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

Published in: on November 29, 2020 at 10:11 pm  Leave a Comment  

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