Wednesday, August 15, 2018

Wednesday Constitution Classes and Meetings

Constitution Education
Wednesday, August 15, 2018
  • 1:00 pm, Menifee, Homeschool Program.  Beginning today I will be hosting a government class for a group of homeschool students.  This is a sixteen week course, presented in a college-style format.  The textbook, A Promise of American Liberty, is currently held up in publishing issues.  I will advise all of you the moment the book is available.
  • 4:00 pm, Temecula, Constitution Association Weekly Board Meeting.  All are welcome to attend, but only board members will have a vote on the issues presented.  We will be meeting at the Riverside County Republican Party headquarters, 28120 Jefferson Ave., Temecula.  We have changed our location to this one since most of the board members also attend Doug's evening Constitution Class.
  • 6:00 pm, Temecula, Temecula Constitution Class.  Riverside County Republican Party headquarters.  This week's lesson:
Constitution Class Handout
Instructor: Douglas V. Gibbs
 
 
Lesson 02
 
Legislative Branch
 
Legislative Powers

Article I, Section 1: All Legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
 
Article I establishes the Legislative Branch of the federal government. Article I, Section 1 of the U.S. Constitution establishes the two parts of Congress, and grants all legislative powers to the two Houses of the Congress of the United States. When studying the language used in Article I, Section 1, the original intent by the Founding Fathers becomes clear.
 
The first word in the first section of Article I is the word "all." The definition of all is "the whole of a particular thing."
 
The next words in Article I, Section 1 are legislative powers. Legislative powers are the ability to make law, modify law, repeal law, and anything else that has to do with affecting law.
 
The next word in the clause is "herein." The primary definition of herein is "here in this document."
 
After herein is the word granted. Granted is defined as "to give," "to allow," or more specifically "to legally transfer." If powers are granted, then there must be a "grantor," as well as a grantee. As we learned in our discussion regarding The Preamble, the "grantor" of the authorities enumerated in the Constitution is the States.
 
"Shall be" is definitive. The Constitution in its first clause reads, "All legislative powers herein granted shall be. . .," shall be meaning "it is," or "it will be."
 
"Vested" is much like "granted." Vested is a legal transfer of something, or in this case, an allowance to have legislative powers at the federal level granted to Congress.
 
The Congress of the United States is the legislative branch of the federal government, and this clause indicates that not only will the Congress be granted all legislative powers given to the federal government, but that the branch of government consists of two houses; a Senate and House of Representatives.
 
All legislative powers, according to this clause, are granted to the Congress by the States for the purpose of making law, modifying law, or repealing law. The powers are herein granted, which means that the laws must fall within the authorities granted by the text of the U.S. Constitution. In other words, laws made must remain consistent with the "powers herein granted."
 
Based on language used in the first clause of the United States Constitution, when members of the judiciary legislates from the bench, or the President issues an executive order to modify a law, such action is unconstitutional. After all, "all legislative powers" were granted to the Congress, not to the judicial branch, or the executive branch.
 
Since all legislative powers belong to the Congress, that means any regulations by federal departments that are not in line with laws made by the Congress that are in line with the authorities granted by the Constitution are unconstitutional as well. All legislative powers belong to the Congress, therefore any "legislative actions" by regulatory agencies, which are a part of the executive branch, are not in line with the original intent of the Constitution.
 
Powers the federal government has were "granted" by the States. "We The People of the United States" granted those powers to the federal government through the Constitution. Therefore, if the federal government acts in a manner that is not consistent with the contract between the States and the U.S. Government, the States have the option to ignore those unconstitutional actions by the federal government. This action of ignoring unconstitutional law is the States' way of being the final arbiters of the Constitution. The term for this kind of action by a State is nullification. Thomas Jefferson, in his draft of the Kentucky Resolutions, explained that any unconstitutional law is null and void, and as an illegal law, the States have the right to nullify it.
 
The concept that only Congress has legislative powers, only the executive branch has executive powers, and the judicial branch only has judicial powers, as described in the first sentence of each of the first three articles of the Constitution, is called Separation of Powers. The purpose of this philosophy is to disallow different branches from abusing the powers not granted to that branch, as well as to protect against collusion.
 
The Separation of Powers also exists between the States, and the federal government. Most authorities granted to the federal government are powers the States did not reserve to themselves. Most authorities retained by the States are not authorized to be administered to by the federal government. There are a few authorities that are concurrent, meaning that both the federal government, and the States, have some authority over the issue. One issue that is concurrent is immigration, which will be addressed later in this book. Sole authority over a particular power is called Exclusive Powers.
 
House of Representatives
Article I, Section 2 establishes, and defines, the House of Representatives. The members of the House of Representatives are divided among the States proportionally. As it is today, the House of Representatives was the voice of the people in the federal government. Each Representative is chosen to serve for two years, which means every two years every Representative is up for re-election, if they choose to run.
 
The eligibility of a Representative as explained by Article I, Section 2 requires that the candidate must be at least twenty-five years of age, and been a citizen of the United States for at least seven years. The age is lower than for Senators. Representatives were not expected to be as politically savvy as the Senators, and tended to have less experience. The age requirement simply reflected that. Political knowledge and experience tends to come with age.
 
Divided allegiance was a serious concern to the Founding Fathers. The requirement that Representatives have been citizens of the United States for at least seven years reflects that concern. Seven years, for a Representative of the people, was assumed to have been long enough for the Representative to have thrown off any allegiances to other nations.
 
The third clause of Article I, Section 2, includes the 3/5s clause, which was changed by the 14th Amendment following the American Civil War.
 
The Southern States used slaves for their agricultural economies. The southern states were needed to ratify the new constitution. As a condition for ratifying the Constitution, the southern states demanded that the slaves be counted as one whole person each. The idea was that if the slaves were counted as whole persons, the apportionment would tip the scales in their favor through increased representation in the new United States House of Representatives. White populations in the southern states were lower in number when compared to the northern states, due to the rural nature of the Slave States to the south.
 
The Northern States, under the heavy influence of merchants, political elitists, and a group of abolitionists, wanted the slaves counted as "zero" in order to reduce the number of representatives the southern states would receive, which would give the majority to the northern states, thus giving the north more legislative power. With this additional voting power in the House of Representatives, the northern states sought to have greater influence on the federal government through legislation. The plan was to use their legislative power to tyrannically force the southern states into submission, and to eventually abandon slavery.
 
In the interest of compromise, to convince the southern states to ratify the constitution, while giving the northern states the satisfaction that the southern states did not get exactly what they wanted, the decision was made that slaves would be counted as 3/5 of a whole person for the sake of apportionment. In other words, it was not a declaration that they believed blacks to be less than a person, but simply to affect the census in such a way that too much power through apportionment would not be given to either The North or The South, while also ensuring that the Constitution got ratified.
 
G.R. Mobley, author of We the People, Whose Constitution Is It Anyway?, believes the Founding Fathers missed a great opportunity to abolish slavery. He supports the idea that the 3/5s Clause was an error in judgment by the Founders, and that the authors of the Constitution should have only allowed those States that rejected slavery to be members of the union under the Constitution. By failing to ratify the Constitution the southern slave states would then have been on their own as a separate union. Pressure from the Spanish in Florida, and the threat of invasion by Spanish forces, would have then encouraged the slave states to abolish slavery, so that they may rejoin the union, and enjoy the strength of the union of all thirteen States.
 
