Tuesday, March 27, 2012

The Founding and the Defining of the United States of America

Part 3

            Seems like every discussion on the Bill of Rights leaves out one very important part of the Bill of Rights, the Preamble.  In truth, many people have no idea that there even is a Preamble or what it means.  I would even venture to guess, that among those that do know there is a Preamble to the Bill of Rights, there are very few that know why there is a Bill of Rights.

            During the writing of the Constitution of the United States between May and September of 1787 many of those in attendance believed that the Constitution should start with a Declaration of Rights similar to what the Virginia Constitution contains, others believed this to be unnecessary as those rights were inherent to every man.  During the ratification process for the Constitution, Virginia and New York held fast to the belief that the Constitution had not gone far enough to restrict the powers of a central Government.  Originally twelve Amendments were proposed to Congress in 1789 to become a Bill of Rights, of the two not included in the Bill of Rights one, concerning compensation for Congress, became the 27th Amendment 201 years later, the other, concerning number of representatives, was never ratified.  The remaining proposed Amendments were to become the Bill of Rights as we know them today.  Following the writing of the Bill of Rights North Carolina and Rhode Island finally ratified the Constitution to become the 12th and 13th States respectively in 1789 and 1790, the Bill of Rights were not ratified until 1791.  Now that we have the Readers Digest version of the development of the Bill of Rights let’s get back on subject, the misinterpretation and misunderstanding of the Bill of Rights.

            The Preamble is a very simple straight forward statement;
“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”
Note the use of the words “to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added”.  While the framers of the Constitution believed the rights that are stated in the Bill of Rights were inherent to every man, they knew the prevailing opinion was that without putting restrictions on the Government in writing, those rights would be infringed.  With that in mind one must read the Bill of Rights as less of a statement of rights and more as a statement of restrictions on the Federal Government.  Again notice that I used the phrase Federal Government, not just Government in general.  A State is a sovereign Nation; the United States are a group of sovereign Nations joined together for common defense and interests.  The Federal Government of the United States does not have total dominion over the States, only over those enumerated powers in the Constitution that are in the common interest of all the sovereign States.  The Bill of Rights does not apply to the States, plain and simple, the individual States have their own Constitutions that apply to only their respective States, not to their neighboring States, many, if not all, of those Constitutions include a Declaration or Rights but not all include the same rights.

            The omission of the Preamble at the beginning of any discussion about the Bill of Rights ultimately leads to the misinterpretation and misuse of the Bill of Rights; it leads to what is commonly referred to as incorporation.  Incorporation is when the Bill of Rights is used against the States; the best example of this is the 1st Amendment as it applies to religion.

Amendment I
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.

It seems like this Amendment is very clear, yet when it is used the very first word of the Amendment is left out, “Congress”.  It does not say the States or any Government; it says Congress shall make no law.  There was to be no National Religion, this does not mean the individual sovereign States could not have a State religion if the citizens desired to have one, it simply meant that the Federal Government would not impose one on every State.

            The same is true with all of the first ten Amendments of the Constitution.  The Bill of Rights is not a Bill to be used by the People of the United States to further personal agendas; it is a restriction on the Federal Government only.  The 9th and 10th Amendments go hand in hand with the Preamble, unfortunately they are seldom even thought about.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
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.
The 9th Amendment is very straight forward, the People retain inherent rights, and the enumerated powers of the Constitution do not deny these rights.  The 10th Amendment sums it all up, powers not enumerated in the Constitution are reserved for the States or the People, the People are to keep the States in check and the States are to keep the Federal Government in check.

            The sad truth is that the American People and the States within the United States have become lazy, they have allowed the Federal Government to overstep their powers as enumerated in the Constitution and restricted by the Bill of Rights to usurp the powers that were to be retained by the States and the People.  Whether this has been done by a lack of personal responsibility on the part of the State Governments or by slick political moves to create a stronger central Government I can not say, I can say that what it leads to is a tyrannical Government that can and probably will take away those rights that are inherent to all men.
Steve Avery

Monday, March 19, 2012

The Founding and the Defining of the United States of America

Part 2

            Before you can even begin to understand the Constitution you need to understand that the Constitution and the Declaration of Independence are tied together.  Without the Declaration that created the United States of America there would be no need to have a Constitution of the United States.  The Constitution is the second incarnation of the States to form a Government, the first being the Articles of Confederation.  The Articles of Confederation were too loose as far as the relationship between the States and the Federal Government, hence the birth of the Constitution.  If the Declaration was to be considered the heart of the United States then the Constitution would be the soul.  While the Declaration of Independence actually formed the United States out of 13 British Colonies, the Constitution pulled those 13 Colonies into a Union of sovereign States.  Just like the Declaration the Constitution has been misinterpreted and misunderstood throughout the history of the United States.

