America – Your Republic Lies in Ruins!

In Federalist 51, James Madison stated “Justice is the end [i.e., goal or purpose] of government.  It is the end of civil society.  It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”  As we see the abuse of power wielded by the FBI, the Department of Justice, and perhaps others in the Obama administration over the fourth amendment rights of those involved in the Trump presidential campaign, we must demand that justice against those who mishandled their public trust be brought to justice, else, as Madison warns, liberty for all of us will be lost.

However, in trying to bring justice back to being the foundation of our government and our society, we must look deeper into how it was that justice came to be lost.  Baron Charles de Montesquieu began the opening of Part I, Book 8 in his monumental work, The Spirit of the Laws (published 1748), with these words:  “The corruption of each government almost always begins with that of its principles.” 

This then leads us to ask what principles within our government have been corrupted that led to its current state of corruption?  To answer this question we must return to the principle that motivated our founders to take that step for freedom and independence, namely that “all men are created equal, that they are endowed by their Creator with certain unalienable rights.”  The import of this phrase is that all men are therefore to be treated equally, which is the essence of the concept of justice.

How then is justice for all to be achieved (as we say in the closing of our pledge of allegiance)?  This question was answered by Frederic Bastiat in his treatise The Law in 1850.  He posits the question repeatedly “What is the law?”, to which he consistently gave a one word answer:  “justice.”  Putting this all together we have the principle that justice can exist only when all men are treated as they were created, namely, equal under the law.  When those of a supposed “higher class” are given a pass for violations of law that others would suffer severe punishment, then the principle of justice has died and along with it the principle of a representative government.

Returning to Montesquieu, he went on to give this analysis of how to reverse this situation when it occurs within a republic:  “When a republic has been corrupted, none of the ills that arise can be remedied except by removing the corruption and recalling the principles; every other correction is either useless or a new ill” (Part I, Book 8, chapter 12).

How then are we to remove this corruption and return to our principle of justice?  To answer this question we must look at who has brought about this corruption.  In chapter 5 Montesquieu gave the answer:  “Aristocracy is corrupted when the power of the nobles becomes arbitrary; there can no longer be virtue either in those who govern or in those who are governed.”  Indeed, do not most of those in Congress, and especially in the higher levels of bureaucratic power, act aristocratically as though they are nobility?  This is what happens when those who are given the reins of power refuse to relent them to others and remain in office year after year.  Montesquieu continued, “Extreme corruption occurs when nobility becomes hereditary; the nobles can scarcely remain moderate.”  We claim that we do not have nobles and hereditary claims to the right of power and position, but when incumbency is the rule rather than the exception, and those serving in departments of the government make a career of it, then most certainly we do have a class of “nobility” that has become for all intents and purposes “hereditary”, and as a result, extreme corruption sets in.  Once this occurs Montesquieu states that “Corruption will increase among those who corrupt, and it will increase among those who are already corrupted.”

 If ever there was a time, then, to “drain the swamp” that has become our national government, it is now.  We as voters can do our part by voting our “nobles” and “aristocrats” out of their positions of power and encouraging their replacements to alter the laws so that those in these myriads of unconstitutional bureaucracies can be removed as well and their power over us be diminished.  The ruins of our republic can be rebuilt and rise like a phoenix out of the ashes, but the time is getting very, very short.

-February 9, 2018

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The Preamble VIII – “secure the blessings of liberty”

Of all the great quotes of our founding fathers, my favorite comes from Patrick Henry’s speech on June 5, 1788 during the debates in the Virginia Constitutional Ratification Convention.  In his speech he made the following comments:

“…for liberty ought to be the direct end of your Government…Liberty, the greatest of all earthly blessings – give us that precious jewel, and you may take everything else…Guard with jealous attention the public liberty.  Suspect every one who approaches that jewel.”

 Indeed liberty, the second of our unalienable rights immediately after that of life, is the greatest of all earthly blessings for without it individuals cannot have much of a life; they cannot pursue happiness or realize their dreams or potential.  So it is, then, that individuals form governments to achieve order and protection of their rights within their societies.  Liberty, then, ought to be the starting and ending point of government.

Yet how was government to achieve this goal of securing the blessings of liberty for Americans in 1787 and for us today, their posterity?  The answer is in the clause that follows – “do ordain and establish this Constitution for the United States of America.”  Our Constitution was designed to achieve precisely what Patrick Henry stated was the purpose of government.  Interestingly, though, when he gave that speech, he was speaking against the ratification of the Constitution as he feared it gave too much power to the central government and thus posed a direct threat to that precious jewel of liberty.

