February 27, 2014
Instructor: Douglas V. Gibbs
41669 Winchester Rd.
· Introduction to the Constitution
· The Rule of Law
Rules for Radical Patriots begins, “To God, the first American Patriot.”
The early Americans were true patriots. They loved the land, the system that had evolved on that land, and the individuality from Europe the new land called “The United States of America” embodied.
The British owed their loyalty to the king, and the government he was the head of. In America the colonists owed their loyalty to America, and the spirit it represented. Their patriotism embraced the exceptionalism that was America.
What the British felt for the monarchy, and the British Empire was not patriotism, as much as it was nationalism, and nationalism was something the founders sorely wished to divorce America from.
One may consider the important distinction between a nationalist, and a patriot. Patriotism is the wholesome, constructive love of one’s land and people. Nationalism is the unhealthy love of one’s government, accompanied by the aggressive desire to build a centralized governmental system to a point that it is above all else, and becomes the ultimate provider for the public good. In short, Patriotism is love of country, Nationalism is love of government.
The frame of reference of the Founding Fathers was the British Empire, and the monarchy. In their independence, the patriots of America desired to be as nothing like the tyranny they had won their independence from as possible. The Founding Fathers, based on their own experiences, the trials and tribulations of the colonists before them, and the realities of history, determined that freedom for individuals was best served when the governmental system was limited by the chains of a constitution. Nationalists believe that government should have the authority to enact any act of government for the purpose of forceful benevolence, and that the citizenry is a collectivistic organism that exists to serve the ruling elite. But if an individual is being forced, how is it benevolent?
Across the Atlantic Ocean, the Americans had created a system not based on collectivism, and allegiance to a monarchy, but a system based on individualism, based on allegiance to the land and the people, fueled by a free market, and a representative system equipped with checks and balances in order to limit the ambitions of the powerful, while also curbing the excesses of democracy.
In the American system, the people, through their States hold original authority. All powers originally belonged to the States, and only the authorities necessary for the protection, preservation, and promotion of the union were granted to the federal government by the States during the Constitutional Convention of 1787.
“Big Government” is when the central government expands beyond the authorities granted to it. This kind of governmental expansion is normally an attempt to transform the central government into a more nationalist system. The danger of nationalism is one of the reasons the Founding Fathers created a “federal” government, rather than a “national” government. They desired that the American people became patriots who stood tall for their land and country, rather than nationalists who were serfs serving a powerful ruling elite.
Federal Government: System of government in which power is distributed between a central authority and constituent territorial units.
Patriotism: Wholesome, constructive love of one’s land and people.
Nationalism: Unhealthy love of one’s government, accompanied by the aggressive desire to build a ruling centralized governmental system.
Original Authority: Principal agent holding legal authority; initial power to make or enforce laws; the root authority in government.
Questions for Discussion:
1. How is nationalism not compatible with the principles of limited government?
2. Why did the States hold original authority?
3. Why is Big Government so dangerous in a system with sovereign states?
Thomas J. DiLorenzo, Hamilton's Curse; New York: Three Rivers Press (2008).
The Rule of Law
Though a federal government could potentially be a bad thing, the complete lack of a federal government was an even more dangerous proposition. The Founding Fathers realized that if the States had not united against the British Empire, the Revolutionary War would never have been won. And as a nation, without a federal government wielding enough power to field an army, or tax in order to pay for that army, the new country would not long survive. The Articles of Confederation, a loose agreement between the States, proved to be too weak in the face of Shays’ Rebellion. So, the Founding Fathers set out to create a new government with enough power to form a more perfect union, yet limited enough that it did not become a centralized tyranny such as the one the patriots had just defeated in the War of Independence.
The British Empire was ruled by men. The King believed Britain to be his realm, therefore the concept of property ownership was limited to a small group of land owners, who were the Lords of Britain. The King, and the nobles, had complete power over making law, and imposing taxes. The Founding Fathers realized that a nation ruled by an oligarchy of political elite was not compatible with the society that would champion liberty, and individual rights, that the founders desired.
