What Are Our Constitutions?

By Brian K. Lutes

It is THE HARD TRUTH that most of the people I have met in my life, and especially most of our elected representatives at the local, state, and federal levels, do not truly understand what our constitutions are, why our founding fathers wrote them, or even what they say.

I was present for a conversation between a citizen and a County Commissioner in Pennsylvania several years ago in which the citizen was attempting to convince the Commissioner to propose a resolution in support of the 2nd Amendment. The Commissioner responded: “Oh, that’s that gun thing, that’s none of our business, call the NRA”. The Commissioner then walked away.

“That’s that gun thing, that’s none of our business…”? Are you kidding me? Unfortunately, it is not a joke and most people would be surprised to know just how often this is the case. Every elected official, and law enforcement officer, no matter the office, location, or political affiliation, prior to taking office, must put his hand on the bible and take an oath to “support, obey, and defend the Constitution of the USA and of the State of _____ from all enemies, foreign, and domestic”. Yet, most of them have never read or truly tried to understand what our most sacred documents represent.

In my opinion prior to taking the oath, elected officials and prospective law enforcement officers should be asked if they have ever read the constitutions and then be required to pass a test on the Bill of Rights. If they haven’t read the documents or can’t pass the test on the rights protected by them, they should not be sworn into office until they can do so.

In short, our Constitutions are the supreme laws with which all other laws must comply (140 F. Supp. 925)  Our courts have defined our constitutions in these terms:”A constitution represents a mandate to the various branches of government directly from the people acting in their sovereign capacity; the organic law framing a governmental system (229 A.2d 388, 394). And, the US Supreme Court, in one of the earliest cases to deal with the question of what power was the Constitution, Marbury v. Madison, 5 U.S. 137 (1803), said “If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply”. This cemented our Constitution as the Supreme law of the land.

And, In American law, the word Constitution specifically refers to a written instrument which is the basic source from which government derives its power, but under which governmental powers are constrained. It is the emphasis on restrictions of governmental powers that distinguishes the American concept. (Schwartz, Constitutional Law, Ch. 1, p. 1 (1979))  It is the supreme law of the land and it cannot be abrogated even in part by statute. Like the federal constitution, a state constitution is the supreme law within the state. (140 F. Supp. 925, 928)

The Federal government that was created with the adoption of the Constitution was delegated (delegation of power is not to be confused with surrender of power, which implies abandonment or a yielding of power to another (2 So. 2d 11, 16) and is from a superior to an inferior) very few and well defined powers laid out in Article 1, Section 8 of the Constitution of the United States.

Those that were in favor of adopting the Constitution and creating a more powerful Federal government thereby were called Federalists. They wrote a series of newspaper articles that have come to be known as The Federalist Papers stating the reasons they were in favor of adopting the proposed Constitution and the powers that the new government would have. The Federalists included, among many others, James Madison who is known as the Father of the Constitution, and Alexander Hamilton.

The people that were opposed to adopting the proposed Constitution were known as Anti-Federalists. They also wrote a series of newspaper articles that have come to be known as The Anti-Federalist Papers. They feared, rightly so, that the new government that would be created would eventually become tyrannical just like the King of England they had just escaped. They demanded that protections be written into the Constitution in an effort to guarantee that certain rights of the people could not be violated by the new government. The guarantees they demanded became known as The Bill of Rights, the first 10 amendments of the Constitution. One of the leading Anti-Federalists was Patrick Henry.

When the Anti-Federalists insisted upon the Bill of Rights, the Federalists said it was not necessary to protect rights such as freedom of the press, the right to bear arms, etc. since the new government would not be delegated any power to interfere with those rights as the new government would only be able to exercise the few powers specifically delegated to it and none that were not specifically delegated to it. Thankfully, the Anti-Federalists still insisted on the protections and were successful in having them adopted.