            One of the greatest misunderstandings is just exactly what legal weight the preamble to the Constitution carries.  Take a look at this court transcript (yes I made this up to use as an analogy so just let it fly that I may not have gotten all the jargon correct):

On this day the 5th day of the May in the year of our Lord 1883 in the court of Precinct 6 in Pecos County, TX with the Judge Roy Bean residing, hereafter referred to as the court, over the case of the missing 10 gallon hat.  California Carlson, hereafter referred to as the plaintiff, claims that one Poncho, hereafter referred to as the defendant, either has information on the location of his missing 10 gallon hat or actually has possession of said hat.  Hear ye, Hear ye court is now in session.

If you were to read this you would only know that a trial in Precinct 6 of Pecos County, TX was being held to determine whether or not Poncho actually had possession of or had knowledge of the location of California Carlson’s hat, nothing about Poncho being guilty or whether or not Judge Roy Bean sentenced him to hanging, he was known as a hanging judge after all, all you have is an introduction into the trial telling you what the trial is all about.  The same is true about the Preamble to the Constitution, it only tells us what the Constitution is attempting to accomplish, and there is no legal binding to the preamble.  The most common error is trying to interpret “promote the common welfare” to mean we will take care of you from cradle to grave, not at all, it only means that the Federal Government will attempt to establish conditions that promote the common welfare of the Nation as a whole, in fact look closely at the Constitution and you will find very few references to the “People” of the United States.

            The idea that the Constitution was established to protect the citizens, the “People”, of the United States is another misconception; in fact the “People” are rarely mentioned in the Constitution.  The Constitution was written to establish a Government that pulled together the resources of the now 13 States, and subsequently the States that were formed later, in order to do those things that the States could either not do, or that were better done by a pooling of resources.  The States maintained all other powers, the States were formed by the People and the States formed the United States.  At the Virginia ratification debates for the Constitution of the United States Patrick Henry argued this very point,

“My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask who authorised them to speak the language of, We, the People, instead of We, the States? States are the characteristics, and the soul of a confederation.”

            Another area that is of constant misunderstanding or misinterpretation is Article I, Section 8, the enumerated powers of the Congress.  It is true that these are not the only powers the Constitution gives to the Congress but these are the powers that have the largest effect on the United States as a whole, the last of these enumerated powers is the one that is misused the most,

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Notice the wording; it states that Congress can only make laws that are necessary and proper as they relate to the enumerated powers, not at their discretion, or lack thereof, in any area they please.

            Article III establishes and defines the Supreme Court and its powers.  In Article III Section 2 it plainly states that the Judicial Power applies only to those cases that arise under the Constitution, the laws of the United States; which are the laws the Congress may write to carry out their enumerated powers, and the Treaties that are made by the United States; which will only be made with the advice and consent of the Senate as long as two thirds of the Senate concur.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.

            The so-called supremacy clause is another area that is interpreted to suit the need, not read and understood as it is written.  The supremacy that Article VI refers to are the laws that are made in pursuance of the Constitution, meaning the laws that Congress is authorized to write to support the enumerated powers of Article I Section 8.  It further states that all Judges in all States are bound by these; unfortunately case law seems to teach us otherwise. 

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Unfortunately Judges both at the State level and the US Circuit Court level try to incorporate the Constitution into State Law while our Supreme Court Justices interpret laws and rulings as they wish to support the agenda of incorporation, incorporating the Bill of Rights to override State Constitutions, and their personal views.  In many cases that are currently heard at the Supreme Court level and at the US Circuit Court level the first question should be, how does this apply to the Constitution and the Federal Government?  The next statement should then be, case dismissed or the case is to be heard at the State Supreme Court level.  A good example of this was when California passed Prop 8 banning same sex marriage.  They did it in accordance with the Constitution of the State of California.  The US 9th Circuit Court of Appeals ruled that the Amendment to the California State Constitution violated the United States Constitution.  This is incorporation; the United States Constitution has no binding or legal standing on an Amendment legally voted in by the citizens of California that affects only the residents of California.  This argument is in no way an argument about my stance on same sex marriage, if the Amendment had been written in favor of and the 9th Circuit Court had ruled against that I would present the same argument.