A Democracy is a system of government ruled completely by the people. All laws and governmental functions, in such a system, are determined by the whim of the people. Historically, democracies are transitional governments that, when the people seek a governmental system more efficient and stable than their fickled democracies, become oligarchies, or a governmental system characterized by the many being ruled over by a few political elites. Therefore, the founders did not desire to create a democratic governmental system. Ultimately, a democracy always breaks down, and the system that replaces it centralizes, becoming nothing more than a system like the monarchy that the Americans had fought so hard against in order to gain independence.
The conclusion was that the United States must not be subject to the laws of men, be subjected to the rule of men, or open itself up to become an oligarchy by creating a system that enables too much power to be granted to a single person, group of people, or governmental entity. The new nation needed to be a nation subject to the laws of God, governed by the rule of law, and have a republican form of government that features a representative system of governance. The States, and the people, would need to hold sovereign power. The federal government would need to be limited to authorities only necessary for protecting, preserving and promoting the union. All other authorities, specifically those authorities that would address issues directly affecting the people, would need to be the responsibilities of the States, and the local governments, where the people have more control over governmental functions.
To achieve their goal, the Founding Fathers determined that the components of this new federal government, as opposed to being a national government, would need to be one with three separate branches of government, whose powers are separated so that no collusion between the branches would be possible, with numerous checks and balances to ensure no part of government wields too much power, have a limitation of authorities to the federal government granted by the States, provide due process of the law with the right of a trial by jury, and be a system that ensures that the federal government does not betray the unalienable rights of the people of the United States.
To achieve this, the Founding Fathers argued and debated heavily for four months in 1787. The result was the U.S. Constitution, a document like no other. The American Form of Government, through its constitution, would serve as a protector of the fires of liberty by preserving the union of states, and ensuring that individual freedoms and state sovereignty maintain a voice in the system. The nation would prosper, to the surprise of the world, and maintain its system of limited government for more than 200 years.
The original intent of the Founding Fathers was not for the American form of government to be a more centralized governmental system, where the central authority wields great power. When a system becomes centralized, the government uses its power to rule over the people through the rule of man. The rule of law, under such a system, is then transferred to the courts or a small group of powerful elites, and law becomes determined by the opinions of a few powerful men.
We the People have the duty to ensure that our governmental system does not operate outside Constitutional boundaries. It is our duty to protect our God-given liberty, and restore our Constitutional Republic. That journey begins with understanding the original intent of the Founding Fathers, and educating ourselves and our posterity about the principles of the U.S. Constitution. Only then will our government return to the system it was intended to operate under, namely, the rule of law.
Questions for Discussion:
1. What is the difference between the rule of law and the rule of man?
2. What is the difference between a democracy and a constitutional republic?
3. How would the United States be different if our founders chose to make this a land subject to the rule of man?
David Forte, The Originalist Perspective, The Heritage Foundation, September 16, 2009, Web memo #2617: http://www.heritage.org/Research/Reports/2009/09/The-Originalist-Perspective
Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Preamble is the introduction of the U.S. Constitution. The opening paragraph of the founding document holds no legal authority. The Preamble serves to establish who is granting the authority to create a new federal government, and the reasons for the decision. We The People of the United States are the grantors. In other words, the States, which were the embodiment of the people, were creating the federal government, and granting authorities to it so that it may function in a manner necessary to protect, promote, and preserve the union of States. The concept became known as federalism.
The Preamble is designed much like a form the doctor’s office may present to you to sign, giving the doctor the authority to perform necessary procedures on you in order to make you well. The form begins with your name (I, patient’s name), and then limits the doctor to only the procedures necessary to make you well. The doctor, if he or she believes that additional procedures may be necessary, must ask you before performing the additional procedures that are not granted by your original agreement with him/her.
Like the form in the doctor’s office, the Preamble begins with who is granting the authorities. “We the People of the United States” are the grantors of the authorities given to the new federal government.
Those first three words, “We the People,” come from the British traditions of freedom. The Magna Carta and the English Bill of Rights refer to “Freemen.” Any freemen had rights, and no man, including the king, is above the law. That philosophy, introduced by the Saxons, was still in the blood of the Englishmen, and it was from “Any Freemen” that “We the People” was developed.