Let us be clear, James Madison, the father of the Constitution, wrote in the Federalist Papers that the new Federal government would only be able to exercise powers that were specifically delegated to it. And, as an added protection the 10th Amendment states: “ The powers not delegated to the United States (Federal government) by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” 

The US Supreme Court has held that the Amendment expresses the original framers’ intent that the “central” government be a government of limited powers and was included in the Bill of Rights to prevent the federal government from attempting to exercise powers that were not specifically delegated to it. (426 U.S. 833, 851) (Schwartz, Constitutional Law 2.2 (2d ed. 1979))

In short, this Amendment clearly shows that it was the intent of our Founding Fathers that the Federal government would not be able to do whatever it wanted. If the Congress wanted to carry out a particular task it would have to point to a specific clause in the Constitution that allowed it to carry out that task. If there were no authorizing clause in the Constitution, the task could not be undertaken by the Federal government.

It can’t be stressed too strongly that our Founding Fathers had just escaped a tyrannical King that, as a supreme ruler, was virtually unlimited in his power over their lives. They knew they had to have some form of government, but they were extremely fearful that the government they were creating might someday become just as tyrannical as the King was, so in an effort to prevent this new creation, the Federal government, from ever becoming a threat to the liberty of the American people they delegated very few and well defined powers to it, and then added very specific denials of power (The Bill of Rights) to it.

After our Founding Fathers came to agreement on the wording of the Constitution and the powers the new government would exercise, they submitted it to the individual States for their ratification (approval). The Constitution would apply to and bind together only those States that approved it. Any state that did not approve the Constitution would be bound to other non approving States by the old Articles of Confederation. If only one State refused to ratify the new Constitution that State would stand as an independent “nation state”.

In fact, North Carolina did not ratify the Constitution for well over a year after the other States had ratified the document and joined the “union”. During the time that North Carolina had not ratified the Constitution it stood independently until it decided for itself whether or not it would join her sister States in the union. If North Carolina had never approved the Constitution it would still stand as an independent nation state.

Basically, The Constitution of the United States is a voluntary compact, a contract if you will, between sovereign (self determining) States with each deciding for itself, to create a common agent, the Federal government, in which each State would have representation, to carry out very few powers that were laid out in writing for their mutual benefit. The best analogy I can think of to explain the way the relationship between the States and Federal government is supposed to be is this: Think of the States as individual families that share a common problem. Mostly they need a solution to security issues. Each family picks representatives that get together (the Continental Congress) to discuss possible solutions to the problem. The family representatives hammer out an agreement and take it back home to discuss it with the whole family. Each family raises questions about & objections to the proposed solutions and orders their representatives to meet again and the process continues. Finally, the representatives decide that the solution is to get a very tough dog (Federal government) for all the families to share. However, some of the families have members that are afraid of dogs so the representatives craft a very strong collar & chain (the Constitution) to restrain the dog so it cannot harass or injure any innocent family members, but is loose enough so that the dog can patrol the perimeter and chew up trespassers. Each representative then takes the collar & chain home for every family member to inspect and after the families agree that the collar & chain are strong, yet loose, enough, they attach it to the dog and set him about his assigned duties

The Role and Purpose of Law Enforcement in a Free Society

By Brian K. Lutes

It is very easy for law enforcement officers to lose sight of their purpose; with 6 years of experience as a police officer and Deputy PA State Constable I know this to be true. We often get caught in the vicious trap of trying to do all we can to get the bad guys off of the streets while at the same time trying to protect the good guys in a politically correct manner.

It is nearly impossible, but somehow we must get the job done, and we do.

It is not easy enforcing laws in a free society; it is not supposed to be. It would be much easier enforcing laws in a society where the citizens have, what some would call a healthy, fearful respect, of men with badges on their chests. A society where the citizens know that you don’t dare step out of line or the police will show up and make an example of you for all to see. And, if you want to work in that type of society you only need to move to China, Cuba, or any one of several Eastern European countries where law enforcement officers are feared and the citizens step aside when they approach.