Historically, it is impossible to know if that is exactly how it would have played out. Regardless of the opportunity, the Founders largely believed they had to compromise to ensure every State remained a member of the union, and ensure that they would receive the required nine ratifications of States in order to put the new federal government into motion.
 
Article I, Section 2, Clause 3, in addition to containing the 3/5s Clause, also establishes the census. The census is a required a head count to be taken once every ten years in order to determine the enumeration for establishing the number of Representatives each State shall receive. The clause also indicates that the number of Representatives shall not exceed one for every thirty thousand. This means there cannot be more than one Representative for a district of thirty thousand. However, it does not indicate there must be one Representative per thirty thousand. If that was the case, we would have thousands of Representatives.
 
Article I, Section 2, Clause 4 states that whenever vacancies happen in the House of Representatives, it is the duty of the Executive Authority to issue Writs of Election to fill such vacancies. What this means is that the Governors of the States have the duty to ensure there is a special election to fill any vacancies that may happen in the House of Representatives.
 
The House of Representatives chooses for itself its own Speaker of the House, and other officers.
 
According to Article I, Section 2, Clause 5, the House of Representatives has the sole power of impeachment. To impeach is to charge with misconduct. The formal process of impeachment may lead to removal of an official accused of unlawful activity or other offenses deemed to be impeachable offenses. Impeachment is not defined as removal from office, though removal from office is often the result of impeachment proceedings. In history, two presidents have been impeached, but neither were removed from office. The presidents who faced impeachment were Andrew Johnson (serving as President of the United States from 1865 to 1869), and William Jefferson Clinton (1993-2001). President Richard Nixon resigned in 1974 before impeachment proceedings began.
 
The United States Senate
Article I, Section 3 established, and defines, the United States Senate. The representation of the States in the U.S. Senate is equal, two per State. The Senators serve for six years, which means every two years an election is held for one-third of the Senate seats. The required minimum age of a Senator is thirty years, five years older than that of a Representative. The increased age requirement for Senators reveals the importance of longer life and political experience, as considered by the Founding Fathers. Allegiance to the United States also remained important to the framers in the U.S. Senate, requiring that Senators need to be nine years a citizen of the United States, rather than the seven years as required of Representatives.
 
Article I, Section 3 originally required that Senators were chosen by the legislatures of the States, rather than voted into office directly by the voters. The appointment of Senators by their State legislatures changed to the vote of the people in 1913 with the ratification of the 17th Amendment. By the State legislatures appointing the Senators, it made the Senate the voice of the States, while the House of Representatives was the voice of the people. By the Houses of Congress being different, it created a natural check and balance, which did not allow the representation of the people to accomplish anything without approval of the voice of the States, and vice versa.
 
Article I, Section 3, Clause 4 establishes the Vice President as the President of the Senate. The Vice President, though a member of the executive branch, is also connected to the legislative branch. The Vice President may preside over the sessions of the U.S. Senate, and even participate in the debates, but in the end, the Vice President has no vote in the U.S. Senate, except as the tie-breaking vote.
 
During the early days of our nation the Vice President attended a large number of sessions of the Senate. He served as the voice of the executive branch in the Senate, ensuring the States' representation in Congress had the opportunity to be exposed to the executive branch's opinions regarding the issues that concerned the States, and the union as a whole.
 
As with the House of Representatives, the Senate chooses its own officers. One of those officers is the President pro tempore, which is the President of the Senate when the Vice President is not present.
 
The House of Representatives has the sole power of impeachment. Article I, Section 3, Clause 6 gives the U.S. Senate the authority to try all impeachments. No conviction can be reached unless two-thirds of the U.S. Senate membership is present. Impeachment cannot extend further than the removal of the impeached from office, and the disqualification to hold any office in the future. However, a legal case can still be brought against the convicted from other sources, according to the law. Since the U.S. Senators were originally appointed by the legislatures of the individual States, this means that impeachment charges could be brought by the people (House of Representatives), but it took the States (Senate) to hear the case, and make the final determination after all evidence was provided. During impeachment hearings, the Chief Justice presides over the hearing, as provided by Article I, Section 3.
 
The 17th Amendment changed the dynamics of our governmental system. Note that many functions by the executive branch are subject to the advise and consent of the Senate. The Senate ratifies treaties, holds hearings for any appointments the executive branch nominates, and the Senate holds the sole power for holding hearings on impeachments. This is because actions by the federal government are subject to approval by the States. The States granted the federal government its powers in the first place.
 
The House of Representatives, as the voice of the people, and the Senate, as the voice of the States, and the natural check and balance that is the result of that relationship between those two Houses of Congress, also enables both Houses together to be a valuable check against the executive branch. One of the emanations of that correlation is the ability of Congress to override a veto with a 2/3 vote. The authority to override vetoes was established to enable the People, and the States, when they are in full agreement regarding a proposed bill, to be able to ensure a law is put into place, and to constrain the executive together through the power of combined vote.
 
Elections and Assembly of Congress
Article I, Section 4 begins, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." This clause establishes that each State may have its own methods for electing members of the Congress. The same applies, as determined in Article II, to presidential elections. If there is a discrepancy, or a question regarding the acceptance of ballots, it is not the job of the courts to make final determination. Article I, Section 4 gives that authority to the State legislatures.
 
The same clause adds, after giving the State legislatures authority over federal elections, that "Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
 
Congress, as discussed earlier, is bicameral. The two Houses of Congress are the House of Representatives, and the United States Senate. The House of Representatives, at the time of the writing of the Constitution, was designed to be as it is now, the voice of the people. Representatives have always been elected by a direct vote. The United States Senate was the voice of the States, appointed by the State legislatures. The appointment of the Senators by representatives of the people is an example of an indirect vote.
 
As the representation of the people, and the States, Congress was not seen as the greatest potential danger in the federal government. Congress was the voice of the people and the States in the federal government; the eyes of the parents to ensure the central government did not grow beyond the authorities granted to it. With Congress representing the oversight by the people, and the States, the oversight powers given to the federal legislature often led to other authorities that allowed Congress to act as a check and balance against potentially dangerous government activity. Giving Congress oversight authorities was a way to ensure that Congress participated in the concept of a government "by the consent of the governed."
 
Though elections were established with the State legislatures prescribing the times, places and manner of holding elections, as a check and balance against that authority, Congress may pass laws to "make or alter such regulations."
 
At the end of the clause giving Congress the authority to act as an oversight regarding the manner in which elections are held, a qualifier is present, expressing, "except as to the Places of chusing Senators."
 
A majority of delegates at the Federal Convention in 1787, by the conclusion of the assembly, were strong supporters of the sovereignty of the States, and the parental nature of the States in relation to the newly formed federal government, and the duty of the States as the final arbiters of the United States Constitution to ensure the new government functioned within the limitations granted to it. A part of that function by the States included the very important fact that the States had a voice in Congress with appointed U.S. Senators. The framers did not want that authority to be tinkered with, so they remind future generations at the end of this clause that though Congress has lawmaking authorities, and oversight authorities, manipulating the dynamics of government where the people, and the States, have a voice in the United States Congress is something not to be fiddled with. A similar advisement also appears at the end of Article V., "and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
 
Oversight powers by the States were seen by the framers as being a right of the States, and as with natural rights of the people, a right is not something that should be able to be taken, but if the holder of the right wishes to give it away, no law can prevent such a foolish action.
 
