FIRST – THE PHILOSOPHICAL FOUNDATION IN PRINCIPLE, and ADMINISTRATIVE FOUNDATION IN FORM
The philosophical basis of all good government, not just the U.S. Constitution (and not just the Constitutions of the several States), is found in the principles espoused by the Declaration of Independence. Those principles are the answers to the questions of “Why” and “What” as far as government is concerned (Why governments exist, and what their sole proper purposes and functions are) – the U.S. Constitution was an imperfect attempt at answering the “How”. The U.S. Constitution was an attempt at creating a governmental system in harmony with the principles of the Declaration. For a thorough understanding of the principles of good government, which then, in turn, applies to the U.S. Constitution – it is recommended to read the document.
Here are three versions of the document, all worthy of study:
For those who may still be unclear as to the concept of unalienable rights, this article is recommended.
In terms of the absolute principle, or principles that are not subject to arbitrary standards of determination, the Declaration of Independence is comparable to Isaac Newton’s Principia. Through the sea of relatives, the author of the Declaration found a few universals upon which to base a truly free society upon – and they are principles that are “self-evident” (or “sacred and undeniable” in the words of Thomas Jefferson) to those who outwardly observe and inwardly contemplate their attributes. They are True, and perfectio, or complete.
The doctrine of the Declaration of Independence is the standard by which we should judge the quality of a societal structure, as well as by individual actions done within the context of that system itself.
In terms of the U.S. Constitution, or the Constitutions of the several states, keep in mind that Thomas Jefferson even stated in a letter to Henry Lee in 1825, that the Declaration was “intended to be an expression of the American mind.” So, not only is the Declaration a good universal standard, but it was also seen as the standard in the relative view of most of Americans, as perceived by the Congress itself. Yet, even though that is certainly not the case today as far as the relative standards of many Americans, the truth of the absolute principles of Rights and Duties is not affected by how anyone views the topic – just as the the law of gravity, or the laws of motion are not affected by popular opinion. Truth, in the end, is it’s own authority, and is not affected by how anyone feels about it.
In terms of the form of government, it must be remembered that, in the words of Samuel Adams, “it must be confessed, that Imperfection attends all human affairs.” (Letter to Noah Webster, Apr. 30 1784) And, from a perspective of principle, the question of forms automatically becomes secondary. At the end of the day, whether the form of government is monarchical, aristocratic, democratic, or even “anarchistic” – the questions are:
1) What is the appropriate form of government by which fundamental unalienable rights are to be protected?
2) Is the Freedom (or Are the Rights) of the People more or less likely to be protected as a result of the system?
The answers to these questions should include not only analysis as to the present (or, “for ourselves” in the words of the Preamble of the U.S. Constitution), but also with an eye toward the future (or, “for posterity“).
So, the protection of rights can come through any sort of system – even a monarchy. But obviously, the downfall of having a single ruler as the form of government (even assuming this leader not only cares about the people, but understands his proper role in relation to them in a governmental capacity) is that this form will only last as long as that ruler’s dedication, be as good as his personal understanding is correct and is actually applied, and will obviously be limited by the length of his mortal body’s life. And, if extended to his children, or even any sort of heir – the same argument would apply.
That being said – What kind of a social structure will last longer and be more stable – both in harmony with any true principles upon which it was founded, as well as in duration of time?
The real answer to these types of questions require an analysis akin to that attributed to the realm of the economist.There must be rigorous analysis of the incentive structures which are antecedent to, a part of, and also come as a result of the social structure. As one example may show, the analysis of the various governmental positions should include the assumption of self-interest in the persons of power to analyze whether or not the tendency toward tyranny would more likely come due to poor design of the system itself.
There must also be a cost-benefit analysis of the structure, as well as it’s results. We, obviously, desire a situation in which the general benefits outweigh the general costs. (Not to be confused with the idea of some benefiting at the expense of others). The system should be efficient enough to adequately fulfill it’s purpose – without being so efficient that the rights that are supposed to be protected are actually infringed upon with impunity, and at the whims of the passion of any particular faction, without the ability for recourse or without the firm foundation upon which a sound corrective is able to take place, as a feature of the system.
Interestingly enough, and to partially reiterate a crucial point: The Declaration of Independence does not prescribe any particular form, merely the standard by which any form should be judged.
Thus, the founders looked to history and historical commentaries, such as those by Polybius and Machiavelli, to learn as to the best and most lasting forms of government. And in this research they found that in the pure and/or simple forms of government (pure monarchy – rule by one, aristocracy – rule by a few, and democracy – rule by the many) – they always descended into the corrupted versions of these. Thus,
Monarchy inevitably descended into Tyranny.
Aristocracy inevitably descended into Oligarchy.
Democracy inevitably descended into Mobocracy/Ochlocracy (or what Machiavelli termed “licentiousness”.)
And in fact, Machiavelli asserts the fact that these three will turn into a cycle of their pure forms due to the inherent instability (due to incentive structure) that each form has within itself. Tyranny turning into Oligarchy, and Oligarchy leading to a Democracy, whose anarchic features will lead back to the populace uniting behind a tyrant.
