Wednesday, October 17, 2012

Thoughts on the Constitution (2)

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 to the Constitution declares both the purposes for which the document was written and the authority by which it was created. The new form of government is said to be authorized by We the People of the United States. These famous words have become so much a part of the American ethos that we can hardly imagine any patriot in the founding era raising an objection to them. The words, however, were objected to in the most strenuous terms by Patrick Henry, who argued that the authority to create a federal government rested with the states as states and not with the people of the states.

I would make this inquiry of those worthy characters who composed a part of the late federal Convention. I am sure they were fully impressed with the necessity of forming a great consolidated government, instead of a confederation. That this is a consolidated government is demonstrably clear; and the danger of such a government is, to my mind, very striking. I have the highest veneration for those gentlemen; but, sir, give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not agents of this compact, it must be one great, consolidated, national government, of the people of all the states.[1]

Henry argued that it was not the people who had sent the delegates to Philadelphia for the convention, but the states. The delegates were chosen by the state legislatures and were commissioned to act on behalf of the states, and not on behalf of the people. The people, he argued, “have no right to enter into leagues, alliances, or confederations: they are not the proper agents for this purpose:  States and sovereign powers are the only proper agents for this kind of government.”[2]
Henry feared the creation of a consolidated or national government as opposed to a federal government. A federal government is a government that unites states, whereas a national government is one that unites people. His concern was that a national government would effectively alter the nature of the republic by turning it into a democracy with the result that “the sovereignty of the states will be relinquished.”[3] In our day, when the individual states have become little more than administrative districts of the federal government, Henry’s words seem prophetic.
Henry’s objection is mentioned here, not as a mere historical curiosity, but as illustrating one of the chief concerns of those who opposed ratification—that a national government would overwhelm state governments and essentially reduce them to a nullity. The relationship between the individual states and the national government was an issue that continued to be problematic well into the following century.[4]
James Madison sought to allay the fears of men like Henry by explaining that what the Constitution created was a government that was partly national and partly federal. In The Federalist, Number 39, he argued that in the all-important matter of ratification, the Constitution was clearly on the side of federalism.

It appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State,—the authority of the people themselves. The act, therefore establishing the Constitution, will not be a national, but a federal act.[5]

Madison pointed to other provisions of the Constitution as well that had either national or federal characteristics. And some of them, he observed, had both. Congress, for instance, as he explained, had one chamber (the House of Representatives) that derived its powers from the people of America, and another chamber (the Senate) that derived its powers from the states.

“The people will be represented in the same proportion, and on the same principle, as they as they are in the legislature of a particular State. So far the government is national, not federal. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress.[6] So far the government is federal, not national.[7]

After giving several other examples of how the provisions of the Constitution partake of either the spirit of nationalism or federalism, he states, “The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both.”[8]
Henry was not convinced and argued for a bill of rights to be added to the Constitution “securing to the states and the people every right which was not conceded to the general government.”[9] The ninth and tenth amendments were put forward in order to alleviate the fear that the “general” government would deny the states of their rightful powers.
In the end, the wording, “We the People,” prevailed so that the Constitution is grounded in the authority of the people.

We said a few moments ago that the preamble declares both the purposes for which the Constitution was written and the authority by which it was created. As we have seen, the Constitution was created by the authority of the people of the United States as they acted in and through their state ratifying conventions. “We the People of the United States…do ordain and establish this Constitution for the United States of America.” We must now discuss the purposes for which the Constitution was created. There were six. The Constitution was ordained and established “in Order to”:

(1)    form a more perfect Union
(2)    establish justice
(3)    insure domestic Tranquility
(4)    provide for the common defence,
(5)    promote the general Welfare, and
(6)    secure the Blessings of Liberty to ourselves and our Posterity