The words “United States” appear often in the U.S. Constitution. When those words appear in the text of the Constitution, they mean one of two things. Either, “United States” is a reference to the new federal government, or means “these states that are united.” In the case of the Preamble, both definitions are used. As we notice the first time united States appears in the Declaration of Independence, “united” is not capitalized. This was the common opinion of the people of that era. America was not a nationalistic country dominated by a powerful government, but a union of States that are sovereign, autonomous, and individual - like the people. We the People are the individual parts of their States, and the States are the individual parts of the union. Participation is voluntary, and necessary in order to ensure the security of the union.
“We in America do not have government by the majority - we have government by the majority who participate… All tyranny needs to gain a foothold is for people of good conscience to remain silent.” -- Thomas Jefferson
The first instance in which “United States” appears in the Constitution is in the Preamble. The beginning of the Preamble reads: “We the People of the United States” - meaning: The people of the States that are united. As we learned earlier in our lessons, the early Americans saw the United States in the plural, rather than as a singular nationalistic entity. The people were citizens of their states first, but realized that the States must be united to survive as a union. So, the people in the States that united decided to do so for the purpose of survival. The individual States would only be safe if they all worked together as a united country. To ensure the union was protected they proposed forming a central government through a contract called the United States Constitution. This contract, or agreement to grant limited authorities to a federal government, was designed to ensure that the federal government remained limited so as to not infringe on the individual rights of the sovereign States, and the people who resided in those States.
The granting of authorities to the new federal government was a decision made for a number of reasons, and as was customary of the founders, the reasons for forming the federal government are listed in order of importance in The Preamble. The reasons for forming a new government were “In Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”
The most important reason for the formation of the federal government, the main purpose for the creation of the U.S. Constitution, was “in Order to form a more perfect Union.” A union already existed under the Articles of Confederation. A confederation, however, is a weak form of government. A confederation is an association of sovereign member states that, by treaty or other agreement, have delegated some of their powers to a common institution in order to coordinate policies, without constituting a new state on top of the member states. The government under the Articles of Confederation, however, proved to be too weak to protect the union. Therefore, the founders realized that they needed to form a more perfect union, one with more authorities, while still remaining fairly limited in its power and scope.
As you read the Constitution, you will notice that all of the authorities granted to the federal government are limited to the protecting, preserving, or promoting the union. The federal government was granted the authority to maintain an army and navy in order to protect the union from invasion, to collect taxes in order to pay for that military and the other necessary functions for preserving the union, to regulate commerce by acting as a mediator between the States so that the flow of commerce flows regularly in order to encourage a growing economy for the union, establish a uniform rule of naturalization for the purpose of ensuring the union grows through legal immigration, to establish post offices so that the many parts of the union can remain in contact with each other, and so on and so forth. The federal government was created for the sake of the union.
The second reason listed in The Preamble for the creation of the federal government through the ratification of the U.S. Constitution was to “establish Justice.” Note that the word “establish” is normally used in situations where whatever is being established never existed prior. The word “establish” being used in the Preamble, then, leads us to believe that there was no justice prior to the writing of the founding document. However, we are well aware that justice did already exist in each of the States, through State court systems. Therefore, we must conclude that the U.S. Constitution was not written to establish justice in the States, but to establish justice at the federal level where a judicial system had not previously existed. Once again, language has provided for us a clue to the original intent of the Founding Fathers. One must also remember that during the debates of the Constitutional Convention in 1787, there was actually a consideration to not establish a federal court system. The delegates realized that tyranny more easily flowed through an activist judiciary. The rule of law could be easily compromised by a judicial branch not willing to abide by the original intent of the U.S. Constitution. For this reason, the powers of the judicial branch are greatly limited by the Constitution. We will go into more detail regarding those limitations when we get to Article III, and the 11th Amendment.