“I say, then,” writes Machiavelli, “that all kinds of government are defective; those three which we have qualified as good because they are short-lived, and the three bad ones because of their inherent viciousness. ” Then Machiavelli states the main assertion of this analysis in stating that: “Thus sagacious legislators [meaning those with good judgement and keen discernment], knowing the vices of each of these systems of government by themselves, have chose one that should partake of all of them, judging that to be the most stable and solid.”
Machiavelli then concludes: “In fact, when there is combined under the same constitution a prince, the nobility, and the power of the people, then these three powers will watch and keep each other reciprocally in check.” (Discourses, Chapter Two). In the words of Gary Wills, “the innate biases can become mutually correcting.” (Explaining America, pg. 99) As evidence of this, Machiavelli speaks of the Tribunes in the Roman system which were basically a democratic corrective against what had become a systemic abuse of power by the oligarchical Senate, which rendered the system closer to what is “most essential to liberty“.
In terms of social structures, this history demonstrates the three major tendencies and societal trends. Thus, the goal – in terms of the goals/views of the framers of the various Constitutions of the american nations – was to build these trends, or to build these tendencies into the form of the governments themselves.
This was an ontological approach to the creation of a social structure – or in other words, it was built on what man generally is in this world (of course, assuming the best, yet prepared for the worst), not upon what some philosopher thinks man should or could be. It didn’t view the social structure as a means of forcing, or “encouraging” a particularized moral standard based on the desires of some tyrant, or group of tyrants to, through immoral means, force that so-called “moral” code, outside of the protection of the freedom of the people. Rather, it was built upon the protection freedom, or of unalienable rights, in and of themselves, as well as upon what the trends of societies have typically been in regards to the ability to adequately protect those rights and freedoms. In other words, if a social structure, made up of humans, is to endure – it must be based on human tendency and human nature itself – thus, the universal desire for freedom, as well as the historical trends in regard to that goal must be taken into consideration. It was thought that only then would a social structure last, as well as being able to not only self-correct, but to deal with disputes peacefully – without the need to resort to violent means of political action.
John Adams took this history and these ideas and this is clearly demonstrated in the Constitution of the Commonwealth of Massachusetts, drafted in 1780, of which he was the primary author. This Constitution, with three branches of government – including a more independent judiciary, was the model for the U.S. Constitution which would be drafted seven years later. In the Constitution of Massachusetts, you find that:
The Monarchical principle was built into the Executive Branch, or the Governor.
The Artistocratic principle was built into the Judicial Branch, or the court system (including the supreme judicial court).
The Democratic principle was built into the Legislative Branch, or the bi-cameral General Court.
This is found in the U.S. Constitution with similar features, where you find that:
The Monarchical principle was built into the office of President.
The Aristocratic principle was built into the Courts (including the Supreme Court) and the Senate (as originally elected by the legislatures of the several states – with the basis of this being partially rested upon the fact that this was a federal constitution, consisting of several States, or nations, and not merely organic law for any particular nation. Thus, those particular State governments should have a direct say in many matters pertaining to the legislative power).
The Democratic principle was built into the House of Representatives.
As far as the effects, whether good or bad, by the system – or perhaps, more accurately, those that pretend to operate within it, the question still remains:
Is the Freedom (or Are the Rights) of the People more or less likely to be protected as a result of the system? Or, rather, after 225 years of history – Have the Freedom and Rights of the people been more or less protected as a result of this system?
At this point, the debate – once understood in terms of the doctrine of the Declaration of Independence – should begin.
That assertion, far from being one that is demeaning to the work of the founders, would be in honor of it. There was even a quote (of dubious origin, of which a specific source is unknown to this author at this time) that is often attributed to George Washington (or perhaps Gouverneur Morris) stated that: “Let us raise a standard to which the wise and honest can repair.” Yet, of course, for “repair” to be actually productive, and not destructive, we must seek knowledge, and inspiration from the same source – and perhaps one day, a more, or even a completely free society will be a reality, at least, for some.
For those who see this as an impossibility, it should be remembered that there is a clear line of demarcation between difficult and impossible. As J. Stuart Snelson clearly argued, if flying in the sky was universally held to be impossible at the beginning of the last century, there would never have been innovations, such as the airplane. Perhaps there were many who considered the idea of the airplane as “utopian”. Yet, for an idea to be truly “utopian” (utopos, GR for “no where” or “noplace”) – there would necessarily have to be inviolable natural laws which prevent the innovation from being a possibility; A possibility not as some perceive it, but as reality dictates. And just as the innovating of the airplane was not easy – so will the creation of a truly free society, but that is far from concluding it an impossibility.
In conclusion, and in response to those who see a free society as a “utopian” ideal, my question is this, is there even one exception to the assertion that “every person lives in pursuit of happiness“?!
And since every person does, in fact, seek the attainment of this goal –what natural law would have to be violated to attain a societal structure that merely respects that universal desire for freedom that is found as a part of every individual that makes up society? In other words, What law of nature would have to be violated in order to create a system that is simply in harmony with the order of nature and the cosmos itself?
The fact of the matter is this: A truly free society will be difficult to achieve, but it is possible.
