The Preamble – Part IV: “establish justice”

December 2, 2017 Frank Kuchar

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

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

November 26, 2017 Frank Kuchar

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

The Preamble – Part II

November 17, 2017 Frank Kuchar

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

The Preamble – Part I

November 12, 2017November 15, 2017 Frank Kuchar

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

“We the People…”

October 29, 2017 Frank Kuchar

So begins the opening of the Preamble to our national Constitution. If you research the preambles of other countries’ constitutions, you will find that ours is not unique as many of them also make reference to their constitutions being ordained and formed by “the people”. However, all of these other constitutions came after ours – the ideals of our Constitution have served as the model for numerous others around the globe.

Is it not ironic that a constitution that has inspired so many others is disparaged by no less than a sitting associate justice on our nation’s Supreme Court? In an interview in Egypt in 2012, Associate Justice Ruth Bader Ginsberg had this to say about our Constitution and Egypt’s plans to draft a new constitution for themselves:

“I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.”

I would expect such an observation to come from someone who was unfamiliar with our Constitution and who had never read the defense of its ratification made by its authors in The Federalist Papers, but not from someone who sits on the highest court in the land and is charged with applying the tenets of the Constitution to the cases that come before that court. Yet, that is the perspective of the leftists in our country today.

Our preamble reflects a radical change in government – that power flows upwards from the people, not downward from those sitting in the seat(s) of power. Critics today charge that the Constitution was not a product of the people, but by a bunch of rich, slave owning white men. Unfortunately, too many of our fellow citizens, educated by the leftists who control our educational institutions, believe this to be true. Yes, they were white men, some were wealthy, but not all of them were slave owners – in fact several argued and wanted to outlaw slavery in the Constitution. That they did not do so is not because they owned slaves or supported slavery, but because they knew without some concessions on that issue, no Constitution would be forthcoming and America would disintegrate and be swallowed up by the European powers.

Those who gave us our Constitution were appointed by the legislatures of their respective states, who in turn were individuals elected by the citizens of the states. It was either the legislatures or special conventions appointed by the people who debated and ratified the Constitution, and in the case of Rhode Island, it was ratified by the direct election process of the people (albeit not until May 1790 because the people initially rejected the Constitution). Furthermore, if the people had no say in the ratification of the Constitution, then why did the Federalists in the Federalist Papers address their essays “To the people of New York”, and those of the Anti-Federalists style those to the people in the states wherein they lived?

Clearly, our Constitution is indeed sourced by “We the people”, and because it is, the government it framed and created is accountable and answerable to us. Therefore, since the government came from us, those in power should be warned that we have the right, as Jefferson so eloquently stated in the Declaration of Independence, to abolish it and erect another one that will protect our right to life, liberty and the pursuit of happiness from the tyranny of government – even one that has lost its moorings from its charter document.

-October 29, 2017

A Tale of Two Constitutions

October 14, 2017 Frank Kuchar

(I realize I’ve missed a couple of weeks with these essays and I apologize; I’ve been distracted by pressing family matters. For those who have had to deal with the transitioning of care for a loved one with dementia, you can understand how consuming that can be, and I appreciate the reception you continue to give to my writings. Now for this week’s thoughts)

When I go into classrooms of junior high or elementary schools during “Constitution Week” and talk to the students about our Constitution, I explain to them that a constitution is simply the “rules of the game of government”, just like the rules of any board game they might play. A constitution dictates to all those involved in the governing of their fellow citizens how they are to govern and the limits to their powers.

That having been said, as I pointed out in my last essay (“Constitutional Relevancy?”), a constitution is only as relevant and worthwhile as those in power follow and adhere to it. It is safe to say that every government of man has “a constitution”, be it written or merely understood. Every government is understood by the citizens as to how it will operate, be it an absolute monarchy, a repressive dictatorship (whether of one or several), or a republic.

In light of that, I will present for you the elements of another nation’s constitution to illustrate my point.

ARTICLE 10. “The right of citizens to personal ownership of their incomes from work and of their savings, of their dwelling houses and subsidiary household economy, their household furniture and utensils and articles of personal use and convenience, as well as the right of inheritance of personal property of citizens, is protected by law.”

ARTICLE 118. “Citizens of { } have the right to work, that is, are guaranteed the right to employment and payment for their work in accordance with its quantity and quality.”

