the other two… despite a jury of American locals.
In other video clips, we the jury, are shown scenes of similar mobs — yelling, shouting, literally drunk; drunk with spirit, drunk with mob mentality — breaking into the residences of government officials. One after another, in city after city, they are pulled out of their homes, often dressed only in a nightgown. They are stripped naked. To the huzzahs and hollers of the mob — those spurred on by slogans and chants and pamphleteers — we cannot bring ourselves to avert our eyes as the videos show hot oily tar inhumanely poured over bare flesh. They are then covered in feathers.
During the war, popular movements, supported by vox populi, led to harassment of Tories. Those loyal to the established government were subject to all sorts of vengeful acts, not limited to the taking of life and property.
Even after independence, and after the War for Independence (but before the Constitution), the rule of law was subject to the rule of the populace .
“Serious rioting recurred in many of the major cities … Extralegal groups and conventions repeatedly sprang up to take public action into their own hands, to intimidate voters, to regulate prices, or to close courts. … In the 1780s … mobs were taking over the functions of government. This was not simply a chimerical fear, for the legislatures in the 1780s appeared to be extraordinarily susceptible to mass demonstrations and mob violence. State governments were continually forced to submit to various kinds of popular pressures, often expressed outside the regular legal channels.” 
Before, during and even after the revolution. All of these actions, the prosecution points out, were done with the look and feel of popular democracy; And so the framers had the motive to suppress the will of the people, the will of the demos.
Now the prosecution directs our attention to the deed itself: Restricting democracy. The framers gave us – we the people – three branches of government, and yet only one-half of one branch is “chosen by the people”; so says Article 1, Section 2.
How crafty they were to throw “the people” a “democratic bone.” This House would turn over rapidly, every two years, as “chosen by the people.” It served the framers doubly well: 1) this house would give vent to the popular current trends; they could be more responsive to democratic populism and even recite popular chants in the halls of government; and 2) they would probably, hopefully, go back to their plows, mills, and shops after a term or two.
The Senate, the more powerful house of the Legislature, would be chosen not by the people, but by the Legislatures of the States themselves (Article 1, Section 3). These terms were six years, thus allowing the members to take a less populist view, (the defense interjects: “And a more long term view.” The judge pounds the gavel: “That’s out of order and enough of that, counsel!) … ahem, the Senate would naturally take a less populist view, a less democratic view, of legislative issues. Note: Not chosen by the people. Not reflecting the view of the people. Not democracy.
And then, look what they did to the Executive Office. The framers did not want this person to be fawned over by the public, worshiped as some regal or charismatic persona. Consequently, they struggled mightily with what to call this person, and how to choose him.
By what simple non-populist title to address him in person and in legal documents? They feared anything that might smack of privilege or royalty. They desired to convey a humble, yet appropriate title. A struggle for sure; after all, no country yet known had done such a thing. They settled on such a wonderfully simple solution that it was doomed to fail. The executive is the person who presides over government and presides over the highest meetings of government. They called him, simply, President.
The Congress Assembled under the Articles of Confederation (the “constitution” until 1789) had such a title for the person who led their chaotic meetings. The meaning is dated best to Middle English as “the head of a meeting,” or “head of a group of persons.” Note: A simple title, that could not be used to rally the people. Clearly not democratic.
And how to chose this person? He would be elected by special “electors,” making up an “Electoral College”. These electors were chosen by the States by methods of their own choosing. Presumably, these electors would be selected by the various State Legislatures, … and at first they were. Note: Not chosen by the people. Not democracy.
And finally, consider the Judges of the Federal Courts, including the nation’s Supreme Court. These couldn’t possibly be chosen “by the people.” Instead, they are nominated by “the President”, thus not to be chosen “by the people” and approved (or confirmed) by the Senate, who are also not to be chosen by the people.
The Constitution provides the first block of evidence: the weapon used. It provides for four major bodies of government: two for a legislature, an executive, and a judicial body. Only one, the least important and the one with the shortest of terms, is chosen by the people.
We are certain that non-democracy was the framers’ intent, because they almost immediately re-visited the Constitution, considering twelve amendments, and passing ten, by 1791. It is interesting that all of these had to do with the rights of individuals. (The 10thascribed powers to the People and the States if they were not specifically assigned to the Federal Government in the constitution). And yet, voting is not mentioned. It is not even mentioned as a protected right, because there was nothing to protect.
The framers clearly feared democracy. In the constitution, and their Amendments thereto, they conveyed to the people only the smallest of possible direct voice in their own federal government. The founders and framers are guilty of obstructing democracy!
⇒ The Prosecution rests. We the jury are given a short break to consider the evidence thus far (and it is substantial) while the judge considers a summary judgment.
When the judge returns, and we are again seated, he calls for the defense to present its case.
⇒ The Defense Case
Let us be clear about what the Framers and Founders did not give us, … and what they did give us.
They did not give us a monarchy.
Nor, did they leave to us an oligarchy or a plutocracy. They did not leave to us a kleptocracy. They did not leave to us a government to be led by people of privilege, personality and pontification. Nor by individuals solely of clever conceit and charisma. We managed to do all that by ourselves.