SECOND – WHAT IS A CONSTITUTION?
The very word “constitute”, as often defined as “to set; to fix; to enact; to establish“, or even “to form or compose; to give a formal existence to; to make a thing what it is” should give a very fitting hint as the nature of a Constitution, in regards to it’s function and relationship to society. (1828 Noah Webster Dictionary)
“Constitutio” in Latin means “Decree” – and in the Roman System, that is exactly what it was; the constitutiones included, but were not limited to, the imperial decrees and edicts of the Emperors during the later period of Roman history. The decrees/edicts were one of the ways in which statute was created in the Roman system. (Law and Life of Rome by J.A. Crook, pp. 18-29, Introduction to Roman Legal and Constitutional History by William Kunkel, pp. 125-131)
In the British System, the Constitution was unwritten and was based on customs and “tradition”, and was thus a very flexible constitution, defined by parliamentary statute and/or regal precedent. In this system the Constitution was merely the sum of current precedent – based on a sort of system-wide principle of stare decisis (Latin for “to stand by things decided”), that could be molded by even the parliament itself through the mere passage of statute. It was essentially a “collection of historical documents, statutes, decrees, conventions, traditions, and royal prerogatives”. (Black’s Law Dictionary, 9th Ed. – term “unwritten constitution”)
In fact, disputes about the, at least, marginally “vague” British Constitution (a conclusion based on an attempted panoramic view of both sides of the conflict thinking their view as absolutely correct), not only led to the Founders’ determination to have written constitutions, but also largely led to the American War for Independence in the first place. The war was largely based upon a conflict over the shape, nature and limits of the British Constitution. (see The Constitutional Origins of the American Revolution, by Jack P. Greene)
The Constitutional nature of the conflict over American Independence is more clearly seen in a reading of the John Adam’s Rough Draft (or perhaps, copy) of the Declaration of Independence, which addresses the topic more directly than the final and approved draft of the document, as found in the section on grievances. (see here)
Black’s Law Dictionary (9th Ed.) defines Constitution as: “The fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties.”
The term organic law implies the fact that it defines and establishes the government, and is, therefore, superior to any statutes, rulings, or executive actions that occur within the system. Often the term “legislative supremacy” is misplaced in reference to statutes passed by the legislatures of the states or to the Congress – when, in fact, the Constitutions of the several states were seen as supreme legislative acts from the people (upon whose authority and power any government’s actions are based), and in terms of the United States Constitution – the people, indirectly, via the States.
The Noah Webster 1828 Dictionary defines Constitution in part as: “The established form of government in a state, kingdom or country; A system of fundamental rules, principles and ordinances for the government of a state or nation.” In fact, the dictionary entry includes the line: “In free states, the constitution is paramount to the statutes and laws enacted by the legislature, limiting and controlling it’s power; and in the United States, the legislature is created, and its powers designated, by the constitution.”
The Swiss legal theorist, Emer de Vattel, defines Constitution in his 1758 work The Law of Nations (Droit des gens), as: “The fundamental regulation that determines the manner in which the public authority is to be executed..constitution(s) [are] in fact nothing more than the establishment of the order in which a nation proposes to labor in common for obtaining those advantages with a view to which the political society was established.” Thus, in terms of the United States Constitution, it is the fundamental regulation of the federal government created under and by it’s adoption by the States.
In fact, as a written constitution with a high barrier for amendment (as found in Article 5; which include consent of 3/4 of the state legislatures, or through another constitutional convention), the U.S. Constitution is a rigid constitution, not merely and fully based on custom, and which “cannot be altered by ordinary forms of legislation, only by special amending features“. (Black’s Law Dictionary, 9th Ed. – “rigid constitution”) The written nature of the Constitution was also for more precision in the proper nature of the limits to offices created under the document – since the intent is for it to be known, not just those operating in the various offices themselves, but by the people at large.
Before concluding the article, one point should be stated in relation to all constitutions, including the U.S. Constitution. Ultimately, the quality of the Constitution will be determined by how closely it, and the system it creates, is aligned with the principles of the Declaration – or, more specifically, “the Laws of Nature and of Nature’s God”. Even Constitutions, though termed a fundamental regulation in relation to the system created by and through it, should be seen as inferior to Natural Law – the ultimate Fundamental Regulation (and should be treated as such).
This can be clearly seen even within the U.S. Constitution, where some of the more serious defects are defects as such by simply not being in harmony with the true principles behind the Declaration (such as the 3/5 compromise, the fugitive slave clause, etc.) Another way of putting this may be: Natural Law is what ultimately rules and reigns, and a Constitution is only worthy of the label “fundamental” in so far as it is in harmony with what truly is fundamental to nature and the cosmos. Just as statute is only as valid as far as it is in harmony with the Constitution, the Constitution itself is only as valid as it, and/or the system allegedly operating underneath it, is in harmony with Natural Law.
In conclusion, written constitutions are merely pieces of paper if the people, both within and without the State, do not give it meaning and respect it as the organic law of the system itself. Often, state mechanisms attract people who would rather abuse power than respect and act within the extended/delegated items of authority which are found in the Constitutions themselves – and even far more often, this is merely a symptom of a populace which encourages the same.
