A study in contrasts!

This is a comparison of the Constitution of the United States vs. The Communist Manifesto.

1. Property rights
a. Protection guaranteed under the Constitution (Amendment V).
b. Abolition of property in land and application of all rents of land to public purposes (1st item of the Manifesto list of provisions).

2. Freedom of speech
a. Congress shall make no law respecting an establishment of religion . . . abridging the freedom of speech or of the press (Amendment I).
b. Centralization of the means of communication and transport in the hands of the state (6th item of the Manifesto list).

3. Taxes
a. Congress shall have power to lay and collect Taxes, Duties, Imposts and Excises. . . but all Duties, Imposts and Excises shall be uniform throughout the United States. (Art. I, Sec. 8) No Capitation or other direct, Tax shall be laid (Art. I, Sec. 9. Modified by XVIth Amendment authorizing income tax. cf. item “b” following.).
b. A heavy, progressive or graduated income tax (2nd item of Manifesto).

4. Education
a. Not mentioned, referenced or authorized in the Constitution. Only patent and copyright protection are covered in Art. I, Sec. 8.
b. Free education for all children in public schools . . . Combination of education with industrial production, etc. (10th item of Manifesto).

5.Freedom of movement.
a.No restrictions under the Constitution. Citizens of one state have all the privileges of any other state and may travel freely between and within at any time. (Art. IV, Sec. 2).
b.The Manifesto regulates the movement of the citizens to a government plan. Permission to travel is required before embarking on a trip. (6th , 8th and 9th items of Manifesto).

6. Form of government
a. The United States shall guarantee to every State . . . a Republican Form of government . . . (Art. IV, Sec. 4).
b. . . . the first step in the revolution by the working class, is . . . to establish democracy. (Part II of the Manifesto).
Please note, the word “democracy” does not appear anywhere in either the Declaration of Independence or the Constitution. The simplest and most basic difference between a democracy and a republic is that a “democracy is the rule of men” (constantly changing as the populace discovers it can vote itself whatever it wants from the public treasury) whereas a “republic is the rule of law” (a known and stable set of rules by which everyone is governed and with which all must comply).


7. Inheritance
a. No mention in the Constitution. Because private property is protected, it was presumed that a person had the right to dispose of it according to their desires.
b. Abolition of all right of inheritance (3rd item of Manifesto).

8. Class distinction
a. No Title of Nobility shall be granted by the United States: And no Person . . . shall . . . accept . . . any present, Emolument, Office, or Title, of any kind whatever from any King, Prince or foreign State. (Art. I. Sec. 9 & 10.). All citizens of the United States are considered equal under the law.
b. The history of all hitherto existing society is the history of class struggles
[Bourgeoisie vs Proletariat] (Part I opening sentence of Manifesto).

Readers can judge for themselves which system is best, which has produced the greatest good for the greatest number and which allows maximum freedom for the individual. I have my view. What’s yours? Reach me at constitutionviews@gmail.com.
©Copyright 2011 Hillard W. Welch

What the Founders must have known

The writings of the Founders display a far broader knowledge of historical, political, religious, economic and philosophical studies than one can find in any cross section of leaders in America today.

In debating the manner and form of their new nation’s government, they sought freedom, prosperity and peace. To achieve this in a self-governing country required a belief that the individual citizens would be educated to the importance of the task and accept the responsibilities inherent therein.

They saw freedom, specifically freedom for the individual as the overriding purpose of any government. They knew that democracies throughout history had descended into despotic tyrannies with a total loss of individual freedom. Democracies in their eyes exhibited all the weaknesses of the rule of men and their potential for personal power and control. Thus their decision to establish a republic based on the rule of law to which all would submit, rich and poor, knowledgeable and ignorant, farmer or merchant.

Freedom did not mean license to do whatever one pleased. Rather, it meant opportunity to achieve maximum potential for each individual operating within the bounds of rational behavior and with respect for fellow citizens.

To guarantee such freedom, the Founders wrote a Constitution that severely limited the areas of activity and responsibility of the federal government. The powers granted were not aimed at the individual citizen but at the government in general in fulfilling its duty to preserve and protect the freedom and property of every individual. Such protection extended to both domestic and foreign tranquility. Thus, Article I, Section 8 of the Constitution which limits the federal government to 17 specific areas of activity. The 18th item in the list was to provide Congress with the power to enact laws in fulfillment of the prior 17.