The second paragraph of Article I, Section 4 reads, "The Congress shall assemble at least once in every Year." The first thought regarding this clause by the typical reader may be, "Of course. How can they get anything done if Congress isn't assembling?"
 
Another question may be, "Why did the framers feel it to be necessary to insert this clause into the Constitution?"
 
During the convention in 1787, there were some who felt this clause was "overburdensome." Government was not supposed to dominate their everyday lives. The members of Congress were not professional politicians, nor did they care to be. They had businesses to run, and lives to live. Surely, the attitude of many of the Founding Fathers was, there is not enough business to compel Congress to meet every single year!
 
Those who supported the concept of an annual meeting reminded the others that Congress was the check the people and the States had available to them in the federal government. It was the duty of Congress to serve as a check against the President, and the federal judiciary. To be an effective check, Congress must meet at least once per year. The clause, it was argued, was for the benefit of the people.
 
In present day politics, the opposite seems to be the norm. Government is viewed as being broken if they do not act on an endless and constant flow of issues, committees, and crises. Politicians view their position as their job, rather than a service they are providing.
 
Originally, the required meeting day was the first Monday in December. That was later changed to noon on the third day of January by the 20th Amendment.
 
Congressional Procedure
Article I, Section 5 requires Congress to have a minimum number of members present in order to do business. That majority constitutes a quorum, and if the Congress deems it necessary, the present members may set fines for members who do not show up. The Houses of Congress may remain in session, during which no formal business is conducted because the House does not have a quorum, so as to prevent executive actions that may be carried out during recess. This kind of session is called a pro forma session.
 
In Article II, Section 2, the President is given the authority to make recess appointments, when Congress is not in session. Normally, the United States Senate has advise and consent authority over appointments, which means that appointments of personnel to fill vacancies are possible for the President to grant, but such appointments requires the approval of the United States Senate (voice of the States). If the Senate is not in session, and an appointment is necessary, the President may make appointments, but the terms of those appointments only last to the end of the Senate's next session. If the Senate is in a pro-forma session, the President may not make any appointments. With Congress only in session when there is work to be done, and the Founders believing that would likely only be once a year, the ability of the President to make appointments when Congress is not in session was a valuable, and necessary, tool. In today's political environment, it seems like Congress is always in session, so recess appointments are not as common.
 
In early January of 2012, President Barack Obama used a recess appointment to name Richard Cordray the new Director of the Consumer Financial Protection Bureau (CFPB). The CFPB is a powerful bureaucracy created by the 2010 Dodd-Frank financial overhaul legislation. However, even though most of the members of Congress were on vacation, the United States Senate was still in session. President Obama's definition of recess, it turned out, was broader than the Constitution's definition. In reality, the U.S. Senate was in pro-forma session. John Berlau, Director of CEI's Center for Investors and Entrepreneurs, called the nomination of former Ohio Attorney General Richard Cordray "very troubling," criticizing both Obama's controversial use of a recess appointment, and the selection of Cordray itself. Berlau later asked, "What's next, appointing nominees when the Senate takes a bathroom break?"
 
Article I, Section 5 also allows each House of Congress to determine its own rules, keep a journal to record proceedings and votes, and that neither house may adjourn without the permission of the other. Section 5 also establishes that if a member of a house does not follow the established rules, the house may punish its members for disorderly behavior, and by a two thirds vote may actually expel a member from Congress.
 
The establishment of rules, holding a hearing in regards to the breaking of those rules, and punishing a member for his behavior, as set forth by Article I, Section 5, was used when Charles Rangel broke the rules of the House of Representatives. He faced a panel for his actions, and was punished by censure in December of 2010. He later sued, spending about a third of his 2014 campaign cash on legal bills in a failed bid to overturn his fall from congressional grace. On December 11, 2013, a federal judge in Washington dismissed the lawsuit, filed by Rangel in the previous April, to get the censure overturned.
 
The mandate to keep a journal to record proceedings and votes was included in this section because the Founders wanted government to be transparent, accessible, and accountable to the people. Deals behind closed doors were not supposed to be a part of our political system.
Congressional Compensation, Privileges, Restrictions
When President George Washington took office, he refused to accept the constitutionally allowed compensation for holding the office. He viewed his office as being a privilege, and an opportunity to once again serve the country he loved. During the Constitutional Convention, Benjamin Franklin considered proposing that elected government officials not be paid for their service. By the end of the debate, it was decided that government representatives should receive fixed stipends by which they may be compensated for the devotion of their time to public service. It was also determined, however, that the compensation should not be so high that it would become the motive for seeking office.
 
Article I, Section 6 of the Constitution addresses compensation, and the rules regarding such. Section 6 also establishes that members of Congress may not be detained while traveling to and from Congress, and that they cannot hold any other office in government while in Congress.
 
Protection from arrest while traveling to and from Congress was not only a privilege based on those enjoyed by their counterparts in the British Parliament, but also a protection from political enemies who may wish to keep certain members of Congress from voting.
 
This section also indicates that no member of Congress shall be appointed to a later office if while in Congress the office was created, or a raise in pay was enacted for that office.
 
To explain this clause, let's visit a recent violation of it during the Obama administration.
 
After Barack Obama won the 2008 Presidential Election, he announced that Hillary Clinton would be his new Secretary of State. The position of Secretary of State received a pay raise while Hillary Clinton was a member of the United States Senate. Article I, Section 6 states that "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall be been created, or the Emoluments whereof shall have been encreased during such time." Since Clinton was a Senator at the time the position of Secretary of State was given a raise, technically she was not eligible for the position to which she was appointed. To resolve this problem, and still allow Mrs. Clinton to accept the position, the Democrats applied the Saxbe Fix, meaning they undid the raise, and Hillary Clinton received the compensation that was in place before the vote she participated in while in the Senate. The Saxbe Fix, or a Salary rollback, is an unconstitutional action. The clause in the Constitution is clear: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time."
 
The Saxbe Fix, or the rollback of the salary, does not change the fact that the emoluments increased during the time Hillary Clinton was in the U.S. Senate.
 
As a tool, the Saxbe fix was nothing new. The salary rollback in the case of a violation of Article I, Section 6, a mechanism by which the President of the United States can avoid restrictions by the United States Constitution which prohibits the President from appointing a current or former member of Congress to a position that was created, or to an office position for which the pay and/or benefits were increased, during the term for which that member was elected until the term has expired, was first used in 1909. The "Saxbe" name was applied to the political maneuver later in history. The Saxbe Fix is named for William Saxbe, a Senator appointed Attorney General by President Richard Nixon in 1973.

Terms:
 
Adjourn: Suspend proceedings to a later time and/or place.
 
Censure: Procedure for publicly reprimanding a public official for inappropriate behavior. There are normally no legal consequences. Censure is not mentioned in the Constitution, but is a procedure devised by the legislature as a tool for formal condemnation of a member of the congressional body.
 
Congress of the United States: The legislative branch of the federal government which consists of two houses; a Senate and House of Representatives. The Congress is the only part of the federal government granted the authority of legislative powers.
 
