Educational institutions are charged with instructing the youth of America about the Constitution on this day. It is an appropriate day, for Americans to take pause, to read and review the US Constitution, to consider what it is and what it is not, to consider the reasons why Our Founding Fathers used plain English to write the 4 pages they did.
"It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters." Daniel Webster
They used words like shall and shall not. They wrote in a language that does not need "interpretation" but in interpretation has been misused. That simple, strong language clearly outlines the authorities, responsibilities, and restrictions imposed on each of the branches and elements of government. And yes, it is a living document, but not in the way that the "interpreters" would pretend.
"In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." Thomas Jefferson
The US Constitution was not the first governing document of the United States. It replaced the Articles of Confederation. It would certainly be a worthy endeavor to review the Articles of Confederation, to review what the Founding Fathers quickly realized were not working, but today, our focus is on the words that did work.
Knowledge is power. Simple language is strong. It's difficult to twist the words of a document that clearly states what is and is not allowed. It's difficult to fool people who can clearly understand those words. Nevertheless, "constitutional lawyers" and politicians have made careers of doing so. And they can only succeed while the American People believe they can't understand what the Constitution says.
"A primary object... should be the education of our youth in the science of government. In a republic, what species of knowledge can be equally important? And what duty more pressing.. than communicating it to those who are to be the future guardians of the liberties of the Country?" George Washington
In the preamble, one cannot help but notice that "We, The People" are the largest words they wrote, and are followed by the goals of the document. This was not by accident and is of considerable consequence. That which grants power can take power away. This short phrase, emphasized in great clarity and size, demonstrates that the Founders put the authority to grant authority of government in the hands of the citizenry, not lawyers, judges, or politicians.
This was in stark contrast to the governmental norms of the day, of monarchies and empires, which ruled subjects, upon the authority of God, whom they claimed had been chosen by birth. Citizens have responsibilities, to knowledgeably choose their representatives, while subjects, at great risk to their lives had to beg, in protests and demonstrations, for rulers, for kings, and dictators, to have mercy on their souls.
Article 1 defines the roles of Congress, of the House of Representatives of the People, and of the Senate, the representatives of the States. It prescribes that only Congress can make laws, not the executive branch. It prescribes that only the Representatives may initiate taxes. While Article 1 affords for Congress to determine how many days it was in session, it does not anticipate that Congress would be in session on a regular basis. Given the authorities and responsibilities of Congress, it was anticipated that they could carry out their business in short order.
It is also not of little consequence the name given the "lower" house, the more powerful house, the House of Representatives. The idea was that these individuals were to be representive of the people that elected them, that they live in the same places. While, it was certainly admirable for these politicians to be educated, it was more important that they be wise, and members of the same communities of the people. The requirement is not that they have a law degree, but that they live in the State they represent, are Citizens, and be at least 25 years old.
Senators had to be at least 30 years old and were originally chose by the State Legislatures. That later part was changed by Amendment in the early 20th Century. But why would the States choose Senators? Because the Senate was designed to be a representative body of the interests of State government. The State governments were closer to the people and had authority to govern domestic policy. The States gave revenue to the Federal Government to operate, to defend the Nation, and to execute Foreign Policy.
And Article 1 states that the Vice President shall preside over the Senate. The role of the Vice-President has changed since the first Congress convened, but that role has never been amended, even if it has been ceded in large part.
Article 2 defines the roles and responsibilities of the executive branch and prescribes that the President is to preside over the day to day governance of the government. It does not make him a ruler and greatly restricts his authority. It requires him to "faithfully" execute the laws passed by Congress, the laws of the Nation, and makes no exception for laws he doesn't like. It provides for
These first two articles are the longest and take up nearly the entire first two pages. They define how the Congress & Executive branches were to be chosen, as well as how they were to be dismissed, or tried, but most importantly what authorities they had.
Article 3 defines the judiciary and its authority, most specifically the Supreme Court of the United States, but not the courts of the states. It is important to note that it affords no authority over the internal mechanisms of the state, nor authority to make laws, but only authority that would derive from the authorities authorized the Federal Government, under the US Constitution. It provides the SCOTUS no authority to alter the US Constitution, or for judges to "interpret" it, but only to rule on its applicability, or the laws and treaties enacted under it.
