Constitutional Design

By Douglas V. Gibbs


The United States Constitution is the agreement between the States to create a federal government. The document was written as a result of four months of debates in Philadelphia, Pennsylvania in 1787 by delegates from twelve of the original thirteen States. The Constitution was an agreement between the States to form a federal government for the purpose of protecting, preserving, and promoting the union of States. A constitution existed before the U.S. Constitution, and it was called the Articles of Confederation. The government under the Articles of Confederation, however, was too weak to protect the union of states, so the founders met in May of 1787 to fix the Articles of Confederation, and if necessary, form a whole new government with the writing of a new constitution.

At that convention it was apparent to the delegates that the new government, and the Constitution they were about to write, had to be unique, like the new United States of America. They knew that the United States was exceptional, meaning that this country is different from all of the others around the world.  However, America was exceptional long before the United States became a nation.  The conditions through which the American Colonies emerged contributed to the exceptional nature of the United States of America.

Alexis de Tocqueville in 1831 and 1832 recognized the exceptional nature of the United States, but was astonished by America when he visited the States because among the elites in Europe there was an anti-American sentiment that was sometimes also believed by members of the general populace.  Word had it that the United States was a horrible place steeped in poverty, and a government unable to properly function because it represented the people. When Alexis de Tocqueville visited the United States, however, the truth turned out to be very different from the criticisms of America by the political ruling classes of Europe.

Sigmund Freud said, “America is a great mistake.”  Alexis Tocqueville discovered that not only was America not a mistake, but it was something very special. America was an exceptional nation.

Clearly, American Culture is different from any other culture in the world.  As revealed in our founding documents, and the example provided by the everyday lives of Americans, we are a culture that holds dear our individual rights, and liberty, while keeping a watchful eye on a potentially intrusive government.

The early history of America set the tone for our exceptionalism.  Historically, America was diverse, rugged, and a land of individual opportunity.  For this, the United States was blessed with an incredible influx of immigrants who came to this nation desiring the opportunity to participate in the freedom, and exceptionalism, that America had to offer.

The United States also made its share of mistakes, but rather than sink into despair, this country rose above those dark points in history, correcting the nation’s course, and becoming greater because of those momentary storms of history.  The strengths of our civil society has been different because we have achieved our prosperity through self-governance, where the local governments handle the local issues, and the centralized federal government is tasked only with the complexities of protecting, preserving, and promoting the union.

We cherish our personal freedom, and as a result, the community better benefits.

To understand the Character of Americanism that led to the principles contained on the pages of the United States Constitution, it is important to understand why the British Colonies emerged in the manner that they did.  King James watched the rise, and the decline, of the Spanish Empire, and learned that empires in the New World can be expensive.  So, armed with this knowledge, Great Britain did not approach the New World as conquerors like the Spanish.  Instead, the colonization of America by the English became an investment opportunity for private companies, as well as an opportunity for a new start for families.  Riches were available in the New World, and with the hard work of individual investors, the hope of becoming a wealthy property owner awaited those willing to take the chance.  King James offered charters.  The success of the colonies would also mean a new revenue source for the British monarchy.  Failure would result in a financial loss for the investors, not The Crown.  At that point the entrepreneurial spirit of America was born.

In 1607 the first English colonists arrived at Jamestown. As I mentioned before, the English colonization of North America was very different from that of the Spanish. The lessons of military conquest, and the financial expenses of empire, convinced the English monarchy to use different tact when colonizing the Atlantic Coast. Rather than conquer, adventurers were encouraged to invest in the New World.  English colonists cultivated tobacco, and other crops, for wealth. They produced crop surpluses for export to the Old World, making the English colonies profitable in a potentially unlimited manner.

Taking gold and silver from the New World could only work as long as more gold and silver remained. Spain’s cost to maintain the empire, however, left the Spanish with less remaining as far as profit went. King James I did not wish to create yet another high risk, and expensive, system of colonization, so England’s colonization of the New World on the outskirts of Spain’s New World empire (where Spain could not defend the lands she claimed to rule) was encouraged by a system of investment by various companies with ambitions to reap riches, while benefiting England both overseas and at home.