The first two reasons for the writing of the U.S. Constitution, according to the Preamble, was to form a more perfect union through the formation of a federal government, and to establish justice by creating a federal judicial system. It seems reasonable to assume, based on those primary goals, that the Constitution was not written to grant powers to the States (for the States already held all of the authorities for governance), but for the purpose of creating, yet limiting, a newly formed federal government, which was designed to serve the States by protecting them, and preserving the union they enjoyed. Before the States delegated some of their own powers to the federal government through the Constitution, those powers belonged to the States. The States, however, only granted “some” of their powers to the federal government, retaining most of the powers for themselves.
The U.S. Constitution, and all language within the document, is directed to the federal government, not to the States, unless specifically indicated otherwise. This is because the States essentially “hired” the federal government to protect and preserve the union. The contract that authorizes the federal government to exist and receive the authorities from the States is the U.S. Constitution. Therefore, it would be foolish to assume that the provisions of the Constitution are to be applied to the States as much as it is foolish to believe that an agreement between you and your doctor tells you what you can and can’t do regarding the procedures that are about to be performed on you. The agreement with the doctor is specifically designed to tell the doctor what procedures are allowed, just as the Constitution is specifically designed to tell the federal government what authorities it is allowed to have in order to protect, preserve, and promote the union. In that contract with the doctor there may be things in it that tell you what not to do so as to not undermine healing. The same is true in the Constitution. There is a section, Article I, Section 10, that tells the States what they are prohibited from doing. These prohibitions were necessary to ensure the States did not interfere with federal functions.
Since it is We The People of the United States that granted the federal government its powers, that means it is the people’s, through the States, responsibility to ensure the federal government acts in a constitutional manner. The Constitution is nothing more than ink and paper if we don’t fight for it.
The union, at the time of the writing of the Constitution, was fragile. The States, as colonies, or as states shortly after the American Revolution, never got along too well. They had their own cultures, religions, and laws. They fought over turf, commerce, and anything else you could think of. The States were much like siblings, fighting over everything under the sun; but when it came down to brass tacks, they were united when it came to defending each other.
The bickering between the States created an atmosphere that placed the cohesion of the union at risk. Therefore, when it came to creating a more perfect union, it was understood that one of the tasks of the federal government would have to be to ensure the States got along, too. Hence, the reason for the Preamble also indicating that the Constitution was written to “insure domestic Tranquility” and to “promote the general Welfare.”
What those two phrases meant was that because the States didn’t seem to get along too well, the federal government was expected to ensure there was tranquility between the States by acting as a mediator in disputes. Part of that task by the federal government was to also promote the general welfare of the republic. In other words, make sure the squabbles did not place, while also protecting the union, so that the welfare of the union would not be in jeopardy.
If the founders meant for the federal government to create a nanny state of entitlement programs with the term “general Welfare,” not only would they have then created a system of that sort back then, but they would also have changed the wording to read “individual welfare.” Of course, we must remember that The Preamble holds no legal authority, so the actual General Welfare Clause that has caused so much debate is actually located in Article I, Section 8.
General Welfare, as it is presented in the Preamble, is capitalized in a curious manner. Welfare is capitalized, but the word “general” is not. Capitalization in the Constitution was often for the purpose of emphasis. With that tendency as our guide, it is reasonable to see that “Welfare” was the key component when these two words were presented in the Preamble. The Founding Fathers were seeking “Welfare” with a capital “W.” But what kind of Welfare were they looking for? Anything specific? No. The founders tasked the federal government with the duty of ensuring there was Welfare in the nation in a general manner. Or, you could say that they wanted the atmosphere in general to be one of “Welfare,” or “all’s well.”
In The Preamble, tucked between “insure domestic Tranquility” and “promote the general Welfare” is the phrase: “provide for the common defence.” In other words, almost as important as ensuring peaceful cooperation between the States, and slightly more important than promoting the general Welfare of the republic (and perhaps a part of ensuring the general Welfare), was the duty of the federal government to provide protection for the union through a military.
The need to provide for the common defense, one may note, was not listed first in The Preamble as one of the reasons for the creation of the federal government. The Founding Fathers, though they recognized the importance of the federal government to field a military force, as realized from the failure of the government to put down insurrection during Shays’ Rebellion under the Articles of Confederation, did not list the need to provide for the common defense at the beginning of the Preamble because a country that places too much importance on a military is doomed to become a police state. Defending this nation was not placed at the bottom of the list either because a nation that refuses to defend itself ultimately becomes a conquered entity that is subject to the authority of a foreign government. Despite the fear of a powerful military that could be used against the people and the States, providing for the common defense was still indeed one of the primary reasons for creating the federal government in the first place. That is why “provide for the common defence” is listed in the Preamble within the depths of the body of the paragraph.