As careful students of the Bible, they had a strong belief in religious principles. They believed in “right and wrong” in their determination of the principles upon which they crafted the Constitution. They knew of corruption but believed it beyond their concern since only truly moral individuals would want to serve in government. They did not consider the possibility of individuals seeking a political career. Rather, that serving in whatever capacity was an honor and only a temporary assignment after which each would return to pursue whatever livelihood they wished or had previously enjoyed.

Having experienced the devastating results of fiat currency during the revolution, they recognized the need for a sound, commodity based currency. To achieve this and prevent the potential of counterfeiting and the destructive aspects of inflation, they decided that gold and silver were the commodities on which the US currency would be based. To make the point as universal as possible, they inserted a clause (Art. I, Sec. 10.), that “No State shall . . . make any Thing but gold and silver Coin a Tender in Payment of Debts . . .” Take a moment to reflect on how different our circumstances would be today if we had stuck by the Constitution. This was part of the Founders understanding of how prosperity could be achieved.
In the Declaration of Independence, the Founders enumerated the tyrannical acts of a irresponsive monarch whom they considered to be both illegal and opposed to the rights of free men and women.

Consider if you will the following acts among many which were addressed in the Constitution in order to prevent their recurrence under their new government: quartering of soldiers in citizen’s homes during time of peace; rendering the military independent of and superior to the civil power; imposing taxes without citizen’s consent; depriving us (Americans) of trial by jury; and many more stated infractions.

In short, the Constitution was the Founders’ determination to set forth a solid foundation on which government could perform its assigned duties, all of which were essentially done to secure the blessings of freedom, prosperity and peace to themselves and successive generations to come.

That’s my view. What’s yours? Reach me at constitutionviews@gmail.com
©Copyright 2011 Hillard W. Welch.

The uncivil war . . .

According to one definition, civil means refined, respectful and “civilized”.
The war between the states from 1861 to 1865 was anything but “civil”. In fact, it was the most brutal war in which the United States has ever been involved. More individuals were killed, maimed, blinded or generally incapacitated than in WWII or WWI. The destruction of personal property was beyond imagination as Union troops “scorched the earth” as they marched through various parts of the South.

Civilians were not exempt from the calamities of the conflagration nor were the negroes (or slaves) as Generals Sherman and Sheridan proved how complete they could make the devastation.

To end slavery has always been the promoted purpose of the war! A reasonable reading of the history of that era shows that to be propoganda introduced only after the war was nearing the final surrender of the confederate army. The facts indicate that economics, not slavery, was the underlying cause of the South’s decision to secede. Truth be known, Abraham Lincoln’s “emancipation proclamation” exempted those states with slavery that remained loyal to the Union. It was only those rebellious states where the slaves were to be freed.

Prior to the war’s start, Congress had imposed a tariff on all goods coming into the ports of the country. The Southern ports suffered more than the Northern ones. South Carolina’s legislature took the initiative, citing the IXth and Xth amendments, and passed a law nullifying the Tariff and refusing therefore to collect it. They claimed the tariff was unconstitutional, if for no other reason than that it was not “equitably applied” as required under the constitution.

Having signed the tariff bill, Abraham Lincoln suspended the “writ of habeas corpus” (a highly questionable interpretation of Art. I, Sec. 9) and authorized the arrest and imprisonment of individuals in the North who openly objected to his policies and prosecution of the war. Such prisoners were held without charge and without any prospect of a trial ( a definite violation of Amendment VI of the Bill of Rights). Hardly the acts of one who respects the Constitution.

According to the history of the times, Lincoln had always been in favor of a strong central government taking the position that the states were created by the federal government rather than the way it actually happened. While this attitude was expressed by others including Daniel Webster, the fact remains that the states were functioning as independent, sovereign organizations prior to the Articles of Confederation, the first attempt to form a government bringing the states together.

The Founders always represented their individual colonies (states).. Each state expressed its own particular point of view. The dichotomy between Jefferson’s concept and Hamilton’s was evident even during the writing of the Constitution. That Jefferson’s prevailed in the final document as ratified did not deter the Hamiltonians from working to change the basic interpretation. Abraham Lincoln achieved the final transformation to “subjugate the states to the will of the federal government”.