Granted: To confer, give, or bestow. A gift of legal rights or privileges, or a recognition of asserted rights, as in treaty. To legally transfer.
 
Impeachment: To charge with misconduct. Formal process that may lead to removal of an official accused of unlawful activity; impeachment does not mean the removal from office, though removal from office is often the result of impeachment proceedings.
 
Legislative Powers: The ability to make law, modify law, repeal law, and anything else that has to do with affecting law.
 
Nullification: State power to ignore unconstitutional federal law.
 
President pro tempore: Second highest ranking official of the United States Senate. Vice President is President of the Senate and the highest-ranking official of the Senate despite not being a member of the body. During the Vice President's absence, the president pro tempore presides over its sessions or appoints another senator to do so. The president pro tempore is elected by the Senate and is customarily the most senior senator in the majority party.
 
Pro Forma Session: A session in either house of the United States Congress at which no formal business is expected to be conducted, so as to fulfill the obligation "that neither chamber can adjourn for more than three days without the consent of the other." Pro forma sessions are also used to prevent the President from pocket-vetoing bills, calling the Congress into a special session, and to prevent the President from making recess appointments.
 
Quorum: Minimum number of members of an assembly necessary to conduct the business of that group.
 
Saxby Fix: Salary rollback. A mechanism by which the President of the United States can avoid restrictions by the United States Constitution which prohibits the President from appointing a current or former member of Congress to a position that was created, or to an office position for which the pay and/or benefits were increased, during the term for which that member was elected until the term has expired. First used in 1909, the Saxbe Fix is named for William Saxbe, a Senator appointed to Attorney General by Nixon in 1973.
 
Questions for Discussion:
 
1. If only Congress can make law, then why do some politicians believe that Executive Orders can modify law, or that regulatory agencies can create new regulations to enforce laws that were never passed by Congress?
 
2. The word "granted" reminds us that all powers once belonged to the States, and some of those authorities were "granted" to the federal government for the purpose of carrying out the tasks necessary for the protection, preservation, and promotion of the union. If the federal government was created by the States, then how can statists justify their belief that all federal laws trump all State laws?
 
3. Why do you think the Congress has two legislative houses?
 
4. Why do you think representatives are only elected for two years?
 
5. Why is it significant that only the House can originate bills for raising revenue?
 
6. Why is the power of impeachment belonging to the House so important?
 
7. As President of the Senate, what kind of role should the Vice President play in the day to day activities of the United States Senate?
 
8. Why do you think the House of Representatives has the sole power of impeachment, but the Senate has the task of hearing the case?
 
9. How are the dynamics of our governmental system different in relation to how the Senators are appointed, or voted for?
 
10. How was the Senate expected to check the House of Representatives, and work together with the House to check the Executive and Judiciary?
 
11. Why do you think the authority for prescribing the times, places, and manner of holding elections was given to the State Legislatures?
 
12. Why was Congress given the allowance to pass laws that may make or alter such regulations?
 
13. Why was the federal government prohibited from influencing the places for choosing Senators?
 
14. To conduct business, the houses of Congress need a quorum. If they do not have a majority, they may remain in session through a rule established by Congress called pro forma. What advantages does pro forma give the houses of Congress when it comes as serving as a check against the executive branch?
 
15. Why do you think neither house can adjourn without the permission of the other?
 
16. The houses of Congress establish their own rules of procedure. If a member breaks any of these rules, Congress also has the authority to punish the rule breaker. One type of punishment is called censure. How is censure an adequate punishment?
 
17. How has the concept of transparency changed over the last two hundred years?
 
Resources:
 
Edwin Mora, "Top Democrat Dodges Question on Constitutionality of Obama Appointments, Says Pro Forma Sessions Are 'Games Being Played'," CNSnews.com (January 6, 2012): http://cnsnews.com/news/article/top-democrat-dodges-question-constitutionality-obama-appointments-says-pro-forma
 
 
Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Larry Schweikart and Michael Allen, A Patriot's History of the United States; New York: Sentinel (2004).
 
Madison's Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution - Volume Two - Preamble through Article I, Section 8, Clause 4; Indianapolis: Liberty Fund (1987).
 
Saxbe, William B. I've Seen the Elephant: An Autobiography. Kent State University Press (2000).
 
 
 
Copyright: Douglas V. Gibbs, 2014

Video: Constitution Class Corona - Preamble

Instructor: Douglas V. Gibbs





-- Political Pistachio Conservative News and Commentary

Tuesday, August 14, 2018

Corona Constitution Class: Preamble

Corona Constitution Class, 6:00 pm Tuesdays
AllStar/CARSTAR Collision
522 Railroad Street
Corona, CA

If you've been waiting until new classes start . . . now is the time to join us!  


Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com
 
www.politicalpistachio.com
www.douglasvgibbs.com
www.constitutionassociation.com
 
 
 
Lesson 01
 
Historical Influences and the Preamble
 
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
 
            History
 
The formal version of the Magna Carta in England was issued on June 19, 1215. There was a minor change in the new document, when the final provision was drafted, replacing the term "any baron" with "any freeman" in stipulating to whom the provisions applied. The term would eventually include all Englishmen. The final version's applicability to all members of the English Society served as a starting point for the Constitution's Preamble, where "any freeman" was changed once again, but this time to the first three words of the American document: "We the People."
 
The English Colonists developed legal codes largely incorporating liberties guaranteed by the Magna Carta and the 1689 English Bill of Rights. Though the education levels of the colonists varied, and few could afford legal training in England, they were familiar with English common law. During one parliamentary debate in the late 18th century, Edmund Burke observed, "In no country, perhaps in the world, is law so general a study."
 
James Madison and Thomas Jefferson drew inspiration from the doctrines of the British constitution, or in what were called English liberties.
 
Unlike the Spanish Colonies, which were conquered land ruled over by the Spanish Conquistadors, and authoritarian governors, the English Colonies were granted by charter. Rather than bear the burden of empire, which, as Spain discovered, could be expensive, and taxing on a nation's armed forces, the English Crown offered the lands along the Atlantic Coast to investors, entrepreneurs, and families seeking a new start. In the northern colonies, the colonists sought religious freedom. The Pilgrims did not want to keep their membership in the Church of England. As separatists, the Pilgrims organized their worship independently, colonizing north of the Puritans at Plymouth Rock.
 
The English Colonies enjoyed autonomy that the Spanish Colonies did not. To survive in the Spanish Colonies, the colonist exhibited a warrior spirit, conquering the lands and the people who stood in the way, forcing the captured natives into slave labor and marriage for the purpose of accomplishing the tasks necessary for survival, while also being heavily dependent upon supplies from the homeland. The English Colonies were expected to survive by living off the land. They were families, indentured servants, and seekers of fortune. They were forced to be self-reliant, personally responsible, and hard working, in order to survive. The English Colonists did not attempt to conquer the natives as the Spanish did, but worked with them, making treaties with the Native Americans, because they needed the native population's help in order to survive. In the English Colonies, freedom was a necessary component of survival, and after failing under communitarianism, the colonists found that a free market system, where colonists kept more of what they worked for, and had the option to trade goods in an open market, worked best for the burgeoning society.
 
