Enduring Principle in Constitutional Construction
By BenKuipers Posted in History — Comments (11) / Email this page » / Leave a comment »
For much of American history the Constitution was the focal point of civics instruction and education in the United States, but in the later half of the 20th and early 21st centuries the Declaration of Independence has resumed its rightful position as critical indicator of founding principles. Though simply a declaration of secession without the force of law inherent in the Constitution, the Declaration of Independence contains statements of philosophic principles deeply ingrained in the signatories’ character and found throughout the later Constitution. The distinguished author of the Declaration of Independence envisioned a land whose governments were based on the rule of law, dedicated to the belief in the right of individuals to live their lives free from unjust deprivation of property and government oppression. Above all, the Declaration of Independence was grounded solidly upon the principle that governments derive their just powers only from the consent of the governed. To defend this principle the drafters voluntarily offered to, in Lockean fashion, hazard everything, mutually pledging “to each other, our Lives, our Fortunes, and our sacred honor.”
Thus the Declaration was based on the principle that “all men are created equal, that they are endowed by their creator with certain unalienable Rights”. Furthermore, to protect and “secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed”. Continuing, the Declaration states that the people have the right to “alter or abolish” any government that fails to secure these God-given rights, creating and instituting a new government in such a fashion as to “effect their Safety and Happiness.”
They tried. Through failed experiments under the Articles of Confederation it became apparent that a more vigorous central government was necessary to provide the protection of rights sought and described by the Declaration To better secure their hard-won rights and liberties, the Constitution’s framers met in Philadelphia to create a government energetic enough to fulfill its numerous responsibilities, yet within specific limits designed to check its growth beyond its delegated sphere of imperium. Intended to preserve and secure property rights claimed in the Declaration, the Constitution created a federate, republican system of government designed to protect and defend liberty from government. It forbade the violations of individual rights the British committed prior to the revolution, including suspension of the writ of Habeas Corpus, torture, perpetual surveillance, seizure upon suspicion without a probable cause, abolishment of Posse Comitatus, and warrant-less searches of a person and his property.
The new Constitution was specifically designed to protect the rights of individuals and the pre-existent powers of the States while forestalling the possibility of the eventual emergence of tyrannical government. To achieve this end, the framers entrenched structural limits into the Constitution. Moreover, to provide protection, the framers of the Constitution implemented the unique and ingenious system of government which composes the central government of the United States. A powerful legislative branch, with all delegated power over the sword and the purse, and all matters falling under the mantle of the “enumerated powers,” an independent Judicial branch, peerless in federal cases in its jurisdiction, and the Executive branch, the enforcer of the laws, chief negotiator with foreign powers, and commander in chief of the military completed the system.
Divided into Articles, the Constitution was specifically designed to prevent repetitions of the tyrannical abuses of power by the English Parliament condemned so strongly in the Declaration. Most prominent among these is Article I, Section 8, which defines the limits of the branch of government closest to the sovereigns, the people. It grants Congress authority only for the accomplishments of specific constitutionally permitted aims.
In addition to establishing this strong system of checks and balances within the three branches of government, the Constitution provided an even more important system, the system of divided sovereignty. Complete with sovereignties within sovereignties, imperium in imperio, this dual federal system was designed specifically to deal with the conception of just government the signers of the Declaration of Independence maintained; a system where the government protects the natural pre-existing, God-given rights of the people. Under the system of dual sovereignty, the enforcement of the Constitution was neither left to some government administrator, nor its interpretation solely to a life-tenured government judiciary. Instead, it was to be enforced at its most fundamental level, by the parties to its articles, the people of the several States.
The framers of the Constitution were aware of the inherently evil tendencies of government, its propensity to gather power onto itself until it reigns as a single monolith over all its subjects. They recognized that no matter what a parchment says, liberty is dependent upon the republican character and virtues of its citizenry, and they labored to create a system which fostered rather than hampered these crucial civic virtues. To forestall the possibility of the emergence of such despotism, the framers conceived a brilliant plan, the creation of an extra-governmental system of checks and balances. As a result, the Constitution they created mandated and enforced an atmosphere of divided loyalty to the State and to the federal government. The object of this Constitution was specifically to create a “more perfect Union,” a union to provide for the mutual defense of the States: to secure their liberties and general welfare. In essence, the Constitution sought to defend the independence the States had won during the revolution and assist the States against all force threatened or exercised against them on any grounds in the future while remaining consistent with the principles enshrined in the Declaration of Independence.