They changed history by leaving us and our posterity none of those, but rather a government “of the people, by the people and for the people.” The first in human history. Government power might be acquired by cloudy cunning and connections, but it would be ruled by law. Government power of any sort would not be handed down through paternal genes. Government’s powers were clearly and distinctly separated so that a system of “checks and balances” would keep any one individual from gaining much power or personal gain. The framers blithely believed, as Madison stated in Federalist #10, that drawing government’s representatives from all corners of the nation more or less equally would preclude any one faction from gaining much power. They left us with a well-structured government that protected us from the worst inclinations of those who naturally seek power.
What DID they leave us with then? A shadow of a democracy. In fact, it is a beautiful Republic. With one exception — Representatives to the House of Representatives — the people do not choose the members of federal government directly, but rather very indirectly, through much more local elections to the various State Legislatures. Hence, they in fact DID leave to us a democracy, but a very, very watered down democracy. A Republic!
Your honor, the defense is ready for its closing statement. Ladies and gentlemen of the jury ….
The framers steered as carefully as they could between three extremes — on one side — monarchy, class privilege, and government of nobility, hereditary titles, and peerage; and on the second side, away from the inclinations of individuals and factions to seek so much power that they could squash minorities or their enemies; and, on the final side, from the mindless mob politics of populism, slogans and chants de jour. We should be grateful. They protected us from both the well-known pitfalls observed in history, and those observed in their own lives.
Modern politics vindicates the framers, because politics has devolved nearly exactly into what they feared. Instead of dark pubs and street corners for conniving, chanting and passing of provocative pamphlets we have replaced them with our own little enclaves, our own little echo chambers, where it is acceptable to learn, recite and repeat the very worst of what other people tell us to think about other political factions.
It was not the framers who passed the 17th amendment (in 1912), forcing direct election of Senators, and thus virtually insuring these selections would deteriorate to the same sort of juvenile food fights the framers had reserved for the junior house of congress.
It was not the framers who changed state level constitutions so that the Presidential Electors were chosen by simple plurality of state voters, thus ensuring that Presidential Elections, with greater visibility, would degenerate to even lower and slimier shenanigans, cliche’d sloganeering, hackneyed gamesmanship, muckier mudslinging and high-jacking of media … lower than anything they could have imagined … with ever more grandiose and meaningless showmanship.
Ladies and gentlemen of the jury. The prosecution have made a such a strong case that the Founders and Framers did not want Democracy that we should be convinced the prosecution are correct! So much so, that we should exonerate the founders and thank them.
And turn the next indictment on ourselves. It is we who have allowed the shabbiest form of Democracy to take root in our society. From Huey Long to Occupiers; from The Tea Party to Hope-and-Change; it is we who have shrouded cheap, fanciful popular democracy in a veil of honor. It is we, not the founders, who have failed.
Acquit the Framers. Indict and convict ourselves.
⇒ Prosecution counsel jumps up. “Objection your honor. Defense has not addressed the actual charge! They are justifying prosecution’s case!”
The judge, with flat mouth and glowering eyes, turns to prosecution counsel. “Are you denying defense’s right to acknowledge the crime, and then defend it on non-legal and moral grounds ?”
“Um. Excuse me, your honor. I don’t understand.”
Judge: “Are you denying defense the right to acknowledge the crime?”
“Well … no your honor.”
Judge: “Well then, in that case, you have no objection … do you?
“Um, no sir.”
Judge: “In fact, your case, your evidence, does not address defense’s position at all.” Gravely, with all possible propriety, he slams his gavel. “We are adjourned.”
⇒ The judge will now retire to his chambers, where he will consider summary judgment in favor of the defense. He soon returns, turning judgment over to you, the members of the jury. Are the framers and founders guilty of willfully denying us full democracy? You must consider the judge’s directions: that the evidence and the framers’ own defense says so, strongly. Or, are they innocent, since they have responded to a higher moral calling?; namely: by holding popular democracy just beyond our reach, they were wisely protecting us from ourselves.
And yet, the judge will not entertain a charge against 20th and 21st century America … for it seems we’ve already punished ourselves to a de facto sentence: a lifetime imprisonment within walls equivalent the worst of 18th century pamphleteering and sloganeering. Well, at least we’re not tarring and feathering, yet.
May history treat us better than we deserve.
Joe Girard © 2013
 Gordon W. Wood, “Mobs in the American Revolution.”
 There still is no place in the constitution or its amendments that gives “the people” any right to vote for president, or for presidential electors.
 Really stupid prez slogans we fell for. Most are interchangeable.
1964 – “All the way with LBJ”;
1968 – “This time, vote like your whole world depends on it.” Oh crap, as if we voted like zombies before? (We did, actually).
2000 – “Kinder, Gentler Nation” … Yeah baby, we elected this guy. D’oh!
Equally lame was “Leadership for the New Millenium” from the other guy.
2004 – “A Stronger America” vs. “A Safer World” — quick which candidate had which slogan?
2008 – “Hope and Change/Change you can believe in/Yes, we can!” Oh, really. These in one year is the trifecta of sloganeering turd-pies. Since neither candidate was incumbent, change was inevitable. But the other guy had about 12 slogans and never came close to winning. Moral: cool slogans, cool looks and cool speechifying win.
2012- “Forward” vs “Believe in America”. Geez, can you even tell which party is which … from the slogans?