Thus, the Civil War was really fought to establish the United States as a nation rather than a federation. The results of this transformation have been evident ever since as the federal government has grown far beyond the bounds established by the Constitution. Much of the transformation has been “allowed” by the courts in “interpreting” the words and clauses rather than “applying them” in evaluating whether the law proposed or enacted was justified and consistent with the intent of the Constitution.

That’s my view. What’s yours? Send comments to constitutionviews@gmail.com
©Copyright 2011 Hillard W. Welch

Do words have meaning?

Most of us were probably taught that words have specific meanings and there was usually a basic meaning that permeated all interpretations of it. Thus, the use of a particular word would convey to the reader or listener a specific meaning.
Having said all that, let’s look at some of what has happened to the Constitution and its “words” since they were put on paper and agreed to by the states in 1787.

According to Jefferson and Madison, the government powers were to be “limited” to only those specific areas as defined in Article I, Sec. 8. In the opening paragraph of that section it notes that “all Duties, Imposts and Excises” (in other words, taxes) must be uniform throughout the United States. “Graduated” was not a part of the word or words used, yet Congress and the Supreme Court have accepted the idea that it is OK to have graduated taxes. The concept of a graduated income tax (personal or corporate) was originated by Karl Marx as a method for redistributing the wealth of a country.

On the other hand, Hamilton and his followers, including Abraham Lincoln, took the position that the words “general welfare” and “liberty” were expansive permitting the government to do almost anything it wanted so long as those three words were applied to the ultimate purpose of whatever was being proposed. It is this interpretation that has resulted in a greater concentration of power and control in the Federal (now more appropriately termed “central”) government.

While Jefferson, Madison and Calhoun held sway during the formative years of the country, Hamilton and his followers including Clay continued to press for an enlarged “central” government.

The next major “word” interpretation came with the XIVth Amendment. This amendment has been the basis for the Federal government applying the first eight of the ten Bill of Rights amendments to the states by interpreting the phrase, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, etc.” By this the Federal government, with the acquiescence of the Supreme Court, has over-ridden state constitutions that allowed or endorsed school prayers, that regulated public distribution of licentious material, restricted display of nudity, and other aspects of civil conduct that are most assuredly the province of the states under the Constitution.

We seem to have drifted, or been lead, into the world of Humpty Dumpty who said, “Words mean what I say they do . . . No more, and no less.” The Supreme Court has used the term “penumbra” to stretch the meaning of either the specific word or clause to accommodate the justice’s idea of what should be done or accepted rather than what the word or clause specifically states. In the famous case (Griswold vs. Connecticut, 1965) Justice William O. Douglas introduced the idea of “penumbra” of the Bill of Rights whereby he wrote the opinion overturning a Connecticut law forbidding the distribution of contraception materials or information even to married couples. Invoking the “extension” concept from the XIVth Amendment, the question must remain as to the jurisdiction of the Federal Government and the Supreme Court in intruding on an area obviously not stated in the Constitution. In fact, if the IXth and Xth amendments were adhered to, the federal government, and perforce the Supreme Court, had no jurisdiction in this instance. Do the words mean what they are intended to mean or may we interpret them to our own satisfaction?

It is doubtful the Founding Fathers ever contemplated such verbal elasticity!

That’s my view. What’s yours? Send comments to constitutionviews@gmail.com
©Copyright 2011 Hillard W. Welch

The Constitution a citizen’s view. Why a citizen’s view?

Innumerable treatises, articles, books and promotional documents have been written about the two founding documents of our country. Most are by lawyers, educators or a political presence of some note with credentials that would cover any monument desired.

It became quite clear that the one source that was missing was the average citizen. What was his or her understanding and interpretation of what those critical documents said and intended? Thus, this series of articles all focused on either the Declaration of Independence or the Constitution. No claim is made for expertise other than the ability to read and comprehend the meaning of the words written. Yes, the author did pursue an American History major at college. Perhaps that is the reason for the undying interest in the documents and the founding of our country.

One of the very first things that attracted attention was the language.
It is not legalease. It is genuinely, “plain English”, albeit somewhat stilted in places. Unfortunately, our population is losing the ability to understand “plain English” rather rapidly.