English colonists were not soldiers filled with the desire of conquest and gold, but families filled with the desire of a new start, property ownership, and riches through farming and trade.

Jamestown, however, failed to yield a profit for the Virginia Company, so after two decades of struggling to survive, the royal government took over operations.

The colonists endured Indian attacks, disease, and starvation with little assistance from the homeland. Bickering among themselves left the colonists with unplanted crops, and shrinking food supplies. In 1607 the local Indians began to bring corn to the colony for barter, which assisted in feeding the colonists, and stocking the Indians with Old World goods they desired. However, the corn was not enough, and in 1610 only 60 of the previous 500 settlers remained alive. These early struggles, however, had an important impact on the English colonies that the Spanish never encountered. The struggles, with limited help from England, instilled a spirit of survival, self-reliance, and independence into the English colonists. From the very beginning the virtues of hard work, and personal responsibility, were important for the sake of survival. Without these characteristics, which were taught to the colonists through their struggles, the English colonies would never have survived. The promised riches of the New World had not materialized at that point, however, but only because a cash crop had not emerged as had been hoped for.

Tobacco, and later cotton, became those cash crops, which became growing industries that attracted droves of English indentured servants to work in the fields.

Colonizing by offering charters had paid off. The English colonies were prospering, and they did so with little interference from the English government. The colonies were self-sufficient, yet England was profiting from the burgeoning farming industries. The only thing holding back the promise of increasing profit to ever higher possibilities was the lack of labor. English arrivals were limited in numbers, and the indentured servants, after seven years of service, were striking out on their own. The southern colonies needed a new work force that was less expensive, not likely to strike out on their own, and capable of increasing in number quickly. The labor-intensive nature of the tobacco crop opened up the eventuality of slave labor.

The charter system was a large part in creating the American virtue of self-reliance. In the southern colonies the promise of riches through property ownership and cash crops encouraged more Englishmen to arrive seeking their fortune. To the north, however, new colonies were being established with a different goal in mind. North of the Chesapeake region, colonies were emerging based on the desire for religious freedom.

The Pilgrims landing at Plymouth Rock in 1620 is the tale we are most familiar with. The Pilgrims were separatists.  Though the Pilgrims’ roots were with the Puritan Church, they endeavored to separate themselves from the Puritan Church, as well as British mainstream society.

These early northern colonies were theocracies, but the strong hold by the Church splintered as more and more colonists moved into the frontier. New strains of Protestantism emerged in the frontier lands to the west of the colonies, and the Puritan Church’s influence lessened with each new settlement to the west. In the colonies the Puritan churches divided and subdivided as well. The Christian founding of these settlements is undeniable, but neither is the diversity of the religious beliefs of the early colonists.

Quakers flocked to Pennsylvania where William Penn was determined to live in peace with the Indians, and all other religious denominations. Penn’s first principle of government was that every settler “enjoy the free expression of his or her faith and exercise of worship towards God.” Pennsylvania tolerated all Protestant sects, as well as Roman Catholics. The government did not compel settlers to attend church services (as in Massachusetts), or pay taxes to maintain a state-supported church (as in Virginia). Pennsylvania was the first of the northern colonies to practice true religious freedom, aside from Rhode Island which had begun to advocate freedom of religion when Roger Williams had been banished by the Puritans in the early 1630s.

The colonies, from the beginning, were separate, self-sufficient, independent entities. Each colony had its own unique culture, its own religion, and even its own political system. The individual colonies were like siblings that fought against each other constantly, while coming to each other’s aid when they felt it was necessary. The American Revolution taught the newly independent states that if they were to survive, they would need to continue to function as a union. It took uniting together as a single force to defeat the British, and it would take being united as a country to survive as a nation.

More than 200 years have passed since the Constitutional Convention in 1787.  The Founding Fathers of the fledgling United States of America provided the framework for the creation of the U.S. Government, and debated for four months over what authorities the federal government should be granted. The central government was designed to protect, preserve, and promote the new union of sovereign states, while being limited in its authorities in order to preserve the basic rights of the individual states, and the American people. The previous constitution, The Articles of Confederation, was too weak, granting the United States Government with virtually no powers, and was unable to field an armed force to put down Shays’ Rebellion in 1786. The new federal government needed to be a stronger system than the old confederation.