ARTICLE 119. “Citizens of { } have the right to rest and leisure.”

ARTICLE 120. “Citizens of { } have the right to maintenance in old age and also in case of sickness or loss of capacity to work.”

ARTICLE 121. “Citizens of { } have the right to education.”

ARTICLE 122. “Women in { } are accorded equal rights with men in all spheres of economic, state, cultural, social and political life.”

ARTICLE 123. “Equality of rights of citizens of { }, irrespective of their nationality or race, in all spheres of economic, state, cultural, social and political life, is an indefeasible law.”

ARTICLE 124. “In order to ensure to citizens freedom of conscience, the church in { } is separated from the state, and the school from the church. Freedom of religious worship and freedom of anti-religious propaganda is recognized for all citizens.”

ARTICLE 125. “In conformity with the interests of the working people, and in order to strengthen the socialist system, the citizens of { } are guaranteed by law:

freedom of speech;
freedom of the press;
freedom of assembly, including the holding of mass meetings;
freedom of street processions and demonstrations.”

Some of these “rights” listed sound very familiar to those of us to know and revere our Constitution, while some seem a little more like those espoused by the likes of the Socialist Senator Bernie Sanders. It should not be surprising that those that sound like Senator Sanders’ political platform are articles of the 1936 Constitution of the Soviet Union (I purposefully deleted “the USSR” in these quotes where you see the brackets) since Senator Sanders chose to honeymoon with his bride in the USSR back in 1988!

Based on history we can see just how well this constitution worked out. Stalin’s constitution (as it was also known) is regarded by many as nothing but a propagation constitution, for most of its articles expound how power was to be concentrated solely in the hands of the communist party. Despite the platitudes of guarantees to the basic freedoms we take for granted, they were never recognized by Stalin and his successors.

Those on the left today would very much like to rewrite our constitution to more closely follow those of the Stalinist Constitution rather than the tried and true guarantee of individual freedom in our 230-year-old US Constitution. Clearly, as I’ve argued before, a constitution is nothing but a piece of paper inscribed with ink. Unless a country has leaders of integrity who are faithful to their oath to uphold the tenets of their constitution in guaranteeing the freedom and liberties of the people, that constitution is just a piece of paper – nothing more, nothing less.

In subsequent essays I plan to take a look at what makes our Constitution so special and why it was written the way it was compared to other constitutions such as the one I’ve contrasted in this essay.

-October 14, 2017

Constitutional Relevancy?

September 23, 2017 Frank Kuchar

This past Sunday, September 17, was the 230^th anniversary of the conclusion of the Philadelphia convention of 1787. Upon the conclusion of the convention, as he was leaving “Independence Hall”, the aged Benjamin Franklin was asked, “Well Doctor Franklin, what have you got for us?”, to which he replied, “A republic madam, if you can keep it.” Actually, what he and the other delegates to the convention had given to their fellow Americans and us, their descendants, was a constitutional republic.

Yet, this week, we must ask, “After 230 years, are we still a constitutional republic? Is the Constitution still relevant in our day and time?” To these two questions I would answer with a resounding “No”! Consider the following (with apologies to Jeff Foxworthy):

If the party in power can use secret courts to get an order to wiretap and spy on their opponents with no repercussions, you might not live in a constitutional republic.

If government agencies can plant applications on the computers of reporters who are reporting on governmental malfeasance and tap their phone conversations (e.g., James Rosen and Sharyl Attkinsson), thus violating both the first and fourth amendments, you might not live in a constitutional republic.

If the government records the conversations and all electronic communications of every citizen in massive meta-data fusion centers, again violating the fourth amendment, you might not live in a constitutional republic.

If elected officials constantly create unconstitutional agencies and empower them to act as legislator, executor and judge over your property, business and personal affairs, you might not live in a constitutional republic.

If elected officials listen more to those who fill their campaign coffers instead of their constituents, you might not live in a constitutional republic.

If certain officials in high positions of power use their position to influence policies and negotiations with foreign powers to grossly enhance their financial well-being at the expense of the liberties and security of the rest of the country (e.g., Hilary Clinton), with no fear of prosecution, you might not live in a constitutional republic.

If elected officials and even members of the Supreme Court have no inkling as to the tenets of the Constitution, even mocking it (e.g., Nancy Pelosi’s response regarding the unconstitutionality of “Obamacare”), you might not live in a constitutional Republic.