Next, all statements were positive. They either directed an action or responsibility or explicitly prohibited one. That made it easy to know what was intended. (Read the Bill of Rights Amendments and see if you don’t agree!)

They also limited the areas of activity in which they believed a government responsible to the citizenry should be “allowed” to operate. If you have not read Art. I, Sec. 8 recently, please do so. Then you will be familiar with the 17 areas in which authorization was provided for a federal government to operate.

Recognizing the natural human desire to always enlarge a sphere of influence, the Founders sought to provide a curb to such activity. Deciding just three branches would be necessary to form a stable government (the “three-legged stool concept”) , they believed they created a system of “checks and balances”. This would ensure that no one branch would override or usurp the powers of another branch. Have we been vigilant enough to maintain that “balance” or has it gotten out of whack?

When they declared that the Constitution would be the “supreme law of the land”, this did not include the idea that a Treaty with a foreign entity could override it. Such treaties had to be consistent with the purpose and intent of the Constitution. There is no question but what they believed in the innate goodness and judgment of the common man, expecting him (or her) to educate themselves about the details of the problem to be resolved. This was not a question of eliminating conflicts. Rather, it meant that others, just as they had done in drafting the Constitution, would arrive at an equitable and eminently just resolution to their difficulties and differences. The ultimate good was for the whole without destroying the independence of the individual in the process.

The words reinforce the independence of the individual “colonies” who came together to create a “federal” (a voluntary association of sovereign states) rather than a “national” (single homogeneous entity) government. Amendments IX and X address this point in a conclusive manner.

To quote from Jefferson’s greatest epic, the Declaration of Independence, “ . . . That these United Colonies are, and of Right ought to be Free and Independent States . . . [with] full Power to levy War, conclude Peace, contract Alliances, establish Commerce . . . ” and more.

All individuals, young or old, irrespective of educational level and with an interest in our country are invited to comment, criticize, suggest or otherwise respond to these articles. But, only after you have read or re-read the two documents in question.

That’s my desire. What’s yours? I can be reached at constitutionviews@gmail.com
©Copyright 2011 Hillard W. Welch

The Constitution A charter for success!

Basic to understanding the meaning of those words is a thorough reading of the twin documents,the Declaration of Independence and the Constitution. Regardless of how recently you may have read or reviewed them, please do so again – slowly and with thoughtfulness.

The point is that those two documents, charters if you will, provided the framework for building a nation vastly superior in every respect to any that preceded it or has come into being since. Others have copied (or attempted to copy) the U.S. Constitution. Yet, they have failed to appreciate the principles and subtleties incorporated in the various clauses.

Start with the preamble and even though it is not considered an “integral part” of the document, it begins with, “We the people of the United States . . .” It does not say “of America” nor does it name a single entity as the structure. The word States is plural and in one of the original drafts of the document, all 13 colonies were listed. Considered too cumbersome, the present wording was adopted to simplify the statement.

The Founders believed that the best government was that closest to the people themselves and thus they constructed the “nation” as a federation of independent, sovereign colonies (states). By this concept, they saw the means to allow a wide variety of disciplines, attitudes, organizational ideas, etc. to exist without conflict. To ensure that each such state could interact in a reasonable manner with any other state, they included a “commerce” clause (Art. I, Sec. 8).

Keep in mind as you read the Constitution that the Founders believed in individual liberty. Thus words and areas of activity were chosen to preserve maximum liberty for individuals, not groups, associations or any other entity. This should provide you with a greater appreciation for the limits they imposed on the “federal” government and not the states.

Individuals were to be responsible, and accountable, for their own acts. Individuals were expected to do for themselves almost everything and look to the federal government for a minimum number (actually only 17) areas of responsibility. Such an approach meant that any and all individuals were free to pursue whatever occupation or avocation they desired without government interference. Remember that there was no income tax and when first tried was found unconstitutional! That was one more way of ensuring that each individual was entitled to the fruits of his or her labors.

Returning to the document itself, see if you can find any words that permit the federal government to take money from one individual or group of individuals and give it to another or a foreign country!
History has long recorded the fallacy of “attempting to buy friends with money”.