In English America, freemen adopted the best of the English system, while adapting it as necessary to the new circumstances in the colonies. The English Colonies was a place where a person could rise by merit, not by birth. The thirteen colonies was a place where men could voice their opinions and actively share in self-government. When the British Crown challenged these beliefs, turning to the colonies as a source of revenue to help alleviate the Crown's substantial debts, and the growing expense of keeping troops on American soil, the colonists questioned the government in Britain, challenging the actions of Parliament, arguing that without consent or direct representation in Parliament, the acts by the motherland were "taxation without representation," and an act of tyranny against the free Englishmen of the colonies.
 
The influence of the Magna Carta, and the demand for liberty, existed along the Atlantic Coast long before the War of Independence. As John Adams later wrote to Thomas Jefferson, "The Revolution was in the minds of the people, and this was effected, from 1760 to 1775, in the course of 15 years before a drop of blood was shed at Lexington."
 
The Americans knew their rights, and they were willing to fight for them. The seal adopted by Massachusetts on the eve of the Revolution summed up the mood. The image was of a militiaman with sword in one hand, and the Magna Carta in the other.
 
When it was time to form a new government, embodied in a written social contract we now know as the Constitution of the United States, the founders determined that like England under the Magna Carta, the government must be limited by subjecting it to the rule of law. The Constitution, once ratified by the States, became the law of the land. The document serves as a written standard where the authority emanates from the people, not from any governmental body. Pursuant to the Constitution, no man, not even the country's leader, was considered to be above the law. The rule of law based on the philosophy of the Laws of Nature and of Nature's God was the basis of constitutional thought in the United States in 1787.
 
"A government of laws, and not of men." - John Adams
 
Elder statesman Benjamin Franklin strolled across a grassy lawn from Independence Hall in Philadelphia, after the conclusion of the Federal Convention of 1787, when a woman in a bonnet approached him, asking, "Sir, what have you given us?"
 
"A republic," Dr. Franklin replied. "If you can keep it."
 
The new government in the fledgling United States was considered to be one that was doomed to fail. Europeans scoffed at the American experiment in self-government. The Old World argued that without the hand of a divinely appointed, wise, ruling monarch in place to guide society, a culture could not succeed. The Grand Experiment was a waste of time, and it would not be long before the rebellious, starving, treasonous, and petulant, English colonists came crawling back to the British Crown, begging to be readmitted to the empire.
 
In a society with no government, people have no freedom. In a society with too much government, people have no freedom.
 
Without government there is no law, and without law there are no enforcers of the law. This kind of system is called an anarchy, which is a transitional form of government. In an anarchy, there is no freedom because the citizens must constantly protect their property, and their lives.
 
With government in place, there are laws in place. When there are laws in place, it is necessary to hire enforcers of the law, such as a police force. A society with a government in place can create an environment of freedom that allows citizens the ability to leave their property and engage in activities away from their homes.
 
Tyranny through a unitary state dominates the pages of history. Tyrannical governments obtain their power through violence, and bloodshed in a complete disregard for authorities granted, justice, or the rule of law. To maintain their power, tyrants use violence and bloodshed. When tyrannies are finally toppled, the path to dislodging tyrannies normally includes violence and bloodshed.
 
Violence and death are the common results of powerful central governments with dominant rulers.
 
Dictators do not normally reveal their plans of tyranny during their rise to power, for the people would never have allowed them to become their leaders if they knew this kind of violence was in their future. Tyrannical leaders render legislative bodies irrelevant, demoting them to nothing more than a consultative assembly.
 
In history, tyranny is the rule, and liberty is the exception. Governments that protect the freedoms of the people, and respect the rights of their citizens, are a rare occurrence. Freedom requires the citizens to be informed and involved. With freedom comes responsibility.
 
An educated society begins by teaching the younger generations the principles of liberty, and to encourage them to be involved in civic activities, and local government. The founders understood we need government, but a limited government was required to secure the rights and property of the citizens. However, because of human nature, the founders realized that without making sure the people remained educated about the system they had established, a downward spiral into despotism and tyranny was inevitable.
 
The Declaration of Independence was approved by the Continental Congress on July 4, 1776, and outlined the reasons why the colonies were seeking independence from Great Britain. The founding document declares that it is the right of the people to alter or abolish their government should it become destructive. It also states these truths are self-evident, and that "all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness."
 
The document penned by Thomas Jefferson includes a list of grievances, most of which are also iterated in the U.S. Constitution. The Declaration calls for fair representation, encourages immigration, calls for a judiciary that is separated from the will of the central leadership, calls for a stop to the presence of a standing army, demands that Great Britain stop the quartering of troops in the houses of the citizens, demands fair trials, and calls for due process, free trade, fair taxation, a protection of rights, and for the Crown to hear the redress of grievances by the colonists.
 
A key aspect of the Declaration of Independence reveals itself in the final sentence of the document. The call for independence ends with the incredible statement, "And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor."
 
Political Spectrum
 
In the battle of Left versus Right, it is important to understand what it all means in the first place. Like-minded individuals naturally tend to gather together when a theater of opinion erupts. Congregating in such a manner, creating political parties, is a part of our human nature. Houses, or chambers, of government are no different. Members of the political assembly who support similar agendas sit together, much in the way social allies tend to hang out together at a dinner party. The classification of "left" and "right" grew out of the tendency of people to group together on one side, or the other.
 
The early definition of "left" and "right" was different than in today's American Society. Among the most commonly known split between the left and the right in a political assembly occurred in France before the French Revolution. Members of the National Assembly sat on the right or the left of the hall depending on their level of political support in regards to the ruling monarchy. Those in support of the monarchy, and the religious elements that came with the reigning government, would sit on the right. The people on the right were defined as being those holding traditional interests in line with the Church and the monarchy, believing the king ruled by divine right, and that Catholicism must continue to be the state religion, and therefore continue to be a strong influence on governance. The people who sat on the right side of the assembly believed that the Church had a vested interest in the political system, and sought to preserve that system.
 
Those who sat on the left side of the hall in France during the period preceding the French Revolution did so in support of "enlightenment," which was considered to be in the interests of rationalism and secularism. The left used secular elements to challenge the Church's long-held influence over government, fostering nationalism among its allies, and promoting hope in constructing and shaping the political community. The left desired to change government by overthrowing the Church and the aristocracy by promoting secularism and nationalism. The planners of this glorious new "Enlightened" government became the leaders of France after the French Revolution, orchestrating a Reign of Terror, which was a period of chaos during which thousands were guillotined for being politically incorrect.
 
The radicals within this new government saw the Catholic Church as the enemy while promoting its Cult of Reason. Like with the monarchy before them, however, it became clear that to control the political and social upheaval, the government in place must also become tyrannical in their own right. Under the rule of statism, France remained a nation unable to cultivate liberty, and one that remained under the iron fist of a dictatorial government. For many, this was no surprise. Some of the planners of the change of the form of government in France knew that in order to keep order they would need to "treat the people as cattle."
 
The French National Assembly established a constitutional monarchy and adopted a new constitution in 1791 that created a Legislative Assembly. The political assembly, as with any other political body, rapidly divided into factions opposing each other. The three factions that formed in the new French Legislative Assembly were the radicals (liberals), moderates (centrists) and conservatives. The radicals (liberals) sat in the left section of the assembly hall, the conservatives sat on the right, and the moderates sat in the center section. Their political identities have some similarities to political movements today in the United States, and had little in common with the pre-revolution arrangement that emphasized itself more on monarchy and religion.
 
