Thursday, December 30, 2010

Original Intent, Preamble, Article I, Article II

December 30, 2010 - Temecula Constitution Study

Year-End Review of the Original Intent of the U.S. Constitution, The Preamble, Article I, and Article II

Original Intent

More than 200 years have passed since the Constitutional Convention in 1787 where the Founding Fathers of the United States of America provided the framework for the creation of the U.S. Government. The federal 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 U.S. Constitution is the law of the land, and all laws made in pursuance of the U.S. Constitution by the federal government are the supreme law of the land (Article VI, Clause II). The U.S. Constitution is the starting point from which all of our government institutions come. The founding document is the wisdom of the ages, crafted purposely to serve as the foundational base of our system of governance in order to form a more perfect union, while protecting the basic ideals of individual liberty, individual freedom, and our inalienable individual rights from the federal government, or any tyranny that may rise against us, foreign or domestic. This new government was to be based on republicanism, rather than a monarchy, while using some functions of a democracy in order to elect the representatives that would serve in the system.

A woman asked Benjamin Franklin, after the Constitutional Convention had produced the U.S. Constitution, “Sir, what have you given us?”

“A Republic,” Franklin replied. “If you can keep it.”

As a social contract between the States and the newly formed federal government, the U.S. Constitution grants to the federal government a limited number of powers, reserving the remaining powers to the States (Tenth Amendment). The limiting principles set forth by the U.S. Constitution were designed to protect the States’ sovereignty while giving the federal government enough authority to properly protect and preserve the union of individual states. As a result, the United States of America was not designed to be a nationalistic entity, but rather a federation of sovereign states that have granted the authority to maintain the union to a federal governmental system. To understand that the Founding Fathers looked upon the new country as a federation of states, and not a nationalistic entity, one must only look to the language they used.

In the following quotes by two of our founders, through the understanding of language one can recognize how the Founding Fathers viewed the new nation of united states:

"Governments, in general, have been the result of force, of fraud, and accident. After a period of six thousand years has elapsed since the creation, the United States exhibit to the world the first instance, as far as we can learn, of a nation, unattacked by external force, unconvulsed by domestic insurrections, assembling voluntarily, deliberating fully, and deciding calmly concerning that system of government under which they would wish that they and their prosperity should live." -- James Wilson, November 26, 1787 in remarks in Pennsylvania ratifying convention.

“The United States enjoy a scene of prosperity and tranquility under the new government that could hardly have been hoped for.” George Washington in a letter to Catherine Macaulay Graham, July 19, 1791.

In both quotes, if you locate the words “United States,” you will notice that in both cases the word following “United States” does not end with an “s”. This is a significant clue to understanding how the founders viewed the new country. They saw the United States not as a single nationalistic entity, but in the plural, or as a collection of sovereign states united for the purpose of protection, and the preservation of the American way of life.

To further illustrate what I mean, let’s use the word “dogs” in the place of “United States.” If you were to say “the dogs exhibit to the world,” it makes sense that there is more than one dog. If you say “the dog exhibit to the world,” your first realization is that the phrase uses bad grammar. The proper way to say it would be “the dog exhibits to the world.” Dog is singular, therefore the word following it must contain an “s” at the end of the word.

Once again, if you were to say “The dogs enjoy a scene of prosperity,” apparently there are more than one dog. If “dog” in the singular had been used instead, an “s” would be added to the word “enjoy” to make the phrase grammatically correct. Therefore, it would read, “The dog enjoys a scene of prosperity.”

Going back to our quotes, the first quote reads,

“. . . the United States exhibit to the world the first instance, as far as we can learn, of a nation. . .” The United States is a nation, the quote says so. However, the fact that “exhibit” has no “s” reveals that Mr. Wilson did not see the United States in the singular, or as a nationalistic entity, but as a nation of states - a federation of states. The United States, in this quote, is in the plural. The United States, then, in this quote, could very well have read “these states united,” and it would have meant the same thing.

Mr. Washington’s letter reads, “The United States enjoy a scene of prosperity and tranquility under the new government that could hardly have been hoped for.” Once again, there is no “s” at the end of the word after “United States,” meaning that Washington was not referring to a single nationalistic entity, but to a collection of sovereign states. As with Mr. Wilson’s quote, George Washington could have written “The States that are united enjoy a scene of prosperity,” and the sentence would have meant the very same thing.