If the government routinely eschews the limitations imposed upon its authority by Article I, Section 8 of the Constitution, you might not live in a constitutional republic.

I could go on and on with these, but I think it’s a sufficient number that you get the picture. Our elected (and unelected) government officials pay lip service to the Constitution they take an oath to uphold and defend, but they seldom live up to that oath. So, is our Constitution relevant today as to the operation of our national government? I think, sadly, the answer is rather obvious.

-September 22, 2017

The First Amendment and Social Media

September 17, 2017 Frank Kuchar

Lately there has been much criticism levied at social media sites such as Facebook, Twitter, etc., and companies who have censored certain postings or statements made by individuals (or employees in the case of employers). I have heard many conservatives claim that these sites and employers are violating the first amendment’s guarantee of freedom of speech and think that the government should step in and do something about it because those being censored are political conservatives. Such criticisms and allegations regarding violations of the first amendment are completely off base.

Do I like that conservatives are censored in this manner? Absolutely not. Do I think such censorship is a violation of the first amendment? Again, absolutely not. The first amendment states “Congress shall make no law…abridging the freedom of speech, or of the press.” This guarantee is unambiguous – it is a prohibition against Congress from censoring speech and the press, not private companies such as social media sites and employers.

Conservatives who make this charge need to pause and reflect upon what they are asserting. They are in effect appealing to the government to force a private company and/or employer to allow individuals who use the companies’ services or who are employed by them to permit their preferred form of expression. Constitutionalists should understand that the government has no authority under the Constitution to do any such thing.

It is hypocritical for conservatives to make this complaint and appeal to the government while at the same time arguing that the government has no authority to tell bakeries they must provide a cake for a gay wedding or that the government has the authority to tell a company or individual what they can or cannot do with their private property, and so forth. You cannot argue on the one hand for the government to interfere with a private entity’s business operations when it goes against your preferences while at the same time telling it that it has no authority when it interferes in matters that go against your principles. That old adage of “What’s sauce for the goose is sauce for the gander” comes to mind, does it not?

Again, please do not think I applaud the censorship of these firms; I do not. I find them to be hypocritical as well and cowardly as they cannot handle honest dialogue and debate. However, as one who believes in trying to consistently adhere to our constitutional principles of limited government and individual right to self-determination, appealing to the government in this case is a slippery slope we as conservatives and constitutionalists do not want to go down. The solution is to turn to other venues of service, if possible, and if not, to not use them. Difficult to do and most likely not a successful alternative, but if you cherish the thought of limited government as well as non-governmental interference in your private affairs, this is the position you must regrettably take.

-September 15, 2017

Infrastructure and the Constitution

September 1, 2017 Frank Kuchar

We hear much these days about the need for Congress to pass an “Infrastructure bill” in which the national government will spend billions upon billions of dollars to repair roads and bridges of all types in cities and states across the country. There’s only one teensy weenie problem with this – it is completely unconstitutional.

Are our roads, bridges, airports, et al, in dire need of repair? Absolutely. So what’s the issue with this “good intention” and the Constitution? Simple. The only reference to roads in the Constitution is found in Article I, Section 8, which states that “Congress shall have Power to…establish Post Offices and Post Roads.” We no longer have roads designated as “post roads”; interstate highways, bridges, train trestles, airports and the like do not qualify for federal funds under the Constitution because they are clearly not defined to be “post roads.”

Yet, those wanting to pass this bill, including President Trump, will claim that this is for the “good” of the country – that such spending would fall under the guise of providing for the general welfare. To this I say, “Baloney.” Airports, bridges, highways, interstates are not part of the “general welfare” clause of Article I Section 8 of the Constitution, and I have no less than James Madison, the “father of the Constitution”, as my authority on that. In The Federalist #41, he wrote:

“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, the general phrase “general welfare” in the opening clause of Article I, Section 8 is defined and limited to the enumerated items that follow in the remainder of the article, and the only roads authorized to be established (and therefore paid for) by the federal government are “post roads.”