America is much younger than the European nations, and never had a landlord class of titled nobles. In fact, the Constitution specifically prohibits such a system. The Founding Fathers desired to break away from European traditions as much as possible, even abandoning much of British Common Law when defining citizenship. To be a British Subject the rules were weak, and divided loyalties ran rampant throughout the British Empire. The United States as a nation could not tolerate divided loyalties, and placed a stronger standard of natural born citizenship upon the President in order to eliminate the opportunity for the executor of the American Form of Government to harbor divided loyalties between the United States of America, and any other nation. That way, the new American government could break completely free of any European influence, and forge itself into a Republic independent from British influence, and in fact, the authoritarian nature of Europe as a whole.
 
The political landscape of the United States of America, since there never was a class of nobles, was simple in the young nation. Either you were a Federalist, an anti-Federalist, or somewhere in between. In other words, you believed in a stronger centralized federal government, you believed that the federal role in government should be limited greatly, or you found yourself somewhere between the two political beliefs.
 
Unlike the Europeans, royalty and religion played no role in determining the nature of American political philosophies. Nearly all of the early American Politicians were deeply religious men, but the political spectrum did not separate factions along religious lines. God played a major role in the principle foundation of the nation, but the founding fathers also determined that no religion could ever take an official role in government. In other words, the establishment of any religion as the official religion of the United States was forbidden. However, the freedom to practice one's religion was not to be infringed upon. Almost all of the signers of the Declaration of Independence were either clergy, or highly involved in their church. 27 of the 56 signers had Christian seminary degrees. The founding fathers fervently prayed in Congress.
 
Benjamin Franklin is widely regarded to be among the least religious of the founding fathers. However, his speech given to Congress on June 28, 1787 asking that Congress have a prayer every morning before conducting business was overtly religious in nature. Despite modern assumptions, there was not a political battle between The Church and the secularists during the founding of the United States of America.
 
From the newer models of government in France, and America, the definition of the Political Spectrum changed, becoming more about the level of control of government over a society, rather than the presence of a monarchy, or established church. Zero percent of government intrusion on the lives of the people inhabits the far right of the current political spectrum, which is a condition known as anarchy. 100% governmental control inhabits the far left extremity of the Political Spectrum, or a totalitarian government. The American form of government, or a Constitutional Republic that operates under the rule of law, is at the center of the political spectrum.
 
Most of the current forms of government present in today's international political arena reside on the left side of the Political Spectrum, drawing their foundations from socialist principles. Socialism is authoritarian. Socialism claims to seek to overthrow the Church and aristocracy by promoting atheism and nationalism, much like the enlightened planners of the French Revolution, only replacing the government they thought to be a tyranny with a tyranny of their own. In Russia, the rise of socialism held the basic tenet of replacing the individual's commitment to God with a commitment to love and serve a collective society ruled by an elite few.
 
When one examines the communist society, which resides on the left side of the Political Spectrum, one finds that if society was ruled over by an equally powerful religious theocracy, the basic governmental elements of the ruling doctrine are the same, and just as tyrannical. Therefore, a controlling government based on religion is no different than an atheistic system of communism. Either way, the form of governance is based on a centralized control over the people, and limits on personal individualism, and freedoms.
 
Economically, leftism encourages increased government involvement with the instruments that regulate the economy. Under a leftist economic system, such as in the communist model, the government seizes control of the industries, eliminating private ownership. In the fascist model, however, the authoritarian political entity engages in corporatism, allowing the private enterprises to remain private, yet bundled together in a uniting strength under authoritarian government rule. Because fascism (from Italian fascismo, Benito Mussolini's authoritarian political movement in Italy 1922 to 1943) was created to be an adverse reaction to the apparent economic failure of Marxism, and labeled itself as the opposite of communism, fascism is often referred to as being right-wing, and ultra-conservative. If you break down the political structure of fascism, however, it becomes apparent that defining fascism as being on the right side of the political spectrum is problematic. Like socialism, fascism exalts the group above the individual (in fascist states often the nation or race is exalted above the identity of the individual). Like other leftist systems, fascism also calls for a separation of church and state, a national civilian army, and progressive taxation. One element of fascism some may argue as being right-wing is the fact that fascism seeks to eliminate labor unions for co-ops. But the co-operatives, in a fascist state, are controlled by the government, and therefore become more leftist than the system before. Though fascism, during the early twentieth century, claimed to be anti-communist, the National Socialism aspect of the ideology places fascism on the left side of the Political Spectrum.
 
Ultimately, the true definition of the Political Spectrum is dependent upon how government interacts with society. Increased government intrusion moves needle on the spectrum to the left. Increasing limitations on government intrusion moves the needle to the right. In both cases, the extreme of totalitarianism, or anarchy, are equally dangerous. Ultimately, most forms of government, despite the promise of fairness, are often only precursors to another form of government. The Founding Fathers realized this, recognizing that the only form of government that both limits the powers of the federal government, while still giving it adequate authority to protect and preserve State Sovereignty, is a Constitutional Republic. They knew that if you pursue leftism too far, an authoritarian government would rise from the movement. If government was limited too much, and the government did not have enough power to enforce law, an authoritarian government would also rise to fill the void.
 
            The Preamble
 
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
 
The Preamble is the introduction of the U.S. Constitution. The opening paragraph of the founding document holds no legal authority. The Preamble serves to establish who is granting the authority to create a new federal government, and the reasons for the decision. We The People of the United States are the grantors. In other words, the States, which were the embodiment of the people, were creating the federal government, and granting authorities to it so that it may function in a manner necessary to protect, promote, and preserve the union of States. The concept became known as federalism.
 
The Preamble is designed much like a permission form the doctor's office may present to you to sign, giving the doctor the authority to perform necessary procedures on your body in order to make you well. The form begins with your name (I, patient's name), and then limits the doctor to only the procedures necessary to make you well. The doctor, if he or she believes additional procedures may be necessary, must ask for your permission before performing the additional procedures that are not granted by your original agreement with them.
 
Like the form in the doctor's office, the Preamble begins with who is granting the authorities. "We the People of the United States" are the grantors of the authorities given to the new federal government. The people, through their States, allow the federal government to exist, and to perform the procedures expressly granted in the United States Constitution.
 
If a homeowner hires a contractor to add a room to their house, a contract is created between the homeowner, and the company hired to do the work. The contract establishes the granted authorities to the construction company regarding the room addition, listing the materials and labor necessary and proper to carry out that task. If, later, after the work begins, the homeowner observes the workers tending to the garden, and mowing the lawn, the homeowner would be angry because lawn maintenance was not among the authorities granted to the contractor hired to provide the service of adding a room to the house. In the same way, through the Constitution, the federal government has been granted a list of authorities that are necessary and proper for it to carry out the tasks vested in it. The tasks directly relate to protecting and preserving the union, while also respecting and promoting State Sovereignty. The federal government's authorities encompass only the external issues necessary to protect the union, and the sovereignty of the States. Internal issues are not granted to the federal government. Local issues are reserved to the local governments, such as the States, counties, and cities.
 