The first purpose stated is to form a more perfect Union. The phrase recalls the Articles of Confederation which served as the governing document for the states from 1777 until the Constitution was implemented in March of 1789. The Articles of Confederation suffered from several weaknesses, among them:  (1) the Confederation did not have the power to enforce treaties with foreign nations; (2) it did not have the power to levy taxes; (3) it lacked a stable currency; (4) it had no power to regulate commerce; (5) it provided no courts to adjudicate grievances between states; and (6) it had no power to call out troops. These defects made for a rather weak union of states. The Articles of Confederation represented the relationship between the states as a “firm league of friendship with each other.”
The weaknesses of the Articles of Confederation were felt so keenly during the crisis of the War for Independence and its aftermath that a convention was called for for the purpose of revising the Articles and strengthening the powers of the Confederation. The convention met in Philadelphia from May 25 to September 17, 1787. The delegates soon decided that a simple revision of the Articles of Confederation was inadequate and that a whole new form of government was needed. The Constitution was thus put forward as a means to achieving “a more perfect union.”
The second purpose of the Constitution was to establish Justice. Establishing justice is the essential function of all government and contributes social order. Where justice cannot be obtained through the due process of law, injured parties often resort to violence as a means to right the wrongs done to them. This is true whether the parties to a dispute are individuals or states.
Under the Articles of Confederation each state had its own courts, but where there was a true union of states, there needed to be an additional court system that transcended the state courts. The first Chief Justice of the Supreme Court, John Jay, explains why:

Prior to the date of the constitution, the people had not any national tribunal, to which they could resort for justice; the distribution of justice was then confined to state judicatories, in whose institution and organization the people of the other states had no participation, and over whom they had not the least control. There was then no general court of appellate jurisdiction, by whom the errors of state courts, affecting either the nation at large, or the citizens of any other state, could be revised and corrected. Each state was obliged to acquiesce in the measure of justice, which another state might yield to her, or to her citizens; and that, even in cases where state considerations were not always favourable to the most exact measure. There was danger, that from this source animosities would in time result; and as the transition from animosities to hostilities was frequent in the history of independent states, a common tribunal for the termination of controversies became desirable, from motives both of justice and of policy.
Prior also to that period, the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations; and it was their interest as well as their duty to provide, that those laws should be respected and obeyed. In their national character and capacity, the United States were responsible to foreign nations for the conduct of each state, relative to the laws of nations, and the performance of treaties; and there the inexpediency of referring all such questions to state courts, and particularly to the courts of delinquent states became apparent. While all the states were bound to protect each, and the citizens of each, it was highly proper and reasonable, that they should be in a capacity, not only to cause justice to be done to each, and the citizens of each; but also to cause justice to be done by each, and the citizens of each; and that, not by violence and force, but in a stable, sedate, and regular course of judicial procedure.[10]

[1] The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, edited by Jonathan Elliot, 5 vols. (Philadelphia, PA:  Lippincott Company, 1891), vol. 3, p. 22. The debates are available to download for free at www,
[2] The Anti-Federalist Papers and the Constitutional Convention Debates, ed. Ralph Ketcham (New York, NY:  The Penguin Group, 1986), p. 207
[3] The Debates in the Several State Conventions, p. 44
[4] See Forrest McDonald, States’ Rights and the Union:  Imperium in Imperia, 1776-1876 (Lawrence, KS:  University of Kansas, 2000)
[5] Federalist No. 39
[6] He means the Congress as it existed under the Articles of Confederation, in which each state had equal representation. The members of Congress under the Articles were chosen by the state legislatures, which is what the Constitution originally required in the Senate. Prior to the passage of the 17th Amendment, Senators were not elected by the people of the states as they are today; they were chosen by the state legislature. Compare Art. I, Sec. 3 and Amendment XVII.
[7] Ibid.
[8] Madison concludes by saying, “In its foundation it [the Constitution] is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.”
[9] The Debates in the Several State Conventions, vol. 3, p. 150
[10] Cited in Joseph Story, Commentaries on the Constitution of the United States, par. 488, n. 2, originally published in 1833 (

Monday, October 15, 2012

Thoughts on the Constitution (1)