In those societies police officers are looked upon as overseers making sure no one steps outside of the boxes their government masters have drawn for them. Making sure that citizens who express displeasure with those same government masters are taken away for ‘re-education’ before they corrupt their neighbors with crazy notions of freedom of speech and assembly.

However, we can thank God, and our Founding Fathers, that we do not live in such a country; at least not yet, and a key determining factor in whether or not we ever will, falls on the shoulders of us, the law enforcers.

We are the individuals that are on the street, among the people, our neighbors and families, applying the rules of civil society as laid down by our fellow employees of the people, legislators. And it is us that decides whether or not to write the ticket or make the arrest for whatever violation of law we observe or discover; It is our discretion (The reasonable exercise of a power or right to act in an official capacity; involves the idea of choice, of an exercise of the will, 94 N.W. 2d 810, 811).

Our #1 job while serving our fellow citizens is to live up to our Oath of Office to “Support, Obey and Defend the Constitution of the state in which we serve and the Constitution of the United States of America against all enemies, foreign AND DOMESTIC; and that I will bear true faith and allegiance to the same… and I do further solemnly swear 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 law enforcement officer with fidelity”. We have all taken this oath, or something very similar to it, before we ever pinned that precious badge on our chests. But, how many of us ever really thought about and realized the significance of that oath we so willingly took? I fear not enough of us have.

When we take the oath of office we swear before God that we will, above all else, support, obey, and defend our Constitutions, state and federal. We do not swear to get the bad guy at all costs. We do not swear to be creative, without technically lying, in our report writing to get the warrant (This amounts to “False Swearing which our courts have defined as a “willful and corrupt sworn statement made without sincere belief in its truthfulness” See Perkins & Boyce, Criminal Law 511 (3d ed. 1982)). We swear an oath to uphold our Constitutions and the protections of American freedom therein.

The Constitutions we have all sworn to uphold are the very foundation of our uniquely American lives. Our Constitutions are the only thing standing between our way of life and the subservient lives of Cubans or the Chinese. Every time our Constitutions are violated, be it by Legislators, Judges, or Executive Branch Agents, our American way of life suffers. It especially suffers when it is violated by those of us that have sworn to uphold it.

Our purpose as law enforcement officers, every time we put that badge on, is to go out and preserve our uniquely American way of life by enforcing, or not enforcing, our laws in accord with our oaths to our Constitutions.

We, I say we because those of us who are charged with enforcing the laws are subject to those same laws, as Americans, have a right to “Life, Liberty, and the Pursuit of Happiness” and when those rights are violated by someone who murders, steals, assaults, or kidnaps one of our fellow citizens we show up and take action living up to our oaths by arresting the offending individual, depriving them of their liberty, pursuit of happiness, and possibly their life, for violating the rights of the victim(s); we do not technically arrest the offending individual for killing the victim, but for violating the victim’s right to life.

We also, as a result of our oaths to support, obey, and defend the Constitutions, have a responsibility to not enforce, by exercising our prosecutorial discretion (which our courts have defined as “The wide range of alternatives available to a prosecutor in criminal cases, including the decision to prosecute, the particular charges to be brought, etc… or not to prosecute (see Lafave, Arrest 72 (1965)), laws passed by the legislatures that violate our Constitutions (consider this: “The general rule is that an unconstitutional statute, whether federal or state, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. No one is bound to obey an unconstitutional law and no courts are bound to enforce it” (16th American Jurisprudence, 256, 2nd edition).

For example, say the town council adopts an ordinance, which our courts have defined as “A local law that applies to persons and things subject to the local jurisdiction” (see 90 F. 2d 175, 177) that says no one in the town is allowed to possess a gun for any reason and that law is put on the books in the town. We as law enforcement officers have an obligation to refuse to enforce that law because it is in violation of the 2nd Amendment of the U.S. Constitution, “…The right of the people to keep & bear arms shall not be infringed” and Article 1 Section 21 of the Constitution of the Commonwealth of PA “The right of the citizens to bear arms in defense of themselves and the state shall not be questioned” that we took an oath to support, obey, and defend.