Understanding how the founders viewed the union is important because it reveals much about why, and how, they wrote the United States Constitution. The founding document was not written to create a national government, but to create a federal government with the power to protect the union of individual states. In other words, the Constitution enables a governing body to protect and preserve the union of the States that are united.

To better understand this, one must consider the important distinction between a nationalist, and a patriot. Patriotism is the wholesome, constructive love of one’s land and people. Nationalism is the unhealthy love of one’s government, accompanied by the aggressive desire to build that governmental system to a point that it is above all else, and becomes the ultimate provider for the public good. In short, Patriotism is love of country, Nationalism is love of government.

The frame of reference of the Founding Fathers was the British Empire. In their independence, the patriots of America desired to be as nothing like the tyranny they had won their independence from as possible. The Founding Fathers, based on their own experiences, the experiences of the colonists before them, and the realities of history, determined that freedom for individuals was best served when the governmental system was limited by the chains of a constitution. Nationalists believe that government should have the authority to enact any act of government for the purpose of forceful benevolence. But if an individual is being forced, how is it benevolent?

Though a federal government could potentially be a bad thing, "no" federal government was an even more dangerous proposition. The Founding Fathers realized that if the states had not united against the British Empire, the Revolutionary War would never have been won. And as a nation, without a federal government wielding enough power to field an army, or tax in order to pay for that army, the new country would not long survive. The Articles of Confederation, a loose agreement between the States, proved to be too weak in the face of Shays’ Rebellion. So, the Founding Fathers set out to create a new government with enough power to form a more perfect union, yet limited enough that it did not become a centralized tyranny such as the one the patriots had just defeated in the War of Independence.

The British Empire was ruled by men. The King believed Britain to be his realm, therefore the concept of property ownership was limited to a small group of land owners, who were the Lords of Britain. The King, and the nobles, had complete power over making law, and imposing taxes. Therefore, the Founding Fathers realized that a nation ruled by an oligarchy of political elite was not compatible with the society that would champion liberty, and individual rights, that the founders desired.

A Democracy is a system of government ruled completely by the people. All laws and governmental functions, in such a system, are determined by the whim of the people. Historically, democracies are transitional governments that, when the people seek a governmental system more efficient and stable than their fickled democracies, become oligarchies, or a governmental system characterized by the many being ruled over by a few political elites. Therefore, the founders did not desire to create a democratic governmental system, because ultimately the system would centralize, and become nothing more than the monarchy that the Americans had fought so hard against in order to gain independence.

The conclusion was that the United States must not be subject to the laws of men, be subjected to the rule of men, or open itself up to become an oligarchy by creating a system that enables too much power to be granted to a single person or governmental entity. Therefore, the new nation needed to be a nation subject to the laws of God, governed by the rule of law, and have a republican form of government that features a representative system of governance. The States, and the people, would need to hold sovereign power. The federal government would need to be limited to authorities only necessary for protecting, preserving and promoting the union. All other authorities, specifically those authorities that would address issues directly affecting the people, would need to the responsibilities of the States, and the local governments, where the people have more control over governmental functions.

To achieve their goal, the Founding Fathers determined that the components of this new federal government, as opposed to being a national government, would need to be one with three separate branches of government, whose powers are separated so that no collusion between the branches could be possible, with numerous checks and balances to ensure no part of government wields to much power, have a limitation of authorities to the federal government granted by the States, provide due process of the law with the right of a trial by jury, and be a system that ensures that the federal government does not betray the inalienable rights of the people of the United States.

To achieve this, the Founding Fathers argued and debated heavily for four months in 1787. The result was the U.S. Constitution, a document like no other. The American Form of Government, through its constitution, would serve as a protector of the fires of liberty by preserving the union of states, and ensuring that individual freedoms and state sovereignty maintain a voice in the system. The nation would prosper, to the surprise of the world, and maintain its system of limited government for more than 200 years.

Unfortunately, the original intention of the Founding Fathers has been whittled away by the creeping incrementalism of progressive thoughts and ideas. Those that oppose the American Form of Government wish to move our nation in a direction of a more centralized government, where the central authority wields great power, which ultimately results in a system that uses its power to rule over the people through the rule of man. The rule of law, under such a system, is then transferred to the courts, and law becomes determined by the opinions of a few powerful men.