THIRD – WHAT IS THE CONSTITUTION OF THE UNITED STATES?
The Constitution of the United States is a Federal Compact.
The Constitution of the United States was not instrumental creating anational government, and it is not a contract. These points will be argued in more detail underneath three basic points that are found below.
1. Contract vs. Compact
The Constitution of the United States is not a contract. A true contract is always based on the explicit understanding of both parties, both of which agree to certain acquired rights and duties (or privileges and obligations) as found in the contract itself (whether written or unwritten). This is why contracts are justifiably enforceable, even by a civil government – since there are harmed parties deserving of reparation when a lawful contract is violated by one of the parties to it.
The US Constitution does not bear all of the features that are required for the accurate use of the term “contract”. Where is the meeting of the minds of all the applicable parties? In fact, where is even the legal (as distinguishable from lawful) enforce-ability except as found within the system it, itself, was the instrument of creation? Are the people of the united States parties, and if so – when did they, individually, explicitly agree to the terms? Could you, as an individual, obligate your neighbor to a set of terms you wrote, or someone you elected wrote – let alone men who wrote it 227 years ago? When did you, or I, sign this contract of “ours”?
In fact, as I argue elsewhere – the Constitution of the United States doesn’t even have signers in the full sense of the term, but witnesses (see here). The delegates could not presume authority to sign on behalf of another – let alone for entire nations of people, any more than you, as an individual, could obligate your neighbor to the same. The delegates of the convention had no right or authority to create a government except as would effect them personally – and therefore, it was up to the people of the individual states to manifest some sort of consent for the document in order for it to become applicable.
The US Constitution is a compact. The Constitutions, far from being based on some form of enforce-ability, are based on voluntary cooperation. A compact simply espouse the basis on which a group of entities have determined to cooperate with each other. And since there is no contractual enforce-ability, it will only last as long as the people have it in mind. Even the preamble to the Constitution of the Commonwealth of Massachusetts, which was the model for the United States Constitution, recognizes this fact in stating, in part, that: “The body politic is formed by avoluntary association of individuals; it is a social compact…“.
2. Federal vs. National
The Constitution of the United States created a federal government, not a national one. The states are not the equivalent of counties to a consolidated state housed in D.C. – but rather retained the place that they had had even under the Articles of Confederation (the first federal Constitution of the american states).
Article Two of the Articles of Confederation states that: “Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” In fact, the preamble of the Articles, in the spirit of federalism did not begin with “We, the People” – but rather began with “We” and then subsequently listed all of the participating States.
The spirit behind that provision was not repealed by the U.S. Constitution, but as is seen in the state ratifying conventions – was still a basis for the new federal Constitution. In fact, in an attempt to ensure that this was not forgotten or ignored – the understanding was formalized in the Tenth Amendment of the US Constitution, which states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people“.
It should be understood that the Tenth Amendment did not introduce federalism into the Constitution, but was merely a formality, if you will – a reinforcement of what was understood as a crucial feature already implicitlypresent (as was the entirety of the Bill of Rights). In a similar fashion, Patrick Henry – following his reading of the Bill of Rights, or first ten amendments to the United States Constitution, became furious at the failure to include an explicit recognition (notice that an implicit recognition was still assumed) of state sovereignty. Henry stated that:
“I wrote the first of those amendments in these words…’Each state in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Federal Government.’ But they have omitted it…and changed it into this equivocal thing…’or to the people.’ My sons, this Constitution cannot last. It will not last a century. We can only get rid of it by a most violent and bloody struggle.” (source: here)
The Latin term foedus, from which we derive the word federal, means “covenant, league, treaty, alliance”. Later on, it even specifically came to indicate “a state formed by agreement among independent states“.
This understanding is even found in an analysis of the Constitutions of America. Article Six of the Utah Constitution creates a legislature, while Article One of the United States Constitution creates a Congress. The difference is crucial to a correct understanding of federalism. A Legislature is a legislative body within a nation (in this case, Utah), while a Congress is a meeting of separate nations.
Examples of this are abundant. In 1765, there was the Stamp Act Congress – where nine of the Colonies sent ambassadors (or “embassadors”, as Noah Webster would prefer ) to meet together to discuss how to respond to the tyrannical Stamp Act. This understanding continued into the First and Second Continental Congress’s – both of which had delegates from independent governing bodies in the colonies – which, post-Declaration of Independence, became “Free and Independent States”.
Even further back in history there are many other examples; In ancient Greece there was the Congress at Corinth. The Congress of Westphalia followed the 30 yrs. war in Europe, and the Congress of Vienna which similarly followed the Napoleonic Wars. And to name just one more example, even the Congress of Panama was when the central american nations met to determine a unified policy in relation to Spain. All of these involve the meeting of separate nations – not an unlimited (or even semi-limited) legislative body over all of the participating nation-states.