This States’ “rights” tradition promoted and fueled psychological opposition to any attempt at nationalization of power. It was recognized that both State and federal governments would be jealous of the affections of the citizenry, both would strive for their loyalties by offering better protection of natural rights, allowing neither to focus on self-aggrandizement. Thus the founders clearly understood that a government could not become absolutist without a monopoly on the loyalty of their citizens. Though within its structure there are defenses of Lockean natural rights theory found in the Declaration of Independence, the Constitution’s Bill of Rights most clearly demonstrates its pedigree.
The Bill of Rights apply equally to all departments and branches of government, and simply enumerate rights without grant, in essence, recognizing the pre-existent natural rights of human beings. Moreover, they act as a further negative force on the aggrandizement of central power. The First Amendment acknowledges freedom of conscience, banning federal intervention in private religious beliefs. The Second recognizes that despotic governments seek to disarm the citizenry and to counter this threat the amendment helps guarantee the right to “throw off such Government, and to provide new guards for their future security.” That is, the right to revolution found in the Declaration. The next three amendments all specifically forbid central government interference with, or violation of, the individual unalienable right to private property. The Ninth Amendment explicitly guarantees that the power grants in the Constitution are limited to their literal English meaning; thus ensuring that the federal government has been notified that the rights enumerated in the Constitution are in no way reflective of the great mass of residual rights and powers the sovereign people possess. The following amendment, the 10th, simply underscores the nature of the Constitution, proclaiming that the central government only possesses those powers delegated to it by the Constitution: all other powers reside with the States or the people.
Though the Constitution largely followed and enacted the principles and promise of the Declaration of Independence, it compromised the core principles of the Declaration in several key areas. Foremost amongst the compromises is the problem of those held in the bondage of involuntary servitude. The Declaration of Independence states unequivocally that “all men are created equal,” and “are endowed by their Creator with certain unalienable Rights,” among which are “Life, Liberty and the pursuit of Happiness.” Additionally, the Declaration makes it clear that governments derive “their just Powers from the consent of the governed.” Those held in involuntary servitude were “governed,” but they assuredly did not give their consent to such a tyrannical system. However, the framers of the Constitution realized the insidious nature of this particular “institution,” and made provision for its eventual elimination as demonstrated by the Northwest Ordinance, and the anti-importation clause. It is important to realize that this “institution” was widespread and had been in existence the full entirety of civilization. The framers understood this conflict but desired to form a “more perfect union,” a country with a bright horizon unfettered by the shrouds of conflict (religious, social, political, economic) which beset Europe. To realize their passion for preserving and expanding liberty for the next generation, the founders compromised and accepted egregious demands, though never truly referencing the “institution.” They recognized its existence without granting it the weight of their moral support. They abhorred it, but believed its temporary acceptance would serve, in the future, to actually expand rather than constrict freedom.
His website ordered him to come here and post something like this, and so he does. He is a Sheeple, doing what he is told to do.
David,
I'm not sure which "site" it is which controls me... but often, herding people to sites, especially of those certain people who may recently have run afoul of certain elements on this fine network of bloggers, is synonymous with herding cats.
Perhaps you could offer a substantive disagreement with any of my historical analysis or constitutional interpretation. I purposely did not make any contemporary policy judgments, but instead left to the individual consciences of the reader the application of this information. I learned in elementary school that despite my best attempts, I could never transplant my mind, my thoughts, my wishes, into another. That person must be drawn by his own convictions, persuaded voluntarily to "take up his cross" so to speak, and follow that which he deems of primary importance.
Thanks.