It affords the judiciary authority to rule in matters only that the Constitution authorizes the Federal Government has authority to legislate. In other words, those things that involve mulitple states or the Federal Government are within its authority to judge, but not those things which are within individual states.
Article 4 requires the State Governments to do certain things, but limits the State Governments in few things, requiring all governments to respect those rights of the other states, and rights of the Citizens of the Nation. In short, it says: play nice with others.
Article 5 spells out how the Constitution can be amended, and sets a high bar for doing so. The Founders knew they couldn't have thought of everything, didn't want the whole Constitution to have to be re-written when a change was needed, nor to allow for it to be altered on a whim. And some things, they knew needed revision, after the political fervors of the day settled down, such as the issue of slavery.
Article 6 provides for payment of debts incurred under the previous government, under the Articles of Confederation. It reiterates that the Constitution overrides all other laws, and that the States have the authorities not given the Federal Government, that no treaty or other law can supercede the authorities and law of the Constitution, though those treaties and laws have the force of law where they do not contradict it.
Article 7 prescribes what constitutes ratification of the Constitution, making clear that the authority to enact it rests with the States. It was agreed to by the Convention on September 17th, 1787, eleven years after the War for Independence from England, a decade after the Colonies began self-governance, as a means to establish a common defense against foreign powers that might see the individual states as easy pickings to expand their empires.
But the Founders knew they were not done. They convened and wrote the Bill of Rights to further restrict the Federal Government, to strengthen the rights of the Citizenry, and preserve the rights of the States to govern in a Republican form of government. The Bill of Rights was finalized on March 4th 1789. It included 12 proposed Amendments, 10 of which were ratified.
The 1st Amendment and the 2nd are often misquoted, partially quoted, and misused. The 1st Amendment does not in any way state a "separation of church and state." It does state that Congress shall not establish a religion, nor infringe the free exercise of religion. It doesn't state that a court cannot have the ten commandments etched in stone or that a schoolteacher is restricted from praying.
It protects the freedom of speech, of saying the things one believes to be true, whether religious beliefs or political beliefs. It protects those rights whether exercised in a newspaper, in a church, or protest, or in the streets. But the only actions it protects are the actions associated with exercising the rights of religious beliefs, and with gathering to peaceably assemble and petition the government.
It doesn't protect anyone's right to burn things, to trespass another's property, or to commit crimes, but it does protect their right to pray to whomever they believe in.
And the 2nd Amendment makes very clear that the right of the People to bear Arms shall NOT be infringed.
The 3rd, 4th, and 5th Amendments protect private property from the Government, from the Military, and from all organs of all governments. It makes warrantless searches illegal, along with warrants that lack probable cause. It makes the seizure of private property, even if temporary, illegal, without due process. It puts the burden of proof on the government to prove why any of these things are necessary or just.
The 6th, 7th, & 8th Amendments provide for further rights against the whims of courts and law enforcement, to the rights of trial by jury, to not be forced to testify against oneself, to confront their accusers.
The 9th & 10th were so important, they said them twice, even after the Constitution had already said it: If authority is not granted to the Federal Government, then the authority rests solely in the hands of the People, or with the States.
The missing amendments, which were not ratified had to do with Congressional Representation and with how to pay Congress. Evidently, the States were less convinced that such things warranted amending the Constitution, than they did in protecting the rights of Citizens, from the potential tyrannies of Government.
The Bill of Rights were sent to the States on September 25th, 1789 and ratified on December 15th 1791. It wouldn't be until 1795, that the States determined to amend the Constitution again. The 11th Amendment clarified the restraints of the Judiciary
The 12th Amendment changed the manner of electing the President and Vice-President. One of the changes was that the Vice-President would no longer be the person who received the 2nd most votes for President, but would be the person who received the most votes for Vice-President.
It would be 70 years before another amendment would be ratified. The 13th Amendment finally ended slavery and was ratified on December 6th, 1865, after the end of the Civil War. The Founders probably did not expect that the change would take so long, since they provided that the change could be enacted in 1808. The last states to keep slavery legal were in the Union, as slavery had been banished in the South previous to the 13th Amendment. It also identified that those convicted of treason and other crimes could be stripped of their rights of Citizenship, and that those stripped of the right to vote by conviction, would also not be counted towards that state's number of representatives of Congress.