Emer de Vattel, in Law of Nations, states that “Several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: Their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill engagements which he has voluntarily contracted.” (pg. 84)
The enormous difference between nationalism and federalism is even demonstrated with an analysis of the Constitutional Convention of 1787 itself. Although the Convention was supposed to simply be about forming amendments to the Articles of Confederation, there was a clique of people (James Wilson, Alexander Hamilton, and even James Madison included) who did not only desire a change to the Articles, but to propose and form a newly centralized national government. Even the Virginia Plan (formally proposed by Edmund Randolph) called for a “national” government. Yet, ultimately, the main provisions of the Virginia Plan that were nationalist and general (nearly unlimited) in feature were all voted down, in favor for a document that was federal and limiting in nature. (see James Madison and the Making of America, by Kevin Gutzman, pp. 49-131)
The federalist impulse was clear even in the state ratifying conventions, where the state convention members who were very critical of the newly proposed Constitution were, without exception, assured that it was a federal document, limiting in feature. Even James Madison, the nationalist himself at the Constitutional Convention of 1787, championed federalism in The Federalist No. 39 – which was written in an attempt to gain popular support of ratification of the US Constitution in the state of New York. Keeping in mind that this essay is one that is attempting to sell the product, if you will, of the US Constitution; it is very revealing that in it, Madison even goes as far as to say that: “The act, therefore, establishing the Constitution, will not be a national, but a federal act.”
In reaction to the Alien and Sedition Acts of 1787 and it’s more tyrannical features in relation to free speech and the press, James Madison anonymously authored The Virginia Resolutions of 1798 (a standard of the concept of state Nullification, or state refusal to either allow specific federal statute to apply and be enforced within it’s jurisdiction, or to participate in its enforcement of the same), which stated that the states were “duty bound” to oppose any federal overreach.
In the resolutions, Madison not only made arguments that the Sedition Acts violated the first amendment (an argument “intra-state” if you were to assume a national government) but also that it violated the federal structure itself. In other words, he stated that the loose interpretation of the US Constitution which would be necessary to constitutionally justify the Alien and Sedition Acts were not only the wrong interpretation – but that the result of which would, essentially, “consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United States into an absolute, or, at best, mixed monarchy.”
Notice that the consolidation of the states was viewed as a negative! And, likewise, please notice the function of the word “transform”, which obviously indicates that this consolidation would fundamentally change the Union as it was, and even how it was perceived early on in the history of the united States.
3. The Declaration of Independence vs. The Gettysburg Address
Whereas the Declaration of Independence obviously enshrines the federal government as being composed of “Free and Independent States”, each uniting based on voluntary cooperation based on the good of all participating parties – President Abraham Lincoln and the radical Republicans championed a much different view. In The Gettysburg Address, a speech that is often even memorized by children attending school, Lincoln asserts (without even going through the effort of arguing with anything other than the sword!) that the founders brought forth “a new nation” (singular). This hollow and usurpatious assertion was, at it’s heart, basically a fait accompli. Though subtle, the implications are enormous – and they strike at the heart of the debate surrounding the entire basis and structure of the Union – which, in turn, distracts from the even deeper issues of purpose.
Lincoln and the Republicans had to justify their bloody and unnecessary war against the southern states with the philosophy of nationalism. Instead of respecting the sovereignty of the “Free and Independent” southern states right to secede, and cease associating with the union – Lincoln resorted to bloodshed, in order to enforce a document which had as it’s foundation the principle of volunteerism. As with all tyrants and usurpers throughout history, the tyrant must create a narrative (as poor as it may be) to cover-up the reality of their violent and unjustifiable means to their own pet end.
Is it any wonder, given the federal nature of the US Constitution, thatTreason is even defined as “levying war against them” (them, meaning the States), or in “adhering to their enemies“?
Even the term civil war is misapplied to the american conflict of 1861-1865. A civil war is a war within a nation – and, in fact, during this same time period there was what could accurately be termed “civil war” in Missouri over the question of whether or not they should stay in the Union or join the Confederacy. Yet, that is not what occurred between the Union and the Confederacy – and thus, it would be more properly termed the War Among the States.
Ultimately, the U.S. Constitution was an international document, aninternational agreement – and the so-called “civil war” was clearly a violation of the underlying premise behind the ability of nations to voluntarily cooperate.
The U.S. Constitution has a term within it (found in Article One, Section Eight) that is too often overlooked: the Law of Nations. The 1828 Noah Webster Dictionary defines the term “Laws of Nations“, in part, as: “the rules that regulate the mutual intercourse of nations or states. These rules depend on natural law, or the principles of justice which spring from the social state...”.
Emer de Vattel seems to agree with this definition, in the Law of Nations, when he states both a similar definition and that: “There certainly exists a natural law of nations, since the obligations of the law of nature are no less binding on states, on men united in political society, than on individuals…Hence it follows that the natural law of nations is a particular science, consisting in a just and rational application of the law of nature to the affairs and conduct of nations or sovereigns.” (see preface, and pg. 67)
In a tragic sense of irony, the Federal Government that is supposed to act in harmony with this implicit form of international law (with the Congress even being supposed to define the punishments of the violations thereof), is often one of the worst violators. All too often, they not only are rejecting the bases and terms of the federal compact which was instrumental in it’s very creation (a Constitution based on the law of nations, itself, as it applies between the States), but even violate the basic understanding that legitimategovernment actions/agreements are all bound by the same set of moral principles by which individual persons are.