Under a progressive system, the federal government does not limit its actions to the powers granted to it by the States. The federal government seizes its powers without ratification, claiming it is acting on behalf of the common good. Ultimately, under such a system, the United States Constitution will be disregarded as simply a set of guidelines that the federal government can choose whether or not to follow, and different groups in the population would begin to receive special privileges, or a classification as a protected class, which is not uniformly granted throughout the population.

We the People have the duty to ensure that our governmental system does not operate outside Constitutional boundaries. It is our duty to protect our God-given liberty, and restore our Constitutional Republic. That journey begins with understanding the original intention of the Founding Fathers, and educating ourselves and our posterity about the U.S. Constitution, and working to restore our government to the constitutional limitations our Founding Fathers intended.

The Preamble

The Preamble is an introduction, and holds no legal authority. As the opening paragraph of the United States Constitution, it 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, 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.

We the people of the United States - The people of the states that are united. . . do ordain and establish this Constitution. As with the many quotes by the Founding Fathers, the United States in this instance is there as a plural, not a nationalistic statement. The people in the states that united for the purpose of survival proposed the contract called the United States Constitution in order to create a federal government, grant to it limited authorities, and ensure that it remained limited so as to not infringe on the individual rights of the sovereign states, and the people who resided in those states.

As was customary of the founders, the reasons for forming the federal government are listed in order of importance: . . . 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. . .

The most important reason for the formation of the federal government, the main purpose of the U.S. Constitution, was “in Order to form a more perfect Union.” A union already existed under the Articles of Confederation, but it was too weak to protect itself. The founders wanted to form a more perfect union, one with more authorities, while remaining limited in its power and scope. As you read the Constitution, you will notice that all of the authorities granted to the federal government are limited to the union. The federal government is granted the authority to maintain an army and navy in order to protect the union from invasion, to collect taxes in order to pay for that military and the functions for preserving the union, to regulate commerce by acting as a mediator between the States so that the flow of commerce flows regularly in order to encourage a growing economy for the union, establish a uniform rule of naturalization for the purpose of ensuring the union grows through regulated immigration, to establish post offices so that the parts of the union can remain in contact, and so on and so forth.

The second reason for the creation of the federal government through the ratification of the U.S. Constitution was to “establish Justice.” Note that the word “establish” indicates that there was no justice prior to the writing of the founding document. However, we are well aware that justice did already exist in each of the States. Therefore, it is apparent that 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. Once again, language has provided for us a clue to the original intent of the Founding Fathers.

The first two reasons for the writing of the U.S. Constitution, according to the Preamble, was to form a more perfect union through the formation of a federal government, and to establish justice by creating a federal judicial system. Therefore, it seems reasonable to assume that the Constitution was not written for the States, but directly for the purpose of creating and limiting the newly formed federal government, which was designed to serve the states by protecting them, and preserving the union they enjoyed. You see, before the States delegated some of their own powers to the federal government through the Constitution, those powers belonged to the States. 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 then directed to the federal government, not to the States, unless specifically indicated to be so. This is because the States essentially “hired” the federal government to protect and preserve the union, and the contract that authorizes the federal government to do so is the Constitution. Therefore, it would be foolish to assume that the provisions of the Constitution are to be applied to the States as much as it is foolish to believe that a contract between you and a contractor to build an addition to your house requires “you” to use grade 8 bolts.

This also means that it is the States’ responsibility to ensure the federal government acts in a constitutional manner. That would mean that it is not the federal court system’s duty to do so. The power that the federal courts have to interpret the Constitution is called Judicial Review, and that authority was not granted to the federal courts by the Constitution. Therefore, Judicial Review is unconstitutional. More on that, however, when we go into Article III.

Back to the Preamble, we have to remember that the union was fragile. The States, as colonies, or as states, never got along too well. They had their own culture, 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 union at risk. Therefore, when it came to creating a more perfect union, it meant that the task of the federal government was to ensure the States got along, too. Hence, the reason for the Preamble also indicating that the Constitution was written to “insure domestic Tranquility” and to “promote the general welfare.”

What those two phrases meant was that because the States didn’t seem to get along too well, 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, make sure the squabbles did not place the welfare of the union in jeopardy.