The first three words of the Preamble, "We the People," often lead people to believe that we are a democracy. Taken in context, the first part of the Preamble is not only "We the People," but "We the People of the United States." In the context of original intent, "the people of these States that are united have come together to establish this contract for the following reasons."
 
The words "United States" appear often in the U.S. Constitution. When those words appear in the text of the Constitution, they mean one of two things. Either, "United States" is a reference to the new federal government, or United States means "these states that are united." In the case of the Preamble, both definitions are used. As we notice the first time united States appears in the Declaration of Independence, "united" is not capitalized. Failing to capitalize "united" in the Declaration of Independence was a reflection of the common opinion of the people of that era. America was not a nationalistic country dominated by a powerful government, but a union of States that are sovereign, autonomous, and individual - like the people. We the People are the individual parts of their States, and the States are individual parts of the union.
Early Americans saw the United States in the plural, rather than as a singular nationalistic entity. The people were citizens of their States first, but realized that the States must be united to survive. The individual States would only be safe if they all worked together as a united country. To ensure the union was protected they proposed forming a central government through a social contract called the United States Constitution. This contract to grant limited authorities to a federal government was designed to ensure that the federal government remained limited so as to not infringe on the individual rights of the sovereign States, and the people who resided in those States.
 
A limited government is the essence of liberty.
 
The reasons listed in the Preamble for forming a new government were "In Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." In line with classical writing standards, these reasons were listed in order of importance.
 
The most important reason for the formation of the federal government, the main purpose for the creation of the U.S. Constitution, was "in Order to form a more perfect Union." A union already existed under the Articles of Confederation. A confederation, however, is a weak form of government where nearly all of the power remains with the individual members. A confederation is an association of sovereign member states that, by treaty, or other agreement, have delegated some of their powers to a common institution in order to coordinate policies, without constituting a new state on top of the member states. The government under the Articles of Confederation was formed hastily during the Revolutionary War, and as revealed by Shays' Rebellion, proved to be too weak to protect the union not only from threats beyond our shores, but insurrection from within the country. The founders realized that they needed to form a more perfect union, one with more authorities, while still remaining fairly limited in its power and scope. The realization that the Articles of Confederation were too weak, and either needed to be fixed, or replaced, was first discussed in delegation during the Annapolis Convention in 1786. During that meeting, the attending State delegates decided to meet again in May of 1787 in a convention of all States, which became the Federal Convention of 1787.
 
Under the Articles of Confederation, the central government was as weak as a lamb. What America needed was a central government with the strength of a lion. The problem with lions, however, is that they can kill you if not restrained. So, the Founding Fathers had to figure out a way to create a lion strong enough to deal with the external issues, and conflict between the States, while restraining that lion in such a way that the people living under it were safe from its potential tyranny. The lion is the federal government, and the chains and restraints of a set standard that protects We the People from that lion is the United States Constitution.
 
In the Constitution, the authorities granted to the federal government are limited to protecting, preserving, or promoting the union. The federal government, through the express powers granted in the Constitution, was granted authorities including, but not limited to, maintaining an army and navy in order to protect the union, to collect taxes in order to pay for that military and the other necessary functions created for the purpose of preserving the union, to regulate commerce by acting as a mediator between the States so that the flow of commerce flows regularly and in good order so as to encourage a growing economy for the union, establish a uniform rule of naturalization for the purpose of ensuring the union grows through legal immigration, and to establish post offices so that the many parts of the union may remain in contact with each other. The federal government was created for the sake of the issues related to the union. The federal government was not created to manage local issues that have nothing to do with the union, and everything to do with the unique cultures and societal needs of the local communities.
 
The second reason listed in The Preamble for the creation of the federal government through the ratification of the U.S. Constitution were to "establish Justice." Note that the word "establish" is normally used in situations where whatever is being established never previously existed. The word "establish" being used in the Preamble, then, leads us to believe that there was no justice prior to the writing of the founding document. However, justice systems already existed in each of the States, through State court systems. Therefore, the U.S. Constitution was not written to establish justice in the States, but to establish justice at the federal level where a judicial system had not previously existed. The language used in the Constitution, in this case, provides us with a clue that the original intent of the Founding Fathers was for the Constitution to apply only to the federal government, unless it specifically states otherwise.
 
Though "establish Justice" is listed second in the list of reasons for creating the federal government, we must not confuse "importance" with "power." To establish justice was a very important reason for creating a federal government, but the federal court system, for fear of it becoming a powerful judicial oligarchy, was also greatly limited. During the debates of the Constitutional Convention in 1787, there was actually a consideration to not establish a federal court system. The delegates realized that tyranny easily flows through an activist judiciary. The rule of law could be easily compromised by a judicial branch not willing to abide by the original intent of the U.S. Constitution, or poisoned by political ideology. For this reason, the powers of the judicial branch are greatly limited by the Constitution. We will go into more detail regarding those limitations when we get to Article III, and the 11th Amendment.
 
The first two reasons for the writing of the U.S. Constitution, according to the Preamble, were to form a more perfect union through the formation of a federal government, and to establish justice by creating a federal judicial system. Those primary goals reveal to us that the Constitution was not written to grant powers to the States, but for the purpose of creating, yet limiting, a newly formed federal government, which was designed to serve the States by protecting them, and preserving the union they enjoyed. Before the States delegated some of their own powers to the federal government through the Constitution, all of those powers belonged to the States - a political condition known as Original Authority. The States, however, only granted "some" of their powers to the federal government, retaining most of the powers for themselves.
 
The U.S. Constitution, and all language within the document, is directed to the federal government, not to the States, unless specifically indicated otherwise. This is because the States essentially "hired" the federal government to protect and preserve the union. The contract that authorizes the federal government to exist and receive the authorities from the States is the U.S. Constitution. Therefore, it would not be reasonable to assume that the provisions of the Constitution are to be applied to the States as much as it would not be logical to believe that an agreement between you and your doctor tells you what you can and can't do regarding the procedures that are about to be performed on you. The agreement with the doctor is specifically designed to tell the doctor what procedures are allowed, just as the Constitution is specifically designed to tell the federal government what authorities it is allowed to have in order to protect, preserve, and promote the union. In that contract with the doctor there may be instructions that tell you what not to do so as to not undermine healing, such as submersing oneself in water before a wound is fully healed. The same is true in the Constitution. There is a section, Article I, Section 10, that tells the States what they are prohibited from doing. These prohibitions were necessary to ensure the States did not interfere with federal functions.
 
Since it is We The People of the United States who granted the federal government its powers, that means it is the people's responsibility, through the States, responsibility to ensure the federal government acts in a constitutional manner. The Constitution is nothing more than ink and paper if we don't fight for it.
 
The union, at the time of the writing of the Constitution, was fragile. The States, as colonies, or as individual states shortly after the American Revolution, did not always coexist in a mutually beneficial manner. The States enjoyed their own unique cultures, religions, and laws. The States clashed over territory, commerce, and a variety of other issues that often included disputed legal issues and definitions. The States were much like siblings, fighting over everything under the sun; but when it came down to brass tacks, they were united when it came to defending each other.
 
The bickering between the States created an atmosphere that placed the cohesion of the union at risk. Therefore, when it came to creating a more perfect union, it was understood by the framers that the federal government would have to "insure domestic Tranquility" and to "promote the general Welfare."
 