– HISTORICAL DOCUMENT OR CHARTER OF MORAL COMMITMENTS?
In addition to the Constitution of the United States being a Federal Compact, is the question which will be dealt with more thoroughly in the article on “How the US Constitution should be interpreted” in this Constitution Day series.
The question is whether the US Constitution is simply a Historical document, or something deeper – an attempt at principles that apply just as much today as it did then. Certainly, there would be an angle of folly to work so hard on a system based on a written constitution if it was not intended to last beyond their time.
Keep in mind that it was shown in an earlier article that one of the features of an unwritten constitution is that it is a “collection of historical documents, statutes, decrees, conventions, traditions, and royal prerogatives”. (Black’s Law Dictionary, 9th Ed. – term “unwritten constitution”)
The Constitution of the United States, on the other hand, was a written document that stands as – even more than merely a historical document – a charter of moral commitments to freedoms, such as “free speech” and “due process”. It is a document which was an attempt to enshrine Principles and concepts which span even their own limited understanding, as it should transcend our own limited understanding of those concepts. Even all of the the technicalities and rules of administration were merely a means to the goal of the protection of freedom generally – and, thus, should be read in light of that understanding.
FOURTH, WHO MAY AUTHORITATIVELY INTERPRET THE CONSTITUTION OF THE UNITED STATES?
– WE, THE PEOPLE
The question of Constitutional authority should always be read in light of a correct understanding of the source of it’s power and authority. Both of which, in terms of civil government in human society, ultimately come from the people themselves. As George Mason, a Father of the Bill of Rights, wisely stated:
“In all our associations; in all our agreements let us never lose sight of this fundamental maxim– that all power was originally lodged in, and consequently is derived from, the people. We should wear it as a breastplate, and buckle it on as our armour.”
In this sense, the term “We, the people” has applicability, as well as accuracy in terms of a general understanding. In fact, the people, themselves, should be seen as, not only the primary or foundational branch (or even, perhaps, root) of government – but also as the highest court and authority when it comes to constitutional matters. It is truly from individual rights and authority from which any justifiable government action is derived; and the power of the state is ultimately dependent on the collective will, whether directly or indirectly, of “the people”.
Yet, in terms of the nature of the union of States, it is not enough to stop there. Accuracy demands more analysis than what seems to have become merely a platitude.
– THE STATES
The question in regards to the US Constitution now becomes, Who’s document is it? This question may seem like mere metaphor given the 227 years of separation between ourselves and the Convention itself, yet the implications of even the attempt to answer will illustrate more about the Union than too few care to realize. Before moving on to the question of who may authoritatively interpret the US Constitution, we must first accurately answer that question.
The US Constitution is not a document directly accountable to the people, but indirectly accountable to them via the participating State governmental systems themselves. It is a compact between the states, and thus, it is more accurately seen, not as a compact of “We, the People” – but of “We”, the participating states, in an attempt to better serve the people of ALL of the participating states, generally. (By the way, this is the correct angle by which the terms “common defense” and “general welfare” is to be interpreted).
As an aside, even the question of federal power, in spite of state power, should be seen as a matter of morally bankrupt acquiescence on the part of the States – and a failure of their duty to keep their “creature”, the Federal State, a servant to themselves in the quest for better serving the people, rather than one of aiding some federal Frankenstein in their seeming quest for domination.
Do the state officials honestly believe that the US Constitution, as a piece of paper, will enforce itself? And do they conveniently not see their duty to enforce the compact that they claim as their own? The states created the federal government via the US Constitution – and hopefully, by now, more people are beginning to see the folly in allowing the federal state to have, as a result of state acquiescence, essentially monopoly power of interpretation of the document that created it. Within the context of the US Constitution itself, wouldn’t the concept of “checks and balances” mean hardly anything to a state that is able to determine the extent of it’s own power?
Thomas Jefferson, writing to William Branch Giles, in December 1825, wrote concerning these issues as, at the time, a seemingly new reality in the American system of governments:
“I see, as do you, and with the deepest affliction, the rapid strides with which the federal branch of our government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all power, foreign and domestic; and that, too, by constructions which, if legitimate, leave no limits to their power. Take together the decisions of the federal court, the doctrines of the President, and the misconstructions of the constitutional compact acted on by the legislature of the federal branch, and it is but too evident, that the three ruling branches of that department are in combination to strip their colleagues, the state authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.” (Writings of Thomas Jefferson, pp. 1509-1510)
Thomas Jefferson even coined the term nullification, or what is, basically, the refusal of a state to allow enforcement of a federal statute within it’s jurisdiction, or to participate in the enforcement of the same. He anonymously authored resolutions for the state of Kentucky, which they adopted as an act of state resistance to federal tyranny (as they perceived it) – in this case, specifically, the Alien and Sedition Acts.
What is, perhaps, more well known is the existence of these resolutions as it pertains to historical fact; and yet, perhaps, what is less known are some of the basic arguments themselves behind what he perceived as fundamental in terms of where the interpretive authority lies within the federal system. The reasoning that Jefferson promoted strikes at the heart of the issue at hand and is worthy of partial quotation.