Believing that a chain is only as strong as its weakest link, the Founders recognized the sovereignty of each state, expecting each one to “take care of its own”. Reliance on the federal government was limited to those 17 duties assigned in Art. I, Sec. 8., each of which was considered beyond the capability or resources of an individual state. Amendments IX and X unequivocally established every state’s sovereignty and retention of the bulk of powers and rights of responsible government.

Liberty and freedom for individuals were the bases on which all powers were to be interpreted. If the government restricted either of them, that was cause for change in that part of the government or declaring the act (or legislation) as unconstitutional.
The question today: are we as free and do we have the liberty guaranteed by the Constitution that our forefathers enjoyed for at least the first 100 years of our republic?
That’s my question. What’s yours? Contact me at constitutionviews@gmail.com
©Copyright 2011 Hillard W. Welch

The Constitution. Hamilton’s duplicity

As a member of the Constitutional Convention and the author of a number of the Federalist Papers, Hamilton’s disagreement with the government being formed raises the question of his true desires.

Alexander Hamilton achieved an almost legendary position with many supporters and followers and some notable enemies.

In fairness, throughout the debates occurring during the Convention, Hamilton expressed his belief in a “different form of government” from that which was drafted. While never using the word, “dictator”, Hamilton is known to have believed that the United States should be headed by a king or president elected for life. Further, he stated that the government should have far more arbitrary powers than the few enumerated in the document.

In fact, he believed that the government should be empowered to do anything they (whoever was in control) wanted or believed should be done. While he repeatedly expressed the idea that such actions would always be in the “public’s interest”, the results would disprove this beyond question.

Hamilton was an admirer of the British mercantilist system (government-business cooperation) which he hoped to impose on the infant United States. This would have limited the “participants” in governing to those of substantial business interests and/or long political history and power. Working together, the two groups would “control” (or regulate if you wish) anything and everything within the country.

In the Federalist Papers, he expounded on the benefits of the proposed Constitution, the very document he intended to subvert through various means, once given the opportunity. A strong, early supporter of a strong central government was John Marshall who became the first Chief Justice of the U.S. Supreme Court. Another adherent was Aaron Burr who ended Hamilton’s career by a duel.

Instead of a limited government defined by the Constitution, Hamilton wanted a government with unlimited powers, a large tax collecting agency and an aggressive foreign policy. He was not reticent about expressing his desires for an American Empire with worldwide influence and involvement..

In Federalist Papers #84, Hamilton asserted that a bill of rights would “contain various exceptions to powers which are not granted” and “this would afford a coulorable pretext to claim more than were granted.” Madison responded, stating, “this is one of the most plausible arguments against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.” He guarded against this possibility with the 9th and 10th Amendments and the well understood rule of inclusion unius est exclusion alterius (including one excludes all others).

Despite those Amendments, Hamilton went on to claim that if it wasn’t expressly prohibited, then it was permissible. We have seen the results of this interpretation many times during the past century. For example, presidents have declared war without a vote of Congress, given subsidies to private interests and “confiscated” private property for government gain (Kelso decision). He was the first to speak of “implied powers”, none of which would be allowed under the Constitution. Further, he used the “necessary and proper” words from Art. I, Sec. 8 to claim that Congress could therefore do anything it wanted by way of fulfilling the other powers granted. By his use of the “general welfare” clause, modern politicians and jurists have interpreted it to mean that Congress can pass any law which in its “judgment” is for the general welfare. It is not possible to cover all of Hamilton’s duplicity in a single writing. Subsequent articles will cover more of his ideas that have abrogated the limited powers of the Constitution of the United States.

That’s my view. What’s yours?
©Copyright 2011 Hillard W.Welch

Enitlement – welfare – charity?

We hear a lot about “entitlements” which ultimately translates into welfare or government subsidy in one form or another. The word does not exist in either the Declaration of Independence nor the Constitution.

To be accurate, the word “entitle” and “entitled” do.
In the Declaration, it states, “ . . . to which the Laws of Nature and of Nature’s God entitle them . . .”

In the Constitution, it states, Art. I, Sec. 2 [3] “ . . . each State [as named] . . . shall be entitled to (a specific number of representatives); Art. II, Sec. 1. “ . . .each state shall appoint . . . a Number of Electors . . .to which the State may be entitled in the Congress . . .” And Art. IV, Sec. 2 “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

Despite this, we read and hear continuously about “entitlements” such as Social Security, Medicare, Medicaid, Food Stamps, etc. And, those on welfare are “entitled” to food stamps from the U.S. government.