The 13th Amendment highlighted the need for the 14th which was ratified in 1868. It re-apportioned Representation to include all Citizens taxed, extended the Bill of Rights to protect against State Governments and re-iterated the rights of Life, Liberty, and Pursuit of Happiness to ALL Citizens.
The 15th Amendment also derived of the 13th. It prevented a Citizen's right to vote from being usurped because of race or previous conditions of slavery. In no way did it extend voting rights to non-citizens. It was ratified on February 3rd, 1870.
It would be another 43 years, before politicians decided to ratify new Amendments to the Constitution. The new Amendments would take a different direction. The new direction was to strengthen the Federal Government, rather than protect or establish the Rights of the People.
The 16th gives Congress the power to collect taxes, directly from the people. This moved the power of the purse from the States to the Federal Government. The 17th Amendment changed the manner in which Senators were chosen. The States would no longer choose representatives in the Senate, but instead Senators would be chosen in statewide elections. These Amendments were ratified in 1913.
The 18th & 21st Amendments cancel each other out. On January 16th, 1919, the 18th was ratified abolishing the legality of alcohol, while the 21st was ratified on December 5th 1933, abolishing the abolishment of alcohol. Why would the Constitution need to be amended for alcohol? Because the Constitution afforded no authority for the US Government or Congress to make alcohol illegal. The only authority Congress had on the subject, prior to Amendment, was to regulate and tax alcohol that crossed state lines. That authority ended at the state lines. The 18th Amendment was the first time that the Federal Government muscled its way into state governance.
The necessity of the 18th Amendment to ban a substance demonstrates why California can make marijuana legal within its borders.
The 19th Amendment gave women the right to vote. It presents a shift in the concept of how America perceived the choice of representation would be made. The Founders conceived that each household should have a say in choosing the individuals who would run the government, while the 19th Amendment changed this concept to each individual citizen. It was ratified in 1920.
The 20th & 22nd changed the effective dates of elected officials. It established January 20th as Inauguration Day and January 3rd as the first session of Congress, requiring them to meet at least once a year. The 22nd also limited the number of terms of the Presidency to 2 1/2, which would apply to every President, other than the one who held office on that day, Franklin D Roosevelt, who stayed for 4. The means of succession for elected officials were still be tinkered with. They were ratified in 1933 & 1951.
The 23rd Amendment changed the nature of the District of Columbia. It had originally been conceived of as an independent seat of government, governed solely by the Congress. In 1961, the residents of Washington DC were given a say in the election of the President.
The 24th Amendment gave the right to vote to Citizens that did not pay taxes. It still did not give a right to vote to non-citizens, to legal or illegal immigrants, but primarily it prevented a tax enacted to vote, even if it also prevented the removal of a right to vote on those that owed the Treasury of the United States millions of dollars in Income Taxes.
The 25th Amendment again tinkered with the means of succession of the President and Vice-President
The 26th Amendment changed the voting age from 21 to 18 and was ratified in 1971.
And the 27th Amendment took the longest to ratify. It was recommended by Congress to the States in July 1791 and ratified in December 1992. It took over 201 years for the States to ratify the Amendment that prevents Congress from changing its pay during its own term in office. Nevertheless, Congress still raises its pay on a regular basis, though they get far more income from other sources, than from their Congressional paycheck.
While reading the US Constitution, one should note what authority is granted the Federal Government, to Congress, to the President, and Supreme Court, as well as what is forbidden it, and what responsibilities it has, but as importantly what is not granted the Federal Government.
When one understands what is not authorized the Federal Government, one is less susceptible to slogans and propaganda of politicians and political parties. When one understands what Congress and the Government can and cannot do, they are less likely to fall for promises those politicians can't fulfill. When one understands that the Founders gave power to the lowest levels of government to maintain the power of governance in the hands of the People, as the People granted the power of governance, one should also understand that their vote has much greater power in the election of those local governments than the elections of national politicians.