The federal government was expected to ensure there was tranquility between the States by acting as a mediator in disputes. Part of that task by the federal government was to also promote the general welfare of the republic. In other words, the federal government was tasked with making sure the squabbles were properly resolved, while also protecting the union, so that the welfare of the union would not be in jeopardy.
 
The term general Welfare, as it is presented in the Preamble, is capitalized in a curious manner. Welfare is capitalized, but the word "general" is not. Capitalization in the Constitution was often used for the purpose of emphasis. With that tendency as our guide, we recognize that "Welfare" was the key component when these two words were presented in the Preamble. The Founding Fathers were seeking "Welfare" with a capital "W." The founders tasked the federal government with the duty of ensuring there was Welfare in the nation in a general manner. Or, you could say that they wanted the atmosphere in general to be one of "Welfare," or "all's well," hence, the reason general is not capitalized, and Welfare is, in the Preamble.
 
Tucked between "insure domestic Tranquility" and "promote the general Welfare" is the phrase: "provide for the common defence." The placement of this phrase in The Preamble reveals that providing for the common defense was almost as important as ensuring peaceful cooperation between the States, and slightly more important than promoting the general Welfare of the republic (and a necessary part of ensuring the general Welfare).
 
The need to provide for the common defense, one may note, was not listed first in The Preamble as one of the reasons for the creation of the federal government. The Founding Fathers, though they recognized the importance of the federal government to field a military force, as realized from the failure of the government to put down insurrection during Shays' Rebellion under the Articles of Confederation, did not list the need to provide for the common defense at the beginning of the Preamble because a country that places too much importance on a military is doomed to become a police state. Defending this nation was not placed at the bottom of the list of reasons for the writing of the Constitution, either, because a nation that refuses to defend itself ultimately becomes a conquered entity that is subject to the authority of a foreign government. Despite the fear of a powerful military that could be used against the people and the States, providing for the common defense was still indeed one of the primary reasons for creating the federal government in the first place. That is why "provide for the common defence" is listed in the Preamble within the central depths of the body of the paragraph.
 
The final reason for the writing of the Constitution was to "secure the Blessings of Liberty to ourselves and our Posterity." The presence of the word "Blessings" reminds us that the Founding Father's grateful spirit recognized that the result of the American Revolution, and the inspiration for the new federal government, could have only come from the favors of Divine Providence. Liberty, remember, is one of the unalienable rights listed in the Declaration of Independence that has been given to us by The Creator. In fact, that is one of the foundational beliefs of the original intent behind the creation of the federal government. Our rights are granted to us by God, not by government, for if our rights are granted to us by government, government would then be able to take those rights away. This idea of God-granted rights is based on a concept called Natural Law penned by John Locke during the 1600s. In the Declaration of Independence, it is referred to as, "Laws of Nature and of Nature's God." Natural Law is the unchanging moral principles regarded as a basis for all human conduct, which is observable law we participate in as related to our natural existence.
 
The U.S. Constitution was not solely written only to protect our natural rights, liberty, and property. Protecting our rights, liberty, and property are among the chief reasons the Constitution was written in the manner that it was, and protecting those natural rights are predictable byproducts when the Constitution is being followed by the government, but those are not the only reasons for the perceived need to compose the founding document, or for the creation of the federal government.
 
As indicated in the Preamble, the primary reason for the Constitution was "in Order to form a more perfect Union." However, the very formation of that union, and devising a governmental system to protect, preserve and promote that union, was not exclusively for the sake of the union, either. The ultimately desire was to protect the sovereignty of each component of that union - The States. The framers understood that by creating a federal government, the potential for the governmental system to become a tyranny was unleashed. Therefore, in order to protect the rights, liberty and property of the people (more specifically to "secure the Blessings of Liberty to ourselves and our Posterity"), the federal government needed to be limited in its authorities by the rule of law. The law of the land in which the governmental system is limited to, in the case of the United States, is the U.S. Constitution, for the sake of protecting the individuality of the States, and We the People.
 
Terms:
 
Confederation: A confederation is an association of sovereign member states that, by treaty or other agreement, have delegated some of their powers to a common institution in order to coordinate policies, without constituting a new state on top of the member states.
 
English Bill of Rights: The Declaration of Rights in 1689, following the relatively bloodless "Glorious Revolution" of 1688, reasserting Protestant influence in England, and establishing a written declaration based on the belief that rights are granted by God, limiting the power of the king, and guaranteeing individual rights in writing. At its core, the system of government based on the English Bill of Rights, and the Magna Carta, holds as its philosophy that government is to serve the people, not the other way around.
 
Federalism: Government in which the central government's power and authority is limited by local government units, and where each unit is delegated a sphere of power and authority only it can exercise, while other powers must be shared. The term federalism comes from the Latin root foedus, which means "formal agreement or covenant." It includes the interrelationships between the states as well as between the states and the federal government.
 
Magna Carta: The "Great Charter" of English Liberties, forced from King John by the English barons at Runnymede, June 15, 1215. A fundamental constitution, or law guaranteeing rights.
 
Unalienable Rights: Incapable of being alienated, that is, sold and transferred. You can not surrender, sell or transfer unalienable rights, they are a gift from the Creator to the individual and can not under any circumstances be surrendered or taken. All individual's have unalienable rights.
 
 
 
Questions for Discussion:
 
1. How might the United States be different if the Magna Carta, or the Glorious Revolution, had never taken place?
 
2. Many of us were taught to memorize the Preamble in school, others remember it because of the School House Rock cartoon on Saturday mornings, but growing up how many times were we taught what it means?
 
3. Federalism, or the belief in a central government limited by the authorities granted to it in the Constitution, began as a wonderful idea. The members of the "Federalist Party," however, were not satisfied, and desired the federal government to have more authorities than it was granted. Why do you think this is true?
 
4. Why did the Founding Fathers only desire the federal government to be granted powers that regarded the union, and not authorities in regards to other issues?
 
4. The judicial branch was supposed to be the weakest of the three branches. Why do you think the Founding Fathers wanted to limit the judiciary to such an extent?
 
5. One of the founding principles is that our unalienable rights are given to us by the Creator. Is it a coincidence that historically most authoritarian governments that sought to take away the rights of the individual did it either by taking control of the church, or by rejecting religion/the existence of God?
 
6. At what point does a government take "provide for the common defense" too far?
 
Resources:
 
James L. Roark, Michael P. Johnson, Patricia Cline Cohen, Sarah Stage, Alan Lawson, and Susan M. Hartmann, The American Promise: A History of the United States; Boston: Bedford/St. Martin's (2009).
 
James Madison, Federalist No. 41: General View of the Powers Conferred by The Constitution, http://www.constitution.org/fed/federa41.htm
 
John L. Hancock, Liberty Inherited: The Untold Story of America's Exceptionalism; Charleston: Liberty Lane Media (2011)
 
Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Larry Schweikart and Michael Allen, A Patriot's History of the United States; New York: Sentinel (2004).
 
Madison's Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution - Volume Two - Preamble through Article I, Section 8, Clause 4; Indianapolis: Liberty Fund (1987).
 
 
Copyright 2014 Douglas V. Gibbs