In The Kentucky Resolutions of 1798 , Jefferson anonymously wrote, in part, that:
“the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
Thus, as the US Constitution is a compact of the states themselves, it is logical to conclude that the States have interpretive authority of their own document. This should not be seen as somehow in spite of the people. It is true, that the state interpretations and actions should be in harmony with a correct understanding of the rights and freedoms of the people within their jurisdiction. Ultimately, the people themselves are the real sources of authority and power upon which even the state governmental mechanisms rest. Yet, that being said, the pertinent issue is a matter of jurisdiction, more localized self-government and determination, and thus, the logical train rests on the concept behind the following line: that whatever authority the state institutions may have is, in principle, superior to that of the federal instruments, which were originally designed to aid the states in the ultimate goal and end of all good government; that of protecting the rights and freedom of the people.
For those who may oversimplify and argue that, in terms of constitutional interpretation, the Supreme Court has the final say – the question could be asked: What is the highest court in the land? If they answer “Obviously,The Supreme Court” (or something similar), perhaps, that would be a good opportunity to both apply the concept of federalism to our own understanding, as well as to promote it by simply asking: “Which one?” There are 51 of them across the united States – one per state, as well as the Supreme Court, at the federal level, of the united States themselves. (And that is not even including the peoples of the states themselves, as a “high court” of sorts.)
– WHAT ABOUT WITHIN THE FEDERAL STRUCTURE ITSELF?
Obviously, the issue of constitutional interpretation is applicable to all three federal branches (excluding for purposes of this article, the apparent administrative branch as a de facto fourth branch) as it pertains to their sphere of duties operating in various offices created by, and under, the US Constitution. Obviously, for example, passing bills in Congress would involve, inherently, a constitutional interpretation as to the nature of their Constitutional authority and power to do so. Thus, every officer has a part in the overall interpretation of the Constitution, both as to their particular position within the structure, and as to the other positions, especially when it overlaps with and/or effects their own.
Yet, it should be noted that when it comes to “controversies” and disputes “arising under this Constitution, the Laws of the Unites States, and Treaties made, or which shall be made, under their Authority“, and, therefore, even over constitutional issues – there arises a Constitutional allocation of authority to rule and opine, and thus, resolve those disputes in the federal court system, including most especially: the Supreme Court of the United States. (see Article Three, Sections 1-2, US Constitution)
As an example of this, just as the US Constitution gives the Congress the tool of legislation, the Executive the tool of signing and vetoing, the federal courts have the power (the tool) of ruling on issues arising under, or involving, the use of those very tools by the other branches.
For those people prone to overreaction and oversimplification, who seemingly have as their agenda the goal of making the Supreme Court as insignificant as possible (and often, ironically, in the name of “the Constitution”, “the founders”, and “original intent”) – it is recommended that you read and analyze the arguments put forward in The Federalist No. 78 by Alexander Hamilton. He wrote that essay, among many others, in an attempt to gain popular support for the US Constitution among the people of New York – which would imply, on one level, “original intent”, would it not?
After clearly elucidating the doctrine of Judicial Review (which many falsely believe was an invention of the court in Marbury v. Madison), in which the Supreme Court may and should strike down statute that is inconsistent with the US Constitution, Hamilton states that: “this conclusion [does not] by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”
FIFTH, HOW SHOULD THE CONSTITUTION OF THE UNITED STATES BE INTERPRETED?
Last, but certainly not least, is the question of how the Constitution of the United States should be interpreted.
– THE DECLARATION OF INDEPENDENCE
First, for the best interpretation to take place, one must view the US Constitution from the perspective of the principles of the Declaration of Independence. Since the US Constitution was the imperfect attempt at creating a system in harmony with those principles, it would be illogical to then turn around and view the document divorced from those very principles. Even the Framers themselves tied the US Constitution to the Declaration by the dating of the document.
Certainly, the principles behind the Declaration of Independence are the correct standard by which any government should be compared, including the US Constitution – and therefore, those principles should be the primary mode for constitutional interpretation.
Thus, if the desire for good Constitutional interpretation is present, it is recommended to first study the principles of the Declaration of Independence. The US Constitution is only as good as it is in harmony with those principles; with the most defensible portions, based on truth, being those in which are actually in harmony with those principles, with the the least defensible portions being in contradiction to those principles.
– THE FALSE ALTERNATIVE OF “ORIGINAL INTENT” AND THE SO-CALLED “LIVING CONSTITUTION”
In terms of constitutional interpretation and theory, often the mainstream narrative is between Original Intent – or the intent and extent of the framers original intention in drafting the Constitution, and the so-called “Living” Constitution – or the view that the document is not limiting in feature, and thus can be molded based on the relative views and agendas of state officials’ assertions pertaining to, and/or interpretations of the desires of, the populace.
The Constitution is not simply a historical document, but a charter of moral commitments based on principles that are just as applicable today as they were 225 years ago. Therefore, it is herein asserted that the narrative above (namely, that of original intent vs. the living constitution) is a classic A or B fallacy; A false alternative which poses two wrong-headed arguments that both ignore a real benefit of a written Constitution based on principle, as opposed to what is merely historical precedent, often based on political expediency.