Yet how, exactly, is the Constitution to accomplish this goal?  The answer lies in the clauses that precede this one – by establishing justice, insuring domestic tranquility, providing for the common defense and promoting the general welfare.  When our national government limits itself to the specifics of these broad goals as developed in the articles and sections of the Constitution that follow the Preamble, it realizes this lofty goal envisioned by Patrick Henry; when it exceeds its limited, enumerated powers as delineated in the body of the Constitution, it not only threatens our liberty, it chips away at it.

I can think of no better way to wrap up this series on the Preamble than to reiterate those eloquent words above:

“…for liberty ought to be the direct end of your Government…Liberty, the greatest of all earthly blessings – give us that precious jewel, and you may take everything else…Guard with jealous attention the public liberty.  Suspect every one who approaches that jewel.”

 As the election season approaches, may we all go into the voting booth with an eye of jealous attention and suspicion towards those in whom we are trusting to guard our liberties.

-January 26, 2018

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The Preamble VII – “provide for the general welfare” (Part II)

As I commented last week (The Preamble VII – “provice for the general welfare” (Part I)), the phrase “provide for the general welfare” has wrecked more havoc upon our country and put more of our liberties and freedom in jeopardy than perhaps any other clause in the Constitution (other than perhaps the “necessary and proper” clause).  As I shared then, those who opposed the ratification of the Constitution back in 1787-1788 argued that this clause would be ripe for abuse by future politicians to put in place anything and everything they deemed to be good for “the general welfare,” and that is exactly what has happened.

So how do we convince members of Congress today that they are way out of their constitutional bounds with much, if not indeed most, of what they have done in inserting the government into our lives?  The answer does not come from some lowly constitutional blogger such as myself – us “mere citizens” have no standing in the eyes of these scoffers at constitutional restraints.  No, I have a better witness to rebut them – James Madison, commonly referred to as “the father of the Constitution.”

As one of the three authors of The Federalist Papers, he countered the arguments of the Anti-Federalists regarding their alarms over this phrase in essay number 41.  In addressing the use of this phrase in the opening of Article I, Section 8 of the Constitution which contains the “enumerated powers” of Congress, he clearly defined the role of the phrase:

“But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”

In other words, Madison is stating that the particular, itemized powers that follow in Section 8 of Article I are meant to define, clarify and limit the extent of the general phrase “to provide for the general welfare.”  So when the question is posited as to what and how is the general welfare to be provided for via the general government, the answer is to read the list of limited powers that follow that were granted to the Congress.  Anything therefore outside of that list that Congress involves itself in is instead of providing for the general welfare is destroying the general welfare.  When excessive debt is accumulated to fund the myriad programs that are outside the purview of Congress’ authority, when programs rob individuals of their sense of personal responsibility and steal the personal property (of any kind) of citizens, that is not promoting the general welfare of the country but rather destroying that which made the early Americans unique, special and prosperous at its founding.

So then, just as we learned in our high school English classes in regards to writing a composition, you begin with a thematic statement that is broad and general that paints the full picture of what the paper is to be about, and then the rest of the following paragraphs develop, define and specify what is intended by that thematic statement.  Such then is the meaning, and proper use and application of the phrase “provide for the general welfare.” Or as James Madison might say – “General Welfare does not mean ‘Anything you want!’”

-January 19, 2018

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The Preamble VII – “provide for the general welfare” (Part I)

Perhaps no more abused clause in all of the Constitution is this one regarding the “general welfare.”  It has been the excuse for the national government to get involved in forcing citizens to save for retirement via the social security tax, to health care, to you name it.  The clause is repeated in the opening of Article I, Section 8, which is important as I shall point out in Part II on this topic.  Interestingly, when the southern states seceded and formed the Confederate States of America, their constitution mirrored the US Constitution in many ways, but glaringly omitted any reference to providing for the “general welfare.”

To ascertain the meaning of this clause I will spend this and the next (or possibly two) essay(s) taking a look at how the founders viewed this clause and how they explained it’s meaning.   As I have pointed out in the beginning of this series on the Preamble, merely including this clause in it does not give any authority to Congress to do as they please in matters they determine to be for the “general welfare” as a preamble in not part of the Constitution as far as granting authority, but merely an introduction as to the purpose for those things enumerated within the Constitution.

This general welfare clause and the fear of its potential for abuse was one of the reasons those known as the “Anti-Federalists” opposed the ratification of the Constitution.  The first witness I set before you is the author known by the pseudonym “Centinel”, who wrote the following on October 5, 1787:

“The Congress may construe every purpose for which the state legislatures now lay taxes, to be for the general welfare, and thereby seize upon every object of revenue.”