Among those things that the Constitution does not grant to the Federal Government, even in all those Amendments, is authority to legislate the definitions of marriage, to legalize or illegalize agriculture, including marijuana, or to regulate the commerce that occurs within a state. It does not have the power to legalize or illegalize health procedures, or to set up a Federal education system. It does not afford authority to the Federal Government to enact speed limit laws or helmet laws. And anything the US Government does not have authority to govern is also outside the jurisdiction of Federal Courts.
Those are domestic governance issues and reserved to the state governments. So, how does Congress get around these restrictions? The power of the purse is pretty significant. The 16th Amendment gave the US Government the authority to tax the people directly, without restriction on how much or by what means. When Congress decided they wanted helmet laws or seat belt laws, they didn't write a law saying Citizens no longer had a right to pursue the happiness of the open road. They wrote a bill penalizing any State that didn't enact the legislation the insurance companies wanted, by withholding tax dollars back to the States.
When the Supreme Court ruled that abortion was legal, it did not rule that the US Government or the State Governments had the authority to determine what medical procedures were legal, but that the particular procedure was guaranteed as a right to privacy.
But what of the Defense of Marriage Act? How is that Constitutional? It is only legal in the sense that DOMA defines the limits of what financial benefits are afforded its employees. It would be un-Constitutional for Congress to define what constitutes the contractual obligations between two individuals of private Citizens. Each State has the authority to legislate the contractual obligations of Citizens in entities such as Corporations, Limited Liability Corporations, Sole Proprietors, Marriage, and Civil Unions, to shareholders, owners, customers, and spouses. Those state laws then define how those companies must interact with others involved in those contracts.
It would take a Constitutional Amendment to change those things, but Constitutional Amendments are what makes the Constitution a living document, not the "interpretations" of judges, lawyers, and politicians. Constitutional Amendments are what ended slavery, abolished alcohol, and abolished abolishment, as well as changed how politicians are elected and who has the power of the purse.
But what would happen if the US Government no longer had a Department of Education or a Department of Labor? It would no longer need to pay those bureacrats or pay for those buildings, or the electric bill, and hence would not need to collect the taxes to do so.
And if those taxes were not levied by the Federal Government, then the State Governments would have to and be able to collect them. Those State (or local governments) would not have to beg the Treasury for those dollars and would be able to collect those taxes for themselves. Those State Governments, elected by the Citizens of those states would then be more responsive to their own Citizens for the things they are responsible to providing, than to Congress and the Federal Government.
And what would your recourse be if you believed strongly that alcohol should be abolished but the Federal Government had no authority to do so? Then you would lead the campaign to convince those with the authority to do so; your State Government or your city government. And what would you do if the Federal Government had no authority, department, or budget to beg for money for a school in your neighborhood? Then you would campaign your fellow citizens to rally your State or Local politicians to raise the taxes for the school you believe is needed, rather than beg bureacrats in DC to grant your city a school.
But what of all that money your Congressmen bring home? That money you call pork when its a bridge to nowhere in another state? That money is less than the taxes your state pays to get the money back. That money could instead be state or city revenue. It's easy to complain when your tax dollars pay for a turtle tunnel in Florida, but much easier to fix when the taxes paid by you are controlled by the politicians that live in your city or your state.
So, why do the states that have the greatest tax burden also elect the politicians that want to accelerate the growth and taxes of the federal government the most? Aren't those voters tired of those taxes? Or do they envy the Citizens of States that pay the least in state taxes? Do the voters of California really want the voters of Texas to be able to choose their school books? Or do those voters in California believe that if they can spread the burden, they can tell the voters of Texas what books they must use?
Today is Constitution Day. Don't take my word for what it says. Read it yourself. And as you read it, think about the reasons why the Founders restricted the powers of the Federal Government, why they reserved the Rights to the People, and to the States. Think about who benefits most from your vote, who listens more to your voice: The President, The Governor, or The Mayor.
We the People are the sole authority by which the government exists. We the people grant that authority and can rescind that authority. We the people determine who we send to Congress. And when We the People understand Our power, then we will no longer accept the abuses of those that have attained the reins of power. But Citizens have a responsibility, to educate themselves on who wishes to represent them in Congress. If we do not maintain our knowledge of what the politicians are doing, we have abdicated our ability to hold them responsible for their abuses. If we blindly trust a politician or a party to rule benevolently, we will be snookered, we will be robbed blind, and chained.
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