With the monarchy gone, the form of government that would protect state sovereignty, while protecting the union, became a matter of debate. Many forms of government were examined, and ultimately the framers decided upon a Republic. They had already tried a Confederation, and the United States Government under the Articles of Confederation had proven to be too weak under such a system. A Unitary government was out of the question, for the “Top down from a single ruling point” style of government was too much like the monarchy the United States had just won their independence from. A pure democracy was a dangerous thing as well. A democracy was just not stable enough, and it was believed that if the people were left to their own devices, the democracy would deteriorate into “mob rule,” and would ultimately become so unstable that an oligarchy would take over the government.  History had proven time and time again that democracies destroy themselves, and become tyrannies after the system breaks down.

The U.S. Constitution was a product of heavy debate, compromise, and serious research of past republican forms of government.  Anticipating the intensity of the debates, and the constant changes of mind by the participants, the convention was held in secret, with the doors and windows closed, so as not to concern the people about their quarreling leaders.

What emerged from the intense debates during the Constitutional Convention was a republic that uses democratic processes to elect the members of the representative government. The new federal government was a far more complex form of government than had been provided by the Articles of Confederation. To protect against the excess of democracy a system of limits, checks, and balances was devised. Three branches of government were established, and even the power of the vote was divided as to diminish power in any one location. The House of Representatives were voted in by the voting public. The Senators of the U.S. Senate were appointed by the state legislatures. An electoral college was devised so that the President would be indirectly voted into office. The members of the judiciary were to be appointed.

The U.S. Constitution became the law of the land.

The first words of the Constitution is We The People. The Constitution was written for We The People, to protect our rights, to protect our freedoms, to protect our union of States.

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 granters.  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 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, and proved to be too weak to protect the union. Therefore, 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 federal government was created for the sake of the union.

The union, at the time of the writing of the Constitution, was fragile. The States, as colonies, or as states shortly after the American Revolution, never got along too well. They had their own cultures, religions, and laws. They fought over turf, commerce, and anything else you could think of. 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 that one of the tasks of the federal government would have to be to ensure the States got along, too.

Sometimes, when I ask somebody what they believe to be the main reason for the writing of the U.S. Constitution, more often than not the response is, “To protect our rights, liberty, and property.” Though protecting our rights, liberty, and property are among the reasons that the Constitution was written in the manner that it was, those are not the reasons for the creation of the founding document, and thus not the reasons for the creation of the federal government.

As indicated in the Preamble, the primary reason for the Constitution is The Union. However, by creating a federal government, the Founding Fathers realized that they were opening up the potential for the governmental system to become a tyranny. 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.

When studying the language used in Article I, Section 1, the original intent by the Founding Fathers in regards to legislative powers becomes apparent.

The first word in the first section of Article I is the word “all.”  The fascinating thing about the word “all” is that it means, as shocking as it may seem, “all.”

The following words 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 is “herein,” which strangely enough means “here in,” as in “here in this constitution.”

The word “granted” follows “herein.”  “Granted” is defined as “to give,” or “to allow,” or more specifically “to legally transfer.”  If powers are granted, then there must be a “grantor,” as well.  As we learned in our discussion regarding The Preamble, the “grantor” in this case is the States.

“Shall be” is definitive.  In other words, the word “shall” does not mean “ought to,” or “maybe.”  “Shall” means that “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.

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.

So let’s review.  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.”

When one considers this clause, it becomes clear that 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, it would also then be reasonable to consider 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 to be unconstitutional as well.  Once again, all legislative powers belong to the Congress, therefore any “legislative actions” by regulatory agencies are not in line with the original intent.

Once again, we must be reminded of who gave the federal government those powers herein the Constitution in the first place? Those powers that the federal government has were “granted” by someone.  The authorities the federal government enjoys were granted by the States.  “We The People of the United States” granted those powers to the federal government.  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.”

The Constitution was designed to protect the union of states, from all enemies, foreign and domestic.

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