Consider our situation today – how much of our income does Congress “seize upon” in taxes to provide for all of the programs it deems to be for the “general welfare” yet not authorized in the Constitution?  Does not Centinel’s warning ring true?

The next witness to warn about this phrase was the outstanding Anti-Federalist known by the pseudonym “Brutus.”  He had much to say about the potential for abuse of all three branches of government, and he has pretty much proved to be a prophet with unerring accuracy.  Herewith is some of what he had to say about this clause in his essay number VI, written on December 27, 1787:

“It will then be matter of opinion, what tends to the general welfare; and the Congress will be the only judges in the matter. To provide for the general welfare, is an abstract proposition, which mankind differ in the explanation of, as much as they do on any political or moral proposition that can be proposed; the most opposite measures may be pursued by different parties, and both may profess, that they have in view the general welfare; and both sides may be honest in their professions, or both may have sinister views…

It is as absurd to say, that the power of Congress is limited by these general expressions, “to provide for the common safety, and general welfare,” as it would be to say, that it would be limited, had the constitution said they should have power to lay taxes, etc. at will and pleasure. Were this authority given, it might be said, that under it the legislature could not do injustice, or pursue any measures, but such as were calculated to promote the public good, and happiness. For every man, rulers as well as others, are bound by the immutable laws of God and reason, always to will what is right. It is certainly right and fit, that the governors of every people should provide for the common defence and general welfare; every government, therefore, in the world, even the greatest despot, is limited in the exercise of his power. But however just this reasoning may be, it would be found, in practice, a most pitiful restriction. The government would always say, their measures were designed and calculated to promote the public good; and there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves.”

 It is very apparent, is it not, that the fears of these two founders regarding the abuse of this clause by those who were to come after them to justify the expansion of the power of government and the diminishment of individual liberties has indeed come to fruition?  So, what was the response by those who argued in favor of the adoption of the Constitution?  We will examine James Madison’ response in the next essay.

-January 12, 2018

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The Preamble – Part VI: “provide for the common defence”

Perhaps no greater danger threatening the thirteen states in 1787 was their weak ability to defend themselves against the more powerful European countries.  In 1775 when the War for Independence began, there was a rallying cry for liberty, yet even then only about one-third of the citizens answered that cry.  So, now that they were thirteen independent and sovereign states, there wasn’t as strong of a bond to unite themselves against invasions.

It is significant that the phrase begins with the words “provide for”.  During the War for Independence there was a constant shortage of supplies and funds for Washington’s army and it is an astounding feat that despite all of those shortages, America won its struggle for freedom.  Following the end of the war, as I’ve pointed out previously, cooperation among the states was even worse.  So it was necessary to have a stronger central government that had the authority to raise money to support an army and a navy so that all of the states could be defended as they would now be united under a common head.

The next term is also telling as it underscores my point in the preceding sentence.  Under the new Constitution the states now shared in each other’s interests of maintaining that freedom they had fought so hard to achieve.  What threatened one state now threatened them all, and all were committed to the defense of one another.  This could not have come about had there not been a common central authority that they had all acquiesced to on the certain limited matters outlined in the Constitution.

One of the primary reasons for which individuals form communities, out of which governments are created, is to provide for the defense of the individuals by a defense of the whole.  Thus was born the phrase, “United we stand, divided we fall.”

The final word, however, bears a brief focusing of our attention.  The Constitution was not created to forge a new government that would be imperialistic, seeking to conquer other nations, but rather solely for the security of America.  Unfortunately, we have at times veered off of that track, but it is important for us to remember in this day and time that the Constitution was formulated to provide for our defense, not to seek democratization of the world through misguided “nation building.”  Our founders never intended for us to become the “policemen of the world”, but rather a strong and prosperous people that others would want to emulate without our having to “persuade” them via military means.

-December 15, 2017

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The Preamble – Part V: “insure domestic tranquility”

This part of the Preamble naturally flows out of the out of the first two elements listed in it.  As was pointed out two essays ago (The Preamble – Part III: To Form a More Perfect Union), there wasn’t much domestic tranquility (i.e., peaceful existence) between the various states and that was a motive to create “a more perfect union.”  Out of this “more perfect union” came the establishment of justice between the states, and eventually all of their citizens.  Without justice (i.e., fair and equal treatment) there can be no tranquility.  What parent has not had to deal with one of their children protesting his/her treatment and acting rebelliously because in comparison to the treatment of a sibling they felt they were not being treated the same (i.e., justly)?  When that happens, there is no domestic tranquility!  When Freddie Brown was killed in Ferguson, Missouri (and as testimony later indicated, for just cause), citizens in that city jumped to conclusion that it was not justified and took to the streets proclaiming “No justice, no peace”, and anarchy ensured there for several nights.