The final reason for the writing of the Constitution was to “secure the Blessings of Liberty to ourselves and our Posterity.” The presence of the word “Blessings” reminds us that the Founding Father’s grateful spirit recognized that the result of the American Revolution, and the inspiration for this new government, could have only come from the favors of Divine Providence. Liberty, remember, is one of the unalienable rights listed in the Declaration of Independence that has been given to us by The Creator. In fact, that is one of the foundational beliefs of the original intent behind the creation of the federal government. Our rights are granted to us by God, not by government, for if our rights are granted to us by government, government could then take those rights away.
Sometimes, when I ask somebody what they believe to be the main reason for the writing of the U.S. Constitution, more often than not the response is, “To protect our rights, liberty, and property.”
That is actually an incorrect answer, as we have just discovered by studying The Preamble. Though protecting our rights, liberty, and property are among the reasons that the Constitution was written in the manner that it was, those are not the reasons for the creation of the founding document, and thus the reasons for the creation of the federal government.
As indicated in the Preamble, the primary reason for the Constitution is The Union, but the very formation of that union was not for the sake of the union, but to ultimately protect the sovereignty of each component of that union - The States. However, by creating a federal government, the Founding Fathers realized that they were opening up the potential for the governmental system to become a tyranny. Therefore, in order to protect the rights, liberty and property of the people (more specifically to “secure the Blessings of Liberty to ourselves and our Posterity”), the federal government needed to be limited in its authorities by the rule of law. The law of the land in which the governmental system is limited to, in the case of the United States, is the U.S. Constitution.
Federalism: Government in which the central government’s power and authority is limited by local government units, and where each unit is delegated a sphere of power and authority only it can exercise, while other powers must be shared. The term federalism comes from the Latin root foedus, which means "formal agreement or covenant." It includes the interrelationships between the states as well as between the states and the federal government.
Unalienable Rights: Incapable of being alienated, that is, sold and transferred. You can not surrender, sell or transfer unalienable rights, they are a gift from the Creator to the individual and can not under any circumstances be surrendered or taken. All individual's have unalienable rights.
Questions for Discussion:
1. Many of us were taught to memorize the Preamble in school, others remember it because of the School House Rock cartoon on Saturday mornings, but growing up how many times were we taught what it means?
2. Federalism, or the belief in a central government limited by the authorities granted to it in the Constitution, began as a wonderful idea. The “Federalist Party,” however, were not satisfied, and desired the federal government to have more authorities than it was granted. Why do you think this is true?
3. Why did the Founding Fathers only desire the federal government to be granted powers that regarded the union, and not authorities in regards to other issues?
4. The judicial branch was supposed to be the weakest of the three branches. Why do you think the Founding Fathers wanted to limit the judiciary to such an extent?
5. One of the founding principles is that our unalienable rights are given to us by the Creator. Is it a coincidence that historically most authoritarian governments that sought to take away the rights of the individual did it either by taking control of the church, or by rejecting religion/the existence of God?
6. At what point does a government take “provide for the common defense” too far?
James L. Roark, Michael P. Johnson, Patricia Cline Cohen, Sarah Stage, Alan Lawson, and Susan M. Hartmann, The American Promise: A History of the United States; Boston: Bedford/St. Martin’s (2009).
James Madison, Federalist No. 41: General View of the Powers Conferred by The Constitution, http://www.constitution.org/fed/federa41.htm
Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Larry Schweikart and Michael Allen, A Patriot’s History of the United States; New York: Sentinel (2004).
Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Philip B. Kurland and Ralph Lerner, The Founder’s Constitution - Volume Two - Preamble through Article I, Section 8, Clause 4; Indianapolis: Liberty Fund (1987).
Copyright: Douglas V. Gibbs, 2014