Since my chosen topic today is the U.S. Constitution, I thought I’d begin by first explaining just what, exactly, the Constitution was. I say “was,” because the Constitution today is in no way, shape, or form what it was intended to be.
With this presentation I also hope to dispel several misunderstandings associated with the Constitution. One of those misunderstandings, the notion that the Supreme Court is the final authority on the constitutionality of laws, will be dispelled by simply defining what the constitution originally was.
Let’s consider what James Madison, in his “Report on the Alien and Sedition Acts,” wrote concerning what, exactly, the constitution was: “The constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
So, you see, since the constitution was a compact between the individual states, creating the federal government or, as they called it, the General Government, the Supreme Court did NOT have the authority, any more so than did the other two branches of government, to issue the final opinion on the constitutionality of laws – only the states could have that authority.
And if you think about it, since the General Government was a CREATION of the Constitution, it follows that it is inferior to its authority, otherwise we’d have an institution that possesses the power to interpret the very document that created it!
And yet, that is what most people believe today.
Also, you might see that, in describing the individual states as sovereign, Madison and the rest of the people living back then viewed each state as its own nation, and the creation made by the constitution as a PLURAL arrangement. By that I mean that the title “United States” was PLURAL, such as THESE UNITED STATES, not THE United States. This distinction is important when we consider the major change that was made that turned our whole system upside down.
That change is the 14th Amendment. This amendment reads, in part that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside……”
So, according to this, in the terms that the Founders intended, if a person is a citizen of the United States, is he then a citizen of EVERY state? And if that be the case, what point is there in saying that a person is a citizen of the “United States” AND ALSO of the state in which he resides?
It seems to me that this amendment created a single entity called the “United States of America.” What’s more, the amendment goes on to state that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Thus, the 14th Amendment not only created a single entity called the “United States,” it gave that entity greater authority than the states had, even though the Constitution didn’t grant it the power to bestow “privileges and immunities” upon ANYONE.
This single amendment, in my opinion, is the one thing that has done the most damage to America. Irreparable damage, I might add.
Another consequence of this amendment is that, now people attempt to apply every article of the Constitution to the state and local governments, as well as private individuals.
A PERFECT example of this is the FIRST Amendment, which says that “CONGRESS shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press……etc.
Now, let’s consider Thomas Jefferson’s view on the First Amendment, as stated in his Kentucky Resolutions. Jefferson says that the states “retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated.”
He went on to point out that “libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals.” He states, right there, that the federal government has no authority whatsoever to interfere with the states’ handling of issues concerning religion and speech.
Since the 14th Amendment, however, we’ve seen federal courts strike down local obscenity laws, interfere with colleges that wish to restrict certain forms of objectionable behavior, and even forbid towns from setting up nativity scenes in their commons at Christmas time!
The original intent and structure of the Constitution even allowed the states to create their own official religion! Had it not, the Founders would not have thought it necessary to caution the states against doing so.
Another mistake made by previous generations has to do with another popular misunderstanding – the notion that DEMOCRACY is the highest form of government ever created for a nation.
I’d like to point out that democracy was first created by the Greeks, almost 2500 years ago, and was found to be a very difficult institution, concerning just the governance of the City of Athens.
Now, how many countries can you think of that have been democracies between the time the ancient Greeks in the City of Athens tried it, and today?
That should give you an idea of just how much of a bad idea democracy is, for a national government. In fact, it’s been so long since any country was foolish enough to try democracy as a form of national government that today, many Americans believe that democracy originated with US!
Nevertheless, that’s the popular belief today, and it has been the cause of two major changes in the methods we use to select our federal officials.
Let’s look at the way each state chooses its senators – by popular vote. EVERYONE thinks this is a GREAT idea! Certainly better than having the state legislatures select them, as was the case before the 17th Amendment.
But, let’s look at WHY it was set up that way.