Our national government today has greatly exceeded its constitutional authority and in doing so we see the result – a disintegration of tranquility within our society.  President Obama and his Marxist party, the Democrats, constantly harped on (and continue to harp on) the need to “spread the wealth” among the citizenry, which means government taking from those who earn and giving it to those who did not.  Is that fair?  Is that treating everyone with justice?  No, so is it any wonder that it is often spoken of as “class warfare”?  That is hardly a term applicable to a society that is experiencing domestic tranquility.

In my 65 years on this earth I have not seen this kind of discord among Americans since the turmoil of the civil rights era of the late 1950s’ and ‘60s’, and it is not by accident.  The policies and rhetoric of the previous administration and its party has sought – and succeeded to a degree – of creating a disunity among us, and that has led to this explosion of feelings of injustice, both of which is destroying what should be a tranquil existence among a free people governed by a limited government that has left us alone to enjoy the blessings that are provided in lives lived in liberty.

The Preamble stipulates that the purpose for forming this more perfect union was to insure tranquility among the citizens of the various states, or in other words, to maintain peace among the citizenry.  How was the government to accomplish this?  By a just application of the law, which the Constitution following the Preamble, is to be supreme.  If government would adhere to the limits placed upon it by the Constitution, it would go a long way towards insuring tranquility within our society.

-December 10, 2017


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The Preamble – Part IV: “establish justice”

What is “justice”, and how is it to be “established”?  Simply put, justice is where everyone in a society is treated fairly as equals.  When this is not the case we often speak of the “scales of justice” being weighted in favor of one party over another, meaning that the scales have been perverted and justice destroyed.  But how is justice “established”?  What was the import of listing it in the Preamble to the Constitution and placing it immediately following the purpose of forming “a more perfect union”?

As I pointed out in last week’s essay (The Preamble – Part III:  “a more perfect union”), there was a breakdown in justice among the thirteen states; there was no “fairness” among their interaction with one another and between themselves and other nations.  The Articles of Confederation were inadequate in righting this lack of justice and the consistency of it among the states, and so there was the need for the creating of “a more perfect union” via this new Constitution.

Returning to the second question with which I began this essay, just how is this Constitution to see that justice is established?  The answer begins with the next to last article which proclaims that “This Constitution,…shall be the supreme Law of the Land.”  But, you may be asking, what has being the “supreme Law of the Land” have to do with establishing justice?  In his outstanding treatise The Law, Frederic Bastiat, towards the end, raises the question “What is law?”, to which he answered “Law is common force organized to prevent injustice; ̶ in short, Law is Justice.”  In fact, no less than seven times in the closing of his treatise, Bastiat states that “law is justice.”  Note his definition of law – “common force organized”.  Such force is why people form societies and establish governments, handing over to it (temporarily, until government begins to abuse its power) the authority to enforce an organized application of law in order to preserve societal order and protect the lives, liberty and property of all.  In other words, to ensure that everyone is treated fairly.

So, in turning Bastiat’s phrase around, we could also say that “justice is law”, i.e., justice is brought about by laws that are fair and are equally applicable to all.  Such is the intent of the Constitution that follows the Preamble – to see that government is limited and that it treats all citizens under its authority equally and fairly.  In other words, “to establish justice.”

-December 2, 2017

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The Preamble – Part III: “to form a more perfect union”

When you read the Preamble to our Constitution, you should not just gloss over it so as to “get to the meat” of the Constitution.  As I’ve pointed out in previous essays – and especially last week’s (The Preamble – Part II) – the Preamble serves introduce the reason for the Constitution, and the ordering of the six reasons listed in the Preamble are, in my opinion, no accident.  In an eloquent stroke of genius, Gouverneur Morris captured in his edit of the Preamble the historical reason for the Constitution as well as the philosophical basis for free government.  All of the reasons he lists flow out of the first, for without it, none of the other five would have been possible.

This first reason sets forth the historical basis for the need of a new constitution.  When the Constitutional Convention (as it is called) convened in Philadelphia in the spring of 1787, 12 of the 13 states sent representatives to it as they had come to the realization that as 13 separate, sovereign and independent entities, their confederation was not fulfilling the promise for which they had fought to gain their independence from Great Britain.