First off, in studying the journal of the Convention itself, as well as the debates surrounding ratification – it does not seem at all the case that the framers “original intent” was to produce a purely historical document by which to bind future generations to their own personal opinions as to their welfare, based on what is codified in the Constitution itself. Why even allow for an amending process, for example, if that were the case? And secondly, merely because the Constitution clearly has a basis in limiting principles – based on the assumption of objective truth (“the Laws of Nature, and of Nature’s God“), and not moral/legal relativism – does not mean that the US Constitution, or the principles behind it, should be accurately considered “dead”, as opposed to “living”.
– THE “LIVING CONSTITUTION”
As to the point of “living” or loose constructionism – which, unfortunately Alexander Hamilton, himself championed in his opinion in support of the National Bank when it suited him politically (even though the view is contrary to the views he perpetrated in The Federalist) – the simple fact of the matter is that if the Constitution can mean anything, then it means nothing!
In fact, the reasons in support of a written constitution are hollow, if a relative standard of rightness was the basis of the very same written document. The document uses words, and those words have meanings, and somewhere in those meanings are the concepts themselves that are the real issues that are worthy of notice and debate. And honestly, if the Constitution can mean anything, or if the principles by which we interpret the document change (that is not to say that what we interpret cannot change, but that the underlying principles by which we interpret should not change) – then why even have a Constitution at all, let alone one that is written?
– “ORIGINAL INTENT”
As has already been stated in the first section, it should be true principles that are the basis of proper Constitutional interpretation, and not people or groups thereof. The basic flaw of the original intent doctrine is that not only does it come with the flawed assumption that it was their intent to bind us to their own opinions – but that with this interpretive mode comes a blatant double-edged sword. Assuming original intent, the Constitution will only be as correct as far as they were correct, and thus, it will be wrong as far as they were wrong – without any recourse due to the inability to interpret otherwise. This is even worse than a situation when, for example, someone who only quotes Thomas Jefferson will only be right when he was right, and wrong when he was wrong – due to the wide felt consequences of such a general acceptance as a legal mode of interpretation and application.
The principles of the Declaration of Independence themselves should be the standard, and not people. Truth, in the end, is it’s own authority – regardless of the right/wrong opinions different men may have regarding it, including the Framers.
Was the purpose of Constitutional interpretation intended to merely be made up of historical research – or to be an analysis of truths which were to be the basis of the moral commitments behind the Constitution? Another way of looking at this is this: Was the Constitution of United States, and the Bill of Rights which were added in 1791, ends, in and of themselves, or were they attempts at a principle-based means to aid in the end of the attainment of a more free society?
This is not to state that historical analysis is not a factor (which is certainlynot the case) ; but merely a secondary one to that of the principles of freedom themselves. It is merely to admit fragility in the limited understanding of man at any time, and to thus, seek the objective reality around us, which is eternally superior to any potentially limited and incomplete view of it.
– “The PHILOSOPHIC APPROACH”; Conclusion
Professors Sotirios A. Barber and James E. Fleming, in their book Constitutional Interpretation, quote a very pertinent analogy from the legal scholar Ronald Dworkin, which is definitely worthy of quotation:
“Suppose I tell my children simply that I expect them not to treat others unfairly. I no doubt have in mind examples of the conduct I mean to discourage, but I would not accept that my “meaning” was limited to these examples, for two reasons. First I would expect my children to apply my instructions to situations I had not and could not have thought about. Second, I stand ready to admit that some particular act I had thought was fair when I spoke was in fact unfair, or vice versa, if one of my children is able to convince me of that later; in that case I should want to say that my instructions covered the case he cited, not that I had changed my instructions. I might say that I meant the family to be guided by the concept of fairness, not by any specific conception of fairness I might have had in mind.”
Then, to quote, in part the commentary following the analogy: “Dworkin points out that had the children’s thinking for themselves not been consistent with their father’s instructions, he would have meant something quite different from what he said. He would not have meant not ‘treat others fairly,’ but ‘do as I say fairness demands.’ In the latter case, what’s uppermost in the father’s mind isn’t fairness or his children’s being fair or their reputations for fairness; it’s his authority over his children.” (pp. 28-29)
The professors then go on to argue for a philosophic approach to the constitution, based on it’s not being simply a historical document, but a document of commitment to abstract principles. And truly, there is merit to the argument.
Let’s take the example of “free speech”, as found in the First Amendment. If we were to limit our interpretation of that term to merely what the Founder’s had, or even could possibly have, in mind at the time (setting aside even the issue of determining which founder) – then the protection would obviously not apply to any of the modern modes of communication due to their not even existing in 1791. Yet, if we take the concept of free speech, and not merely the framers/ratifiers respective conceptions of it, then the principle would apply just as much today as it did in their day. Taking the concept, as opposed to their historical conceptions of it, would assume an approach to the Constitution based on a moral commitment to things such as “free speech”.
Therefore, it is a principle-based, or more specifically, a Truth-based philosophic approach which is needed for a correct understanding and interpretation of the Constitution of the United States.