During the original Constitutional debates, James Wilson, a rather unsung Founder from Pennsylvania, observed that “Despotism comes on mankind in different shapes, sometimes in an executive, sometimes in a military one. Is there no danger of a legislative despotism? Theory and practice both proclaim it. If the legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. In a single house there is no check, but the inadequate one, of the virtue and good sense of those who compose it.”
In Federalist 51, James Madison addressed the need for separate legislative bodies as follows, “In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.”
In his Notes on the State of Virginia, Thomas Jefferson complained about the arrangement of that state’s legislature, in part, as follows: “The senate is, by its constitution, too homogeneous with the house of delegates. Being chosen by the same electors, at the same time, and out of the same subjects, the choice falls of course on men of the same description. The purpose of establishing different houses of legislation is to introduce the influence of different interests or different principles.”
So, you see, U.S. Senators were to be appointed by their state’s legislature in order to break up the legislative power and create competing interests. With the arrangement we have today, as Thomas Jefferson observed, the same people basically control the makeup of both houses of the legislature. We may as well have only a single legislative body.
CHOOSING A PRESIDENT
Now let’s consider the manner in which we select a president, which has also fallen prey to the worship of “democracy.”
The Founders decided that the best way to select a President would be as follows: (Article II, Section 1) “Each State shall appoint,….. a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress;……” It goes on to say that each elector will cast two votes, one for president and one for vice president, and these votes would be sent to Congress to be counted, and whichever candidates achieved a majority of votes in either category will win the election for that office.
The intent of the Founders in this instance was for each state to choose a single group of electors, and trust these electors to make the choice of president and vice president on their behalf.
Now, let’s pretend for a moment that we still do it that way. Let’s say each state has chosen its group of electors. We have fifty groups. Current media campaigns last about two years. That is, 104 weeks.
What if, instead of candidates relying on the television as both a medium and a shield, each candidate for office had to spend two weeks in close contact with each state’s electors?
The weeks can be spent in many different ways. The candidate can give speeches, after which he’d be asked a lot of questions. The electors can take them fishing, camping, hunting, to auctions, play sports games to determine their character, whatever. During this entire two-week interaction the electors will be able to form a fairly good opinion of each candidate’s personality, character, and wisdom.
Also, whereas a candidate today ALWAYS avoids answering tough questions, and gets away with it, each candidate would know that were he to act in such a manner with these electors he would be immediately ejected from the process.
Such an arrangement would ensure that only serious candidates with character and wisdom would make it to the final stages of the process. Also, candidates would need only enough money to pay for travel, food, and lodging during their campaigns.
Of course, that method of selecting a president was deemed to be “undemocratic”, and so the system was changed (without an amendment to the Constitution, I might add).
The way it’s done today is that each political party that has candidates for president and vice president on the ballot chooses its OWN group of electors in each state, and whichever party’s candidates win the popular vote in that state sends its electors’ votes to Congress, making the selection of the president a function of the popular vote.
General Welfare
Madison, Federalist 41 – “It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and generator welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.”
He goes on to explain that the “general welfare” term, which is in the first paragraph of Article I, Section 8, is a relatively insignificant term, used only as a preface to the following SPECIFIC powers listed in that article. He also made the point that it would be rather silly to grant the congress such broad powers, as was supposed, and then list specific powers.
He made the same argument when he vetoed a bill proposing the construction of interstate roads and canals.
In responding to that same bill, Thomas Jefferson wrote “This assembly does further disavow and declare to be most false and unfounded, the doctrine that the compact, in authorizing its federal branch to “……provide for the common defenses and general welfare”, has given them thereby a power to do whatever THEY may think, or pretend, would promote the general welfare…”
All laws necessary and proper
In his report on the “Alien and Sedition Acts” James Madison addressed this as follows: “Whenever, therefore, a question arises concerning the constitutionality of a particular power; the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed; the next enquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised b Congress. If it be not, Congress cannot exercise it.