If the founders meant for the federal government to create a nanny state of entitlement programs with the term “General Welfare,” not only would they have then created a system of that sort back then, but they would also have changed the wording to read “individual welfare.”

Tucked between “insure domestic Tranquility” and “promote the general Welfare” in the Preamble is the phrase: “provide for the common defence.” In other words, almost as important as ensuring peaceful cooperation between the States, and slightly more important than promoting the general Welfare of the republic, was the duty of the federal government to provide protection for the union through a military. Defending this nation helped in promoting the General Welfare, but was not listed at the beginning of the Preamble because a country that places too much importance on a military is doomed to become a police state. Dut defending this nation was not placed at the bottom of the list because a nation that refuses to defend itself ultimately becomes a conquered entity that is subject to the authority of a foreign government. However, one of the primary reasons for creating the federal government in the first place was to indeed protect the union militarily. That is why “provide for the common defence” is listed in the Preamble.

The final reason for the writing of the Constitution is to “secure the Blessings of Liberty to ourselves and our Posterity.”

Sometimes, when I ask somebody what the main reason the Constitution was written for was, more often than not the response will be: “To protect our rights, liberty, and property.”

That is actually an incorrect answer. Though protecting the rights, liberty, and property is among the reasons, they are not the main reason.

You see, 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 would need 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.

Understand, the Constitution does not give you rights. If government gave you your rights, then it would be reasonable to assume that the government could take them away. Therefore, your rights are “God-given.” The Constitution, in turn, protects your inalienable, God-given, rights by limiting the powers of the federal government.

So, because of the Constitution, the States and the people have all the rights, except those specifically delegated to the federal government by the Constitution.

Article I

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 Congress.

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.

The funny thing about the word “all” is that it means, as shocking as it may seem, “all.” This means that all authority in regards to making law, modifying law, repealing law (all legislative powers) and anything else that has to do with affecting law, belongs to the Congress of the United States. Therefore, any court cases that modify or strike down law, any executive order that modifies or creates law, or any regulation that is put into place without being proposed and voted into existence by the Congress, is unconstitutional. And, since the U.S. Constitution is the law of the land, that would make any court opinion, court ruling, executive order, executive action, or federal agency regulation that becomes law, modifies law, repeals law, or strikes down law an illegal action by that federal entity - making those pseudo laws illegal, unconstitutional, and null.

All legislative powers belong to the Congress. The powers are herein granted. Herein means, in the simplest way, “here in.” So, the word “herein” indicates that not only do all legislative powers belong to Congress, but that those powers are listed here in the U.S. Constitution.

Who gave the federal government those powers herein the Constitution? Apparently those powers were “granted” by someone.

Granted means “to transfer legally.” Therefore, the legislative branch does not receive authorities for the sake of it. The powers are granted by someone to the federal government. As indicated in the Preamble, “We The People of the United States” grant those powers to the federal government. That way, those powers may be “vested,” or legally transferred, to a Congress of the United States, which shall consist of two houses; a Senate, and a House of Representatives.

Article I, Section 2 defines the House of Representatives. The members of the House are divided among the States proportionally. The House of Representatives is the voice of the people in the federal government. Section 7 of Article I establishes that all bills for raising revenue shall originate in the House of Representatives. What that does is give the House the purse strings of the federal government, which in turn gives The People (remember, the House is the people’s voice in the federal government) the ability to stop anything they feel necessary to stop, by simply defunding it. The House also holds the sole power of impeachment.

Article I, Section 3 defines the U.S. Senate. Senators were originally appointed by the legislatures of the individual States. This was changed in 1913 through the 17th Amendment. Each State has equal suffrage in the Senate, meaning each state has the same amount of Senators, two each. The Vice President is introduced in this section as the President of the Senate, who may be involved in all proceedings if he so desires, but his vote only matters if there is a tie. The U.S. Senate was the voice of the States in the federal government.

Most everything the Executive Branch does is subject to the 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.

Both houses together also have the ability to override a veto with a 2/3 vote. This system was designed to enable the People and the States to constrain each other through their appropriate congressional houses, and to constrain the executive together through the power of a vote.