The states were at odds with each other at every turn it seemed.  From the perspective of commerce, things were a mess.  They were charging each other tariffs on the transportation of goods when one state wished to transport their goods across another’s borders, hampering commerce throughout the confederation.  Each state was free to negotiate trade deals with the other nations of the world, even if those trade treaties would be to the detriment of their sister states.

The Continental Congress to which the states sent representatives was very weak and unable to enforce any tenets of the Articles of Confederation (our “first constitution) if not enough of the states agreed to back their resolutions or attempts of enforcement.  This was especially evident in states not willing to support the confederation financially as they should have to pay off debts incurred during the War of Independence.

Perhaps the most serious defect, however, was the lack of a solid defensive unity, making all of the states vulnerable to the manipulation and even military domination of the much stronger European powers who were “licking their chops” at how they could exert their influence on these “upstart” former colonies.

Were the states united at the time of the Convention of 1787?  Yes, but not very well.  However, in order to accomplish the following five reasons for the Constitution and its new form of government, it was necessary to, as the Preamble begins, “to form a more perfect union.”

-November 25, 2017

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The Preamble – Part II

As I pointed out in the past essay in this series (The Preamble – Part I), the Preamble is not an actual part of the Constitution, meaning it carries no weight as “law”, but rather serves as a broad, thematic statement as to the purpose for which the Constitution’s articles (and subsequent amendments) were written, and in turn, the purpose for which those citizens in 1787 were forming the new government which sprang from the Constitution.

This understanding of the function of a preamble to any document and how broad, general statements, cannot be applied to mean anything and everything is to be permitted, is critical to grasping how the intent of the Constitution was to limit the power of government and expand the freedom and liberties of the citizenry.

This is clear from two perspectives.  One is grammatical, the other is from the pen of James Madison.  Grammatically, the Preamble states that what is to follow in the Constitution has a distinct and limited purpose as indicated by the phrase “in Order to.”  This would indicate that anything outside the scope of the six actions that follow is not something within the purview of the national government.  The Constitution charges the government to perform six actions, indicated by the verbs “form”, “establish”, “ensure”, “provide”, “promote” and “secure.”  I will be examining each of these six functions in the weeks to come, but, as we go through a study of them, remember these words of Madison when he was expounding on the structure of Article I, Section 8 of the Constitution in The Federarlist No. 41 regarding how to interpret general phrases:

“But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.”

It is the specifics delineated in the Constitution that explain in what manner the government is to carry out these six broad commissions given to it by “We the People” that we will be examining in the coming essays.

  • November 17, 2017

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The Preamble – Part I

Most people, if you were to stop them on the street and ask them to recite the Preamble of our Constitution, would (I hope) at least remember the first three words, “We the People.”  If you were to read the original wording of the Preamble you would be surprised at the stilted and wordiness of it.  We owe the eloquence of what it came to be to the young delegate from Pennsylvania, Gouverneur Morris.  It was he who took that awkward draft of the preamble and gave it the wings on which it soars today.

Whereas some constitutions of other nations have either been explicitly incorporated to be a part of their constitution or by interpretation by their courts to carry the same weight as their constitution, the preamble of the US Constitution is not a part of constitutional law and has never been applied as such, even though many progressives attempt to use it as such.

A preamble merely sets for the purpose or objectives of what is to follow in the document to which it is the introduction.  When attached to a statute (or law) a preamble merely sets forth the intention that was in the minds of the legislature when it was enacted.  Inasmuch as the Constitution is the “supreme law of the land” according to Article VI, Section 2, then the Preamble is not law, but merely sets forth the intent for which our government was formulated and shaped by the following seven articles (and subsequent amendments) of it.

The Preamble has two parts:  the origin from whence it (and subsequently the government it established) came, and six objectives of the Constitution which follows it is to achieve.  The origin is not the states, as the wording in the original draft indicated, but rather, thanks to Gouverneur Morris, us – “We the People” (see my last essay “We the People”).  The following six “goals” if you will that the authors of the Constitution envisioned it would achieve are stated in broad, general terms – just as a thematic statement should be.  So when it mentions, for example, “to promote for the general welfare”, it was not the intention of the founders to be giving carte blanche to the government to do whatever it felt would be good for the general welfare of the country (but more on this in a subsequent essay).

Over the next six weeks, then, it will be my intent to look at each of these six objectives in the light in which the founders intended and not as progressives would have us believe we are to understand and apply them today.

-November 11, 2017

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