If the founding documents be properly interpreted and understood, the only things to which a citizen is “entitled” are: life, liberty and the pursuit of happiness! There is no mention of government handouts, subsidies, loans, grants or other gifts from the taxpayers.

Welfare is mentioned, but only in the Constitution’s Preamble and Art. I, Sec. 8. Both refer to general welfare. Note particularly that the word is modified by the adjective general. Logically that means “all”. In other words, whatever is promoted must be of benefit to “all the citizens”, not just a minority, special interest group, industry, business or profession. Consider then any or all of the “subsidies” and “grants” provided today to a variety of just such entities. The question must be asked, “are such government disbursements constitutional?”

The word “charity” is not found in either document. That is probably because it was not considered a function of government by the Founders. Charity was something that individuals dispensed to those they considered in need and for whom they believed it would be helpful and constructive. There is and always has been a major difference between charity which reflects genuine compassion on the part of the giver and welfare as meted out by a government bureaucrat. For one the recipient is normally appreciative. For the other, the Pavlov dog syndrome comes into play and the individual rapidly accepts the idea of “entitlement” on a continuing basis.

So how did we get into the present situation where almost half the population “believes” they are entitled to something from the public treasury? It can’t be from reading the Constitution or the Declaration of Independence since neither document speaks to such activities.

Entitlements then appear to be something the politicians have dreamed up to make themselves more important to their constituents who will vote to continue them in office. By promising some benefit the constituents are lead to believe they are getting something for nothing. This is a fraud of the worst order since there are no free lunches! Such government largess serves to destroy the character of the very people it is supposed to assist. The fall of Rome is an outstanding historical example.

The difficulty appears to come from the lack of personal responsibility on the part of the individual citizen. In accepting the “gift” proffered by the politician, the voter changes from being a master to a servant. Unfortunately, the road back and rehabilitation require massive education of the voter.

It was Thomas Jefferson who said, "I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their controul with a wholesome discretion, the remedy is, not to take it from them, but to inform their discretion by education.” 1820 September 28. (to William C. Jarvis)
That’s my view. What’s yours?

Are the States Sovereign?

Too often in a debate or discussion about the Constitution, its creation and meaning, the fact that the federal government is a “product of the states” and not the other way around, is completely overlooked.

Today, most talk about “the government”, meaning the federal government, completely bypasses the fact that without the states, there would be no federal government. The Articles of Confederation proved that a “loose knit” organization does not have sufficient power to perform the basic and vital services required.

When the Framers convened in “filthy” Philadelphia in the heat of the summer of 1787, they set about defining what, in their minds, constituted an appropriate form and the extent of the powers which should be assigned to it. None of them expressed the idea of “unlimited” power. Rather, they focused on what they considered were essential services and powers necessary to preserve and protect the hard-won freedom the colonies had secured as a result of the revolutionary war.

To a delegate, they recognized that the states would have to give up some of their sovereignty if the federal government was to succeed. However, they were jealous individuals and did not want to give up any more than was absolutely necessary. Having witnessed the inadequacies of the Articles of Confederation and having an exceptional knowledge of history, they “hammered together” a set of conditions which they believed would create a federal government to which they, each state, could adhere. They wanted a federal government strong enough to protect them from outside predators; one that could provide a stable economy and serve as a “referee” in enforcing the rules the legislature would enact. Yet they wanted it severely restricted as to how many different powers it had, the extent of such powers and the prohibitions against intrusions on the lives and businesses of individual citizens (re-read the Bill of Rights)!

The fact that the states have succumbed like Pavlov’s dogs is no excuse or obliteration of the fact that the states created the union. Their submission is only evidence of the weakness of man in terms of resisting temptation. The offer by the federal government to provide monies for specific functions or activities does not remove the potential or right of any state to refuse! While it is not new, we are seeing a resurgence of this attitude in the “nullification” proclamations introduced by a number of states. They are asserting their rights to disagree and refuse acceptance of a federal mandate! Perhaps they are realizing the cost of acceptance and the federal control that comes with such acceptance. While this may be to Alexander Hamilton’s liking, it is far afield from Jefferson’s dictum of “that government is best that governs least!”