Introduction:  Strict versus Loose Construction

When the Constitution was signed by its framers on September 17, 1787 and sent to the states for ratification, it was intended that—upon the approval of at least nine states (Art. VII)—the document would become “the supreme law of the land” (Art. VI). The ninth state to ratify the Constitution was New Hampshire, which took its decisive vote on June 21, 1788, and the new federal government under the Constitution formally began the following Spring with the inauguration of George Washington as president.
The Constitution has served our country well for over 200 years, but like any form of government it is only as good as the men who administer it. The integrity of the Constitution depends entirely upon the integrity of those who are elected to hold office under it. It can only be an effective instrument of government if its officers are committed to abiding by its strictures. This is why officeholders in the federal government are required to take an oath that they will uphold the Constitution. The oath of office for the presidency is provided in Article II:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm)[1] that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” (Art. II. Sect. 1.8)

Article VI requires that all state and federal officeholders likewise take an oath to support the Constitution.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution. (Art. VI.3)

At the start of each new Congress,[2] all newly elected and re-elected members, which includes the entire House of Representatives and one-third of the Senate, must be sworn in. The specific wording of the oath is provided by Title 5 of the United States Code, and runs as follows:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.[3]

These oaths require familiarity with the contents of the Constitution and a strict adherence to its provisions. Elected officials, however, increasingly disregard the Constitution whenever it does not allow them to do what they want. How do they justify this disregard? With a legal theory that considers the Constitution to be a “living” document. According to this theory, the meaning of the words, phrases, and provisions of the Constitution is not static, not fixed, not unchangeable, but in a constant state of development—always in a direction that suits the tastes of the interpreter. In this way, other meanings, far different from what the framers intended, can be imported into the document.[4]
Woodrow Wilson may have been the first to have referred to the Constitution as a “living” document.

The theory has its roots in the “progressive” philosophy expounded by Woodrow Wilson in the years before he became president. Wilson criticized the Founders’ checks and balances as an unnecessary drag on the efficiency of government. In his landmark speech “What is Progress?” Wilson declared the Constitution to be a “living thing,” and he urged that it be interpreted according to “the Darwinian principle.” That is, the Constitution must evolve.[5]

The framers knew, of course, that they were not up to the task of producing a governing document that would never need to be changed, perfect for all ages. They knew it was not perfect when they fixed their names to it. This is why they provided a way for the Constitution to be amended (Art. V). The amendment process is the only lawful way to change the Constitution. To change it by a method of creative interpretation, reading into its words and phrases meanings that would never have occurred to its framers, is dishonest and lawless. The entire point of having a Constitution is to have a government of laws rather than a government of men. Nevertheless, the “living” Constitution view is the dominant view of jurists today. The approach is also referred to as the “dynamic” view of the Constitution and “loose constructionism.” Consider the position of two current Supreme Court justices:

Justice Stephen Breyer…has argued that the Supreme Court should be free to ignore the Constitution’s literal “text” whenever a majority of justices dislike the “consequences” of adhering to it. Justice Elena Kagan, in her confirmation hearings, made it clear that she would not vote to strike down a hypothetical law requiring Americans to eat their vegetables. In June 2012, Kagan would join the Court’s majority in holding that the government can force you to buy health insurance.[6]

The “living” or “dynamic” view of the Constitution stands opposed to the traditional approach, which has been called “originalism” and “strict constructionism.” According to this approach, the words, phrases, and provisions of the Constitution should be interpreted and applied according to its original meaning and intent. Adam Freedman explains the originalist approach very succinctly.

1.       The Constitution is the law.
2.       Like any law, it should be followed in both letter and spirit.
3.       If a particular provision of the Constitution is not clear, we should look to the meaning that its words would have conveyed to those who ratified it, and the people they represented. In other words, the main text of the Constitution should bear the meaning it had when it was ratified in 1787; the Bill of Rights, when it was ratified in 1791; the Fourteenth Amendment, when it was ratified in 1868, and so on.[7]

This is what the founders themselves understood to be the only safe and proper way to understand the Constitution. Thomas Jefferson made the point very clearly.

On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.[8]

James Madison, the Father of the Constitution, took the same view, and lamented in a letter to Henry Lee (June 25, 1824) that this principle of interpretation was not being strictly adhered to, even in his day.

