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 9^th 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 9^th 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

3/19/2012