When one considers that the 10 Amendments added immediately following ratification of the basic Constitution incorporated two that addressed the specific question of state sovereignty, there should be little doubt in any reader’s mind. Let’s look at those two amendments.

IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

and Xth. 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.

While legal scholars have argued that the two amendments are redundant, a careful reading should clearly reveal that they are reinforcing the basic point that the United States is a creature of the States and not vice verse.
That’s my view. What’s yours? Reach me at constitutionviews@gmail.com
©Copyright 2011 Hillard W. Welch

Guts and Fortitude!

We’re thinking about the people who populated this land that became known as America and finally created the United States.

Many of them did not know where they were going, whether they would live through the transatlantic ordeal in the “skiff” on which they embarked, or if they could survive once they arrived.

Could it be that the “love of freedom” and the willingness to sacrifice almost everything to secure it was at the root of their decision? Certainly they did not think in terms of “building a business and reaping great monetary rewards”. Many felt persecuted for their religious beliefs. The motivation inspired them to pick up whatever belongings they had or could carry and venture off to an unknown continent where they didn’t even know if they could survive, let alone that they would arrive there safely.

Yet, come they did. By the thousands. They sought “freedom of religion” not “freedom from religion”. They sought security in their persons and possessions. Note the clause in the Constitution about seizure, warrants and the taking of property without due process of law. (See Amendments I and IV)

They sought “freedom of speech”. They did not fear critical comments or disagreements. In fact, it appears that they welcomed them. The pamphlets, letters of correspondence, public assemblies and other acts of defiance toward their “oppressors” reached the boiling point prior to the outbreak of hostilities that became a war for independence. (See Amendment I)

They had a genuine mistrust of government. This was the result of the arbitrary laws and taxes imposed upon them as colonies of Great Britain. Under the feudal approach many were considered more slaves than citizens. Some countries, notably Britain, were making strides in the direction of more freedom for their citizens. However, the fact remained that the government in the person of the King, dictated the rules and set the taxes.

The colonials exhibited a strong sense of independence and self-reliance. They did not look to, nor expect, assistance from government. They espoused what became a Jefferson axiom, “that government is best which governs least”. They looked to themselves and their neighbors in time of need. A well known example are the “barn raising events” that were common during the early days.

Despite the hardships they encountered once here, they stuck it out. There appears to be little evidence of any “giving up” and attempting to return to their mother country. They exhibited a high degree of determination, particularly when you consider that almost every one of them was starting from scratch with only those possessions they were able to bring with them.

There was a strong pioneering spirit and a willingness to confront all obstacles. Few may recall that a number of the early settlements in this land were essentially socialistic. All members of the particular group were expected to “serve the good of the whole”. That approach proved a disaster and the settlers abolished it early on, substituting “individual property rights” versus communal. The new approach was not only successful, it taught the colonials a lesson they never forgot. (See Amendments IV and V).

To paraphrase Ben Franklin, “America spawned a new breed, a heartier more resilient group of people who needed a new nation.”

Yes, those who came first and populated this country were a breed apart. They stood on their own two feet, were totally independent and pursued their desires without interference from a government. Do we today have individuals with the same guts and fortitude as our forbears? It would appear unlikely when you consider that today almost half the population is accepting government handouts. Hardly a sign of individualism and independence.

Who is in charge?

The Constitution is fairly explicit in defining the responsibilities and duties of the three branches of government created by that document. So, let’s start with Congress.

Art. I, Sec. 1. “All legislative powers herein granted shall be vested in a Congress of the United States.
The Article then goes on to define the makeup of both the House and the Senate as well as the attributes each elected member must have (e.g. age, residency, etc.)

Sec. 8 very carefully defines the 17 specific powers granted to Congress, adding an 18th, “To make all laws which shall be necessary and proper for carrying into Execution the foregoing powers . . .”
The Bill of Rights state 8 areas where Congress may not act.

Art. II, Sec. 1, 2 & 3. The Executive Power shall be vested in a President of the United States. Before entering on the execution of his office, he must swear or affirm that he will, “preserve, protect and defend the Constitution of the United States.” He shall be the commander-in-chief of the Army, Navy and Militia of the several states. He shall have Power, by and with the Advice and Consent of the Senate, to make treaties (2/3 of the senate must approve). He may fill vacancies by appointment during a senate recess, such appointments shall expire at the end of their next session. He shall also provide a “state of the union” report to Congress and can recommend for their consideration such Measures as he
judges necessary and expedient. He may also convene both houses on extraordinary occasions. He shall “take care that the Laws be faithfully executed and shall Commission all the Officers of the United States.” There is no mention of Executive Orders!