Furthermore, in 1822 Congress passed a bill to repair the Cumberland Road that had been built using federal money under President Jefferson’s administration. Initially the road was used as a “postal” road, but later came to be more like our modern-day interstate highways, with the states putting up toll booths, etc. on it. So, when this bill reached the desk of President Monroe, he vetoed it as being an unconstitutional appropriation of taxpayer money. In his veto message to the House of Representatives he stated:

“Having duly considered the bill entitled “An act for the preservation and repair of the Cumberland road,” it is with deep regret, approving as I do the policy, that I am compelled to object to its passage and to return the bill to the House of Representatives, in which it originated, under a conviction that Congress do not possess the power under the Constitution to pass such a law.

A power to establish turnpikes with gates and tolls, and to enforce the collection of tolls by penalties, implies a power to adopt and execute a complete system of internal improvement. A right to impose duties to be paid by all persons passing a certain road, and on horses and carriages, as is done by this bill, involves the right to take the land from the proprietor on a valuation and to pass laws for the protection of the road from injuries, and if it exist as to one road it exists as to any other, and to as many roads as Congress may think proper to establish. A right to legislate for one of these purposes is a right to legislate for the others….”

Clearly, then, any kind of an infrastructure bill is unconstitutional. What then can we do? Have the states pay for the building and repair of these roads, structures and entities, or follow the advice of Present Monroe who gave this answer at the end of his veto:

“Having at the commencement of my service in this high trust considered it a duty to express the opinion that the United States do not possess the power in question, and to suggest for the consideration of Congress the propriety of recommending to the States an amendment to the Constitution to vest the power in the United States,…”

This, I understand, is a harsh stance, and federal money has been spent in this manner for decades and decades and is a “good” thing; but, as stated by an unknown Federalist author in the Alexandria Gazette on July 5, 1819:

“”[The] peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”

-September 1, 2017

“We Live in a Constitutional Democracy” – ???

August 19, 2017 Frank Kuchar

I caught a clip promoting an interview with Supreme Court Associate Justice Elena Kagan recently, and the comment they played made me stop in my tracks. She made the observation that we are a constitutional democracy. In doing some digging, I found that wasn’t the first time she’s made that observation.

In the case in 2013 where the SCOUS struck down the Defense of Marriage Act, she made this statement to Michigan’s Assistant Attorney General: “Mr. Bursch, we don’t live in a pure democracy, we live in a constitutional democracy. And the Constitution imposes limits on what people can do, and this is one of those cases.”

Couple that with her comment in a 1995 review where she wrote about what influences the rulings of a Supreme Court Justice, and you have to scratch your head and wonder how the Republicans in the Senate ever let her get confirmed: “…it should come as no surprise by now that many of the votes a Supreme Court justice casts have little to do with technical legal ability and much to do with conceptions of value.” And just whose “conceptions of values” might they be? Why, the individual justice, of course!

Our founders rebelled against being ruled by the ‘whims” of one man (King George), yet this is precisely what Justice Kagan is saying the basis for her decisions are. Never mind the concept of the rule of law, or justice being blind to all but the facts. We now are being dictated to by a subjective judicial oligarchy.

In his famous treatise, Common Sense, Thomas Paine wrote: “But where, says some, is the King of America? I’ll tell you….in America, THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law OUGHT to be King; and there ought to be no other.” No Justice Kagan, you are not “King” (or “Queen”) over us, though you and the judiciary of this country act like it. Law is not subjective, nor cannot it be for if so, then it fails to be law based upon principles and justice, but is tyrannical rule by a powerful few, or mob rule by majority (i.e., democracy).

After the draft of the Constitution was completed and ready for acceptance by the states, the aged Benjamin Franklin was leaving Independence Hall in Philadelphia where anxious citizens had gathered to learn of the actions taken by the convention being held there. A Mrs. Powel of Philadelphia asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” With no hesitation whatsoever, Franklin responded, “A republic, if you can keep it.” Justice Kagan, we are not a constitutional democracy; Benjamin Franklin stated very plainly we are a republic of democratically elected representatives of the people, and (as originally intended) state legislatively-appointed senators to represent the interest of the states (fyi, Justice Kagan, that’s called “federalism”– a great concept; maybe you could read up on it).

Elena Kagan sits on our Supreme Court and is clueless of these facts. Thanks to the likes of Justice Kagan and the ignorance of so many of Americans, unfortunately, as Franklin warned, we have not kept our republic, but instead are seeing it fast fading into the darkness of democratic oppression and tyranny.

-August 18, 2017