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.[9]

Joseph Story, a Justice of the United States Supreme Court from 1811-1845, explained how every reasonable jurist until relatively recent times approached the interpretation of the Constitution.

It is to be interpreted, as all other solemn instruments are, by endeavoring to ascertain the true sense and meaning of all the terms; and we are neither to narrow them, nor to enlarge them, by straining them from their just and natural import, for the purpose of adding to, or diminishing its powers, or bending them to any favorite theory or dogma of party.[10]

To stray from a strict constructionist approach to the Constitution necessarily destroys its integrity as a governing document and goes so far as to undermine the very idea of the rule of law. As far back as 1799, Albert Gallatin, an important political figure in our founding era, explained the danger of loose construction very well when he said that our liberties “are only protected by a parchment—by words. They [our liberties] may be destroyed whenever it shall be admitted that the strict and common sense of words may be construed away.”[11]
It should be obvious that strict constructionism is the only honest way to read the Constitution, as it is the only honest way to read any written material. Suppose you had written a letter to a friend, and your friend misunderstood a statement you had made, and that as a consequence of the misunderstanding, he took offense and became angry. As soon as you learned the cause of your friend’s anger, you would attempt to clear up the misunderstanding by explaining your original intention. But suppose your friend insisted on ignoring your explanation and continued to attribute his own meaning to your words. You would soon find yourself alienated from a friend. As unfortunate as that would be, the danger of reading the Constitution while ignoring the original intention of the framers is far worse than losing a friend. We may well end up losing our liberties.
The truth is the Constitution is very nearly a dead letter. Lawless men have pulled off a bloodless coup by investing the Constitution with a meaning very different from what the framers intended. They have succeeded in pulling off what can only be called a second American revolution, far different in character and intent from the first. It is up to a new generation to recover the heritage of our Founders and so restore the original principles of the Constitution.

How do we discover the original meaning of the Constitution? By looking in several places:

1.       The debates that took place during the Constitutional Convention
2.     The debates that took place during the ratifying conventions held in each of the original states
3.       The Federalist Papers
4.       The Anti-Federalist Papers
5.       The Articles of Confederation
6.       The actions of the first Congress
7.       Early Supreme Court decisions
8.       The common law and legal textbooks of the period
9.      Dictionaries of the period (Samuel Johnson’s Dictionary of the English Language, 1755; Noah Webster’s American Dictionary of the English Language, 1828)

[1] The provision to substitute a simple affirmation for an oath was an accommodation made for Quakers who have a conscientious objection to swearing an oath. The objection is based on their interpretation of Matthew 5:33-37 and James 5:12.
[2] A new Congress is seated each January in every odd-numbered year.
[3] The United States Code is a compilation of the federal laws of the United States. It is published every six years. The current code is over 200,000 pages long. For the wording of the oath above, which is also to be taken by members of the armed services, see
[4] It is a commonplace in the interpretation of Scripture to distinguish between exegesis and eisegesis. Exegesis is bringing out of the text the meaning that is contained in it (from Gr. ejxh>ghsiv, to lead out). Eisegesis, on the other hand is to read into the text a meaning that is not contained in it (from Gr. eijsh>ghsiv, to lead in). Needless to say, exegesis is the only faithful way to interpret the Bible, and in fact the only honest way to read any text, including the Consitution.
[5] Adam Freedman, The Naked Constitution:  What the Founders Said and Why It Still Matters (New York, NY:  Broadside Books, 2012), p. 7. See also Jonah Goldberg, Liberal Fascism:  The Secret History of the American Left, From Mussolini to the Politics of Change (Broadway Books:  New York, NY, 2009), chapter 3, “Woodrow Wilson and the Birth of Liberal Fascism,” pp. 78-120
[6] Adam Freedman, The Naked Constitution, p. 4
[7] Ibid, p. 5
[10] Joseph Story, A Familiar Exposition of the Constitution of the United States (Lake Bluff, IL:  Regnery Gateway, Inc. [1840] 1986), p. 57.
[11] Adam Freedman, The Naked Constitution, p. 13