There are many more instances of either misunderstanding or misinterpreting of the Constitution that could be pointed out.  One of the roots of the problems we are now facing in America is the fact that Americans in general do not understand the Constitution, if they even know we have one.  They do not understand that our Government has a written set of rules they are to follow and they do not understand how violation of these rules can adversely affect them in the long run, well we are coming to the end of that long run.  A major issue in the political arena is the education of our children.  Our children are not, and have not been, taught the Constitution and how it applies to the Federal Government, State Governments and to the People of the United States.  There is a dark spot in our history when it was illegal to educate certain groups of people within our borders for fear that if educated they would realize they had rights, rights that were unalienable, rights granted to them by their creator that would empower them to rise up against their bondage, sound familiar?  Is that not true today also?  The citizens of today believe that the Constitution is what gives them their rights; the Constitution only prevents the Federal Government from infringing on these rights, being a person is what gives them their rights and with rights comes responsibilities.  Unfortunately the citizens of the United States of America today do not want responsibility; they want to be taken care of from cradle to grave.  The citizens of the United States of America today are ignorant of the Constitution.

Steve Avery

Monday, March 5, 2012

The Founding and the Defining of the United States of America

            Throughout the history of written language there have been documents that have been misinterpreted, misunderstood or just flat out ignored.  Sometimes the misinterpretations and misunderstandings can be attributed to changes in language over a period of time or from being incorrectly translated from either a foreign language or an older language that is no longer used.  Probably the best example of this would be the Holy Bible.  Fortunately, at least for the purpose of this writing, the Bible is more focused on an individual and their personal beliefs and salvation.  The documents I am concerning myself with are the documents that we as Americans refer to as our founding documents, the Declaration of Independence in Part 1, the Constitution of the United States in Part 2, and the Bill of Rights in Part 3.

Part 1

            In my very humble and uneducated opinion the most important of these documents is the Declaration of Independence.  The Declaration came about after the Colonists believed they had exhausted every possible means they had at their disposal to settle their differences with Britain.  In the Declaration they laid bare their argument and reasons for desiring separation from England.  The first paragraph alone explains what they were doing and why.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

They continue by stating what they believe to be the rights of man and where these rights come from.

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 to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.        

From there they go on to state their case and explain that this was not a decision that came about easily, it was not, in common terms of today, a knee jerk reaction to a few wrong doings, in fact they state many examples of the abuses that led them to this monumental decision, in fact the list of abuses was actually shortened from the original draft.  The Declaration of Independence is the document that forms the United States, it is the first document to use that name, and therefore it is the founding document for the United States.

            Much of the Declaration was taken from Virginia’s Declaration of Rights.  One of the important changes that was made by the Continental Congress was to change “life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety” from Virginia’s Declaration to “Life, Liberty and the pursuit of Happiness”.  The Continental Congress desired that slavery in the United States should end, therefore they did not want wording in their founding document that could be later used against them, and argument that even the founding document was allowing the ownership of slaves since they were considered property.  Here is one of the misinterpretations or misunderstandings of the Declaration of Independence, our founders wanted to see the end of slavery, granted they did not outright outlaw it, they felt it would end in due time without a fight and without misgivings from the Southern plantations that depended on slavery at that time.  The Declaration also clearly states that the above stated rights are unalienable rights granted by their creator, not by the British Government or any other Government, in fact the roll of Government should only be to secure these rights with the consent of the governed, the People.  Within the list of abuses are many examples of abusing the People unalienable rights perpetrated by the Crown.

            In the final paragraph of the Declaration of Independence there are numerous key statements, a few of which I will touch on here.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, 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. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
Other then in the title this is the first place the Colonists use the United States of America, here is where they have declared the founding of a new Nation.  In that same line the Declaration clearly states that the united colonies are “Free and Independent States”, each and every colony is a separate and independent State, which in that time meant they were independent Countries.  In this one paragraph the Continental Congress founded a Nation and declared that Nation to be a Union of Free and Independent States.  We seem to have forgotten that fact, in truth we seem to have forgotten nearly everything about the founding of this Nation, including the abuses that were heaped on the People of the Colonies that led them to this separation, a separation that they could not guarantee would succeed, but it was worth the chance, as they so elegantly stated in the final sentence, “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”  I know that within the borders of this Nation we still have lives and fortunes, but do we still have sacred honor?

Steve Avery