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Dec. 2006wpe9.jpg (4515 bytes)Edition 88

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THE FOUNDATION OF AMERICAN GOVERNMENT

DECLARATION OF INDEPENDENCE, CONSTITUTION and FEDERALIST PAPERS

I honestly suspect that less than 10% of Americans have ever read the critical documents that define our republic, including the Declaration of Independence, the Constitution, or the Amendments that followed. The process of creating these documents was not some whimsical “fly-by-night” operation. The delegates spent 4 months debating and thrashing about at the Constitutional Convention until they arrived at the final wording.  Let me be very clear about this.  The Founding Fathers decided that America should be a republic and NOT a democracy.  The difference being that in a democracy the people vote directly on all issues.  With modern technology, that’s what we should be doing as a nation.

 Although many Americans are not aware of their existence, the Federalist Papers, a collection of hundreds of papers written by Alexander Hamilton, James Madison and John Jay offer great insight into the birth of our nation. The purpose of the Federalist Papers, which were written by the same people who wrote the Constitution, was to gain support from the people to justify the new government. In actuality, this was likely the first massive printed public relations campaign in history.

 During this time frame, New York had become an independent nation under the prevailing Articles of Confederation. The Articles of Confederation was the first governing document of the United States of America that combined the colonies of the American Revolutionary War into a loose confederation after we threw out King George. Alexander Hamilton decided that a massive propaganda campaign was necessary for the American people to “buy” into the new Constitution, if for no other reason then to convince the people of New York more so than any other nation state. I can’t help wondering, if New York had maintained its status as an independent nation, would the Staten Island Ferry be viewed as its ship of state? 

 James Madison, widely recognized as the Father of the Constitution, would later go on to become President of the United States, as would Thomas Jefferson. John Jay would become the first Chief Justice of the US Supreme Court and Alexander Hamilton would serve in the Cabinet and become a major force in setting economic policy for the country.

Based upon recent state and Federal Supreme Court decisions, the very foundation of our democracy is being shaken to the core. This knowledge base of our laws has nothing to do with Republicans or Democrats or conservatives or liberals. It’s an issue we all need be concerned about. We need to be extremely knowledgeable in our country’s legal mechanisms so we may take issue with these illegal decisions that are being fostered by the liberal political base that mandates many of these diabolical acts. If nothing else, take a few minutes and read or browse the Declaration of Independence, Constitution and Amendments so you can appreciate the tremendous wisdom imparted by the individuals who created these marvelous documents.

The Federalist Papers

The Federalist Papers are a treatise on free government. The combined papers or essays demonstrate a vision on constitutional democracy and Federalism. The delegates looked to the states and not the existing interim government for ratification of the new Constitution and government. Let’s be clear on one point. Not everyone supported the idea of the new constitution. There was also a strong Anti-Federalist movement afoot at the same time. There was much quibbling and arguing for we must remember that this was a politically revolutionary concept that the new nation was spawning.

 Philosophically, the papers emphasized the need for security from foreign intervention, for peace throughout America; fear of the mob mentality, and above all, individual freedom. A very important point is that the Founding Fathers as a group were extremely educated men who were very aware of the pros and cons of the previous democratic republics in Greece and Rome. In their mind, the new republic would need to avoid the pitfalls of these prior attempts at true democracy in order to succeed. They debated long and hard differentiating the merits of a true democracy, wherein the people vote directly on all matters of state, versus a republican form of government.  One of their main concerns was how to defend liberty in a republican form of government over the large geographic area of the United States. Remember that in the infancy of the new republic, travel was by horse or stagecoach. This in itself is why the idea of elected representatives became paramount in their minds, as it was unrealistic to expect citizens to travel to Washington to vote on every issue. That was then; this is today. With emerging technologies, we can view the need for elected representatives from a vastly different viewpoint and hopefully eliminate much of the power and corruption inherent in our career politicians. But I will delve into that point in the 10-point plan to return the government to the people.

 In summary, a careful review of these papers reveals that the innermost concerns of Jay, Hamilton, Madison, and Jefferson were focused on the following salient points:

On one hand, the thought was that there was no need for a strong Federal government as the country was already united by natural boundaries of geography, speech and a belief in God; while on the other hand, there was great concern that a strong Federal government is necessary to regulate conflict and administer law. In addition, there was concern that under a loose confederation, the states would divide into separate political entities, and have frequent and violent contests with one another. Therefore, a balance was needed.

There was also the utmost need for equal balance and independence between the three branches of the government: the executive (President); the legislature (Senate and House of Representatives); and the judicial (Supreme Court). Although the three branches must be independent entities, each must have sufficient power to impose restraints over the other two.