Art. III, Sec. 1 The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. . . . In all Cases . . . in which a State shall be Party, the supreme Court shall have original Jurisdiction.

The separation of powers and delegation of responsibilities made each branch serve as a check on the transgression of the others. How far we have strayed from that noble concept. We find judges making laws as well as Presidents issuing executive orders that take on the force of law. We find departments within the government issuing regulations with the force of law but without Congressional approval.

John Adams said, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” With the attacks on our religious foundations and liberal desire to remove God from all aspects of both the government and civilian life, the question must be asked: “are we no longer a moral and religious people?”

In the true sense of the Constitution, all acts should be consistent with the proscriptions of that document. Anything outside of that would be considered null and void since it would not be authorized.

Today we have a strong desire on the part of even Supreme Court justices to apply case law instead of constitutional law. In fact, it goes so far as to have some justices stating that the Court should take into consideration foreign law and standards rather than apply the restraint of the Constitution in deciding the outcome of a case. Case law uses precedent rather than principal for its foundation. Thus, if something was permitted in the past, whether right or wrong, it may be used in support of further deviation from the original intent of the Constitution.

The Electoral College – as “amended”

In our first article about the Electoral College, we tried to develop the thinking we believed the Founding Fathers employed in devising the system. There can be no question but what they considered the selection of a President and Vice President as a singularly important undertaking. With the purpose of “selecting the best qualified individuals for the positions”, they devised the unique situation whereby the “electors” of each state have no other function than to nominate the person (or persons) they consider most qualified for the position. The electors were to have been either appointed by a state’s legislature or voted upon by the citizens of the state.

One thing was absolutely clear in the original: the states were to elect the President and Vice-president as sovereign entities (Art. II, Sec. 1, §2). Citizen participation was at the will of the state’s legislature. There was no such thing as a “popular election”. This was intentional, the Framers believing that it should be a careful, thoughtful deliberative process in order to be sure of selecting the most qualified person for the position.

However, almost immediately upon the ratification of the Constitution, the desire to “change the system” began circulating. The XIIth Amendment sought to clarify the selection of the individual for President and the one for Vice President. Now distinct lists for each office were to be prepared by the electors appointed in each state. The prohibition against the two citizens coming from the same state was continued. The other details were left untouched.

The Founding Fathers idea of an independent body of electors disappeared with the arrival of the political parties. Political parties began offering their own “slate of electors” for each state with electors pledged to vote for a specific individual of the party’s choice. Rarely did an elector “break ranks”. In fact, several states passed laws binding an elector to the result of the popular vote. Thus, the deliberative process of individual citizens thoughtfully selecting someone considered best qualified to be an “elector” was thwarted by the appearance of the political parties.

Each state legislature had the power and authority to determine the method by which their electors would be chosen. The legislature could appoint them directly or allow the citizens to cast votes for individual electors. In 1788, Pennsylvania began allowing its citizens to vote for presidential electors. Today, all states follow this procedure.

An important sidelight is the fact that the U.S. Supreme Court ruled (Bush v. Gore 2000) that a state legislature could take back the power to appoint electors at any time. This overrode a state having previously installed the practice of allowing the citizens to vote for such electors.

Two other amendments, XXth and XXVth address the question of possible problems when an elected President dies prior to taking office. In both, the conclusion was reached that the “elected Vice President” should immediately take over.

While there have not been any amendments that sought to abolish the Electoral College, it can be seen that the original intent of such a body has been completely eviscerated by the actions of the political parties. The Founding Fathers never contemplated the inordinate growth of such organizations nor the power they could wield in shaping the discourse surrounding the selection of a President and Vice President. Gone almost completely is the knowledge that the states elect the President and Vice President and not the citizens per se. Mass media and political barnstorming serve to persuade the citizen to vote for a particular candidate, at times irrespective of the individual’s qualifications for the position.

The question remains: could the original intent still work or has the process become so manipulated, that it focuses more on political showmanship and financial backing?