Reldim,
I'm pleased you are aware of most of what was contained in that post. It was not intended to advocate a specific policy position today, but merely to clarify and restate in a semi-coherent fashion the constitutional framework bequeathed us by the founding generation. I believe intelligent, conservative individuals dedicated to advancing the principles of justice, limited government, federalism and the rule of law will be able to draw consistent and principled conclusions about contemporary policy direction if simply provided the opportunity. By appealing back to these principles of 1787, I have sought to remove from discussion the political rancor which currently obscures discussion, perhaps even on this site. If the intellectual vanguard of conservatism holds fast to true principles, we will be immovable, unassailable, and conflicted from internal contradictions. As George Washington wrote, "[i]f to please the people we offer what we ourselves disapprove, how then shall we stand? Let us raise a standard to which the wise and honest can repair; the rest is in the hands of God."
Thanks
http://www.blogpi.net/inside-the-ron-paul-machine-ii-on-the-assembly-lin...
You rave about a few polls, but the true debates remain untouched. Your post is irresponsible sir. Paul may not win, but to marginalize what he advocates is to stifle the most principled, conscientious and constitutional voice in national politics. If he is too pure, too unsoiled by Washington despite these decades of experience, say so. If you differ in your interpretation of the Constitution of the United States, say it, but do not foist upon us this insidious slander. As a former student of Clarence Thomas, and as a law student, I regret that I must inform you that four of the justices on the Supreme Court believe in Congressman Paul’s construction of the Constitution: Roberts, Scalia, Thomas, and Alito. Perhaps you do not believe in the enforcement of our Constitution, perhaps you believe in a dynamic interpretation, a “living” document, but this is not conservative, it is not consistent with freedom, it is not Republican, it is statist and devoid of any conection with the freedom philosophy.
Have a nice day.
Benjamin S. Kuipers
Case Western Reserve School of Law
He is civil, I'll give him that. Still, the train's running on the same track.
You have a nice day Ben.
Click the link...scroll down the page to Benjamin Kuipers. Very calmly and politely defending...
I had gone to the link, but quit about 10-15 comments down, and ended up taking a couple of the other links on that site.
so you think Roberts and Alito agree with Paul on the Constitution?
Well how about the campaign finanace case? Scalia and Thomas were ready to declare the issue ads ban facially unconstitutional but Roberts and Alito wouldn't go that far - they were only willing to say it was unconstitutional as applied to Wisconsin Right to Life. That what Dr. Paul thinks is the right interpretation? And exactly where did the rest of the field declare that sch flagrant violations were OK with them.
Reldim,
In retrospect and considering the rendered opinions of Justice Alito and Roberts, I must confess that I am disappointed to an extent with their application of the First Amendment in the Wisconsin Right to Life case. These "campaign finance" regulations and prohibitions are facially unconstitutional, and should be abolished with all deliberate speed. I do not speak for any candidate, but only for what I, with all sincerity, believe to be the consistent and original meaning of the U.S. Constitution.
The federal union is one of limited powers, and, as Madison and Jefferson wrote in the VA and KY Resolutions of 1798, the states are not united on the principle of unlimited submission to the federal government. Because the authority to regulate the press is one specifically denied the federal government, as per the First Amendment, and because the Tenth Amendment retains to the Several States those powers not enumerated in the U.S. Constitution, all federal campaign finance laws restricting American citizens freedom of the press are null and void, and should be abolished without delay.
Thanks.
but nonetheless true. The Constitution has a way of impeding "progress," when the state is seen as the means of progress. I happen to think that some form of Campaign Finance Reform is long overdue, that it's a practical necessity - but it also has to pass the constitutional smoke test.
Trouble is, most people don't see the fun in Constitutional governance; you have to look at the rules as adding to the challenge.
Bob King : GraphicTruth.com
Truth Hurts: Treasure the Thorns
My guess is we have a MoRon trying to qualify to post.
Thanks for the history lesson. It was interesting but I already knew most of it. Couldn't help wondering when the historical preface would end and the point you wished to make would start. It never did.
So what exactly do you perceive as the import of your observations about the Constitution to any current political issue?