Article I, Section 4 establishes that each State may have its own methods for electing members of the Congress, and mandates, or requirements, and that Congress must meet at least once per year. Understanding this, it becomes clear that when the hanging chad controversy arose (Gore/Bush), the legal case should have only gone as high as the State Supreme Court. The federal government had no authority over that case, as per this section.

Article I, Section 5 indicates that Congress must have a minimum number of members present in order to meet, and if the Congress deems it necessary, may set fines for members who do not show up. Section 5 states that each house may have 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 recently used when Charles Rangel broke the rules of the House of Representatives, faced a panel for his actions, and was punished by censure.

Article I, Section 6 goes over 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. 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 - The position of Secretary of State received a pay raise while Hillary Clinton was in the Senate, so technically she was not eligible for the position when she was appointed. To fix this, the Democrats applied the Saxby 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 Saxby Fix, then, is defined as a Salary rollback; an unconstitutional action in my opinion.

Article I, Section 7 explains how bills become law. Any bill that raises taxes or fees must be proposed in the House of Representatives, giving "The People" the purse strings. All bills must pass both houses of Congress in the exact same form. When they are not the same, that is when a new vote for the bill must be established, or reconciliation is used, which still requires another vote. As the government had been established, the process allowed the people (House of Representatives) and the States (U.S. Senate) to both have the opportunity to approve the bill before it went to the Executive. If the bill is vetoed by the President, it can be overridden by a two-thirds majority by both houses. This allowed the People to constrain the States, the States to constrain the People, and for them to together constrain the federal government (Executive Branch).

Article I, Section 8 lists the authorities of Congress. Since Congress has the sole power to make law, this is also commonly referred to as the list of enumerated powers of the federal government. Note that all of the authorities have something to do with protecting, preserving or promoting the union.

Article I, Section 9 is a prohibitive section, placing limits on Congress.

Article I, Section 10 is a prohibitive section, placing limits on the States.

Article II

Article II establishes the Executive Branch.

Article II, Section 1 establishes the offices of President and Vice President. The election process is by the Electoral College. Originally the State Legislatures appointed the electors, but that was later changed in 1824 to a direct vote of the electors by the people (an attempt of those that support the progressive idea of a more centralized government to move this nation in the direction of a democracy). The change was technically unconstitutional because no amendment was proposed and ratified. Section 1 also requires the President to be a Natural Born Citizen of the United States, as well as establishing his compensation.

A Natural Born Citizen was one that was not only born in the United States (or a territory) and whose father was an American Citizen. Based on the language of the Immigration and Naturalization Act of 1798, a person born of two American parents overseas may also make a similar claim. The importance of the father being an American citizen when it came to being a natural born citizen was so that the President would not have divided loyalties.

Article II, Section 2 gives the President the power to be Commander in Chief of the armed forces, and of the militias of all the states, which means that he is able to wage war. The declaration of war, and the funding of war, is reserved to the Congress. The ability to wage war was an important power for the president, for due to the times, if the United States needed to mobilize its military rapidly, the President did not have to wait for all of the members of Congress to return to Washington to hold a vote. If, later, the Congress wished to Declare War, such a declaration would enable the United States military to more freely fight on the battlefield. A formal declaration warned other nations that a state of war existed, and that it was advisable to remain out of the zone. Without a declaration of war, if a non-participating party entered the war zone, any action against them would be considered an act of war. If Congress did not agree with the President waging war, they have the power to defund the war, hence providing a check against the executive branch from using its power to wage war without oversight, or without limitations.

Section 2 also states that the President may have a cabinet to assist him, but that the appointees must be through the advice and consent of Congress. He may make treaties with other nations, but the treaties must be ratified by the Senate. The President may also pick judges, and other members of government, but once again none of this can be done without the approval of the Senate. This is where the constitutionality of "czars" comes in question.

Article II, Section 3 establishes the duties of the President, such as giving a State of the Union Address, making suggestions to Congress, acting as head of state by receiving ambassadors and other heads of state, and ensuring that the laws of the United States are executed.

Article II, Section 4 explains impeachment.

As a result of the Constitution, our nation has prospered as a unique republic. In the words of George Washington, “The United States enjoy a scene of prosperity and tranquility under the new government that could hardly have been hoped for.” That is, if we can keep it.


Thank You to Faith Armory, 27498 Enterprise Circle West, #2 in Temecula, California, for the use of their classroom.

No comments:

Post a Comment