Neither Hamilton nor Madison wanted the individual states absorbed entirely into a national government. At that time, it seemed inconceivable to them that the national government would want to interfere with local governments. How wrong they were!

There was a strong impetus for a professional standing army controlled by the national government, not so much because they were necessarily afraid of foreign intervention and wars, but the need was to enforce its laws and control internal conflict (“mob rule”) between states and individuals.

One of the most significant characteristics of these papers is that this diverse group of people writing these essays seemed to have one sense as to the powers of the Federal government.  Its responsibilities were relegated to the formation and maintenance of a large standing army, a legislative body and the present day Supreme Court. No discussion whatever can be attributed to any of the papers wherein the authors enlarged the scope of the Federal government to include many of the issues that have been assumed (or forcibly overtaken) by the Federal government today including health care, social security, education, housing, abortion, labor laws, and many other important topics. By inference, it can be said that the creators of the Constitution felt that all of these issues were the responsibility of the individual states or local councils comprising the union.

The Declaration of Independence

The Declaration of Independence focused mainly on announcing to King George of England that the people of America would no longer tolerate rule by the British government.

 Note that you may find what you consider to be spelling errors, such as “shewn (shown)” and “defence (defense),” in both the Declaration of Independence and the Constitution, but in those days some words were spelled differently from today’s accepted version.

Examining Critical Phrases of The Declaration of Independence

Let’s examine a few of the critical phrases (or clauses in lawyer talk) that are pertinent to many of the issues being debated or illegally distorted by the courts today:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”

“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government laying its foundation on such principles”

“That these United Colonies are, and of Right ought to be Free and Independent States;” and “they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”

 Remember the phrase, “We hold these truths to be self-evident, that all men are created equal,” because it will justify many of the arguments on subjects such as Affirmative Action.

 The Founding Fathers recognized that since the new government they were creating was potentially fallible, they brazenly stated that it if that government becomes destructive, is the right of the people to abolish it and institute new government.

 Most importantly, note the use of the phrase, “Independent States” in at least two clauses. No mention is made of a central government, as it exists today.

The Constitution

As with the Declaration of Independence, I doubt if but a few select individuals have ever read the Constitution, if for no other reason because of it’s sheer volume. Take a few minutes and learn about the wisdom our forefathers demonstrated in the 1770’s.

Examining Critical Phrases of The Constitution

The Constitution explicitly defines the responsibilities of the Federal government. A summary of these responsibilities follows:

 None of the responsibilities identified in the above list makes any mention of healthcare, social security, education, housing, abortion, labor laws, and many other “hot” topics for which Congress debates, passes new laws and allocates funds.

Amendments to the Constitution

One of the most powerful features of the Constitution was that it recognized that as the country grew and values changed, future Americans could modify the Constitution via amendments (see Article V of the Constitution). 

 Over 10,000 Constitutional amendments have been proposed in Congress since 1789. Rarely do any of these proposals make it through Congressional committee, much less get passed by the Congress. Of the thirty-three amendments that have been proposed by Congress, six have failed ratification by the required three-quarters of the state legislatures (leaving 27) — and four of those six are still technically pending before state lawmakers.

 The first ten amendments are also referred to as the “Bill of Rights.”

 There is only one clause of importance, Article X, in these amendments that affect the power sharing arrangement between the Federal government and the states:

“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."

This is a very important point. This clause very clearly states that if a specific power is not delegated to the United States (read Federal government), then the states are responsible for that power.  Again, there is no mention of social security, education, housing, abortion, labor laws, gun control, drug wars, regulating utilities, etc. The list could go on and on ad infinitum.

Constitutional Amendments

Article [I.] (1789)

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article [II.] (1789)

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Article [III.] (1789)

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article [IV.] (1789)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article [V.] (1789)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article [VI.] (1789)

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Article [VII.] (1789)

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Article [VIII.] (1789)

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article [IX.] (1789)

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

Article [X.] (1789)

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.

[Article XI.] (1795)

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

[Article XII.] (1804)

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. (See Note 14)--The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Article XIII. (1865)

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Article XIV. (1868)

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,(See Note 15) and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Article XV. (1870)

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Article XVI. (1913)

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Article XVII. (1913)

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Article XVIII. (Subsequently repealed by the XXI article) (1919)

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Article XIX. (1920)

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Article XX. (1933)

Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section. 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section. 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section. 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section. 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section. 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Article XXI. (1933)

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Amendment XXII (1951)

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress.

Amendment XXIII (1961)

Section 1. The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment XXIV (1964)

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment XXV (1967)

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Amendment XXVI (1971)

Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

Amendment XXVII (1992)

No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.

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