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Attorney Deborah G. Stevenson, Executive Director

 

 

Bulletin #65   Gaining Insight to the Meaning of the Constitution    02/03/09

 

 

Did you know?  Most people are unfamiliar with our U.S. Constitution and take it’s meaning for granted.

 

Maybe it’s because we haven’t been taught about it in school.

Maybe it’s because we assume everyone knows about it.

Maybe it’s because phrases concerning it are ubiquitous but vaguely undefined.

Whatever the reason, it’s time to take another look at the meaning of the Constitution so that we can have a deeper understanding of its history and its proper application in our modern world.

 

We all have a general idea of the historical beginnings of the Constitution. And it’s easy to look up what the actual wording is in each part of the Constitution.  But here are some general principles that may be worth contemplating.

 

1.      The Constitution does not grant rights to the people.  It establishes a government designed to secure the rights the people already have.  The Constitution defines the structure of our government, grants certain powers from the people to the government, and places limits on certain powers granted to the government.

 

The founding fathers began this country by declaring their independence from England. The founding fathers believed that we, the people, have the right to live in freedom, although they also recognized that in order to continue to live in freedom, a government needed to be established, deriving its powers from the people, in order to secure the rights of the people to their freedom.

 

The founding fathers declared that “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…”  Most of us know this phrase by heart.  The phrase that follows in the Declaration of Independence is of equal importance, although probably less well remembered.  It states, “That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”  The founding fathers then added, “That whenever any form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

 

In other words, the founding fathers believed that all men are created equal and endowed with certain unalienable rights.  These rights we, the people, already have, from birth.  The government did not grant us those rights.  A written document did not grant us those rights.  We already have them.

 

Why, then, did the founding fathers ordain and establish a Constitution?  This, too, they explained in the Declaration of Independence.  They ordained and established a Constitution precisely “to secure these Rights”, to secure the rights we already have. The founding fathers also made sure to emphasize in the Declaration that while Government is established “to secure these Rights”, Government derives its just powers “from the consent of the governed”, from we, the people.

 

To make it crystal clear that everyone understands this principle, the founding fathers added that whenever Government “becomes destructive of these ends”, that is, whenever Government does not “secure these Rights” that we already have, we, the people, also have the right to “alter or to abolish” that Government and to institute new Government.

That is the starting point for understanding the Constitution.  We already have certain unalienable rights.  That is a given.  The Constitution was written to establish the contours of the government that was established to secure those rights, to grant to the government certain powers to secure those rights that we already have, and to limit the power of government so as not to interfere with those rights that we already have.

 

2.      The Constitution has a certain structure to it, the order of which also gives insight into the priorities the founding fathers placed on the items contained in the Constitution.

 

First, the preamble explains the purpose of establishing the Constitution:  “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…” 

 

The preamble next is followed by seven brief Articles.  Article I, deemed as the most important of the articles by its placement in the very beginning of the document, establishes the legislative powers of the government.  It states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”  Again, note the language used.  By this document, by the terms of the Constitution, we, the people, who already have these unalienable rights, are granting to the newly established government described in this document, the power to legislate, to make the laws.  Who in the government shall make the laws?  The Constitution declares that the power to make the laws shall be given to the Congress, a group chosen by the people, who act to represent the people.  The remainder of the article goes on to describe the conditions under which these representatives of the people shall be chosen, how they shall organize in the Senate and the House of Representatives, how they shall be impeached when necessary, how they shall be paid, and how they shall raise bills to be enacted as laws. Most importantly, section 8 of that article defines what power the Congress shall have. It very specifically lists only those powers that the Congress shall have.  Sections 9 and 10 also place limitations on Congress and the states as to their respective powers.

 

Next in terms of importance, the founders established Article II, defining the power of the executive branch of government.  It states, for example, “The executive Power shall be vested in a President of the United States of America….No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”  The next sections of that article describe the powers that the President shall have and states that “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

 

Article III defines the judicial Power of the United States by stating it “shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”  That article explains that the judges “shall hold their Offices during good Behaviour” and shall be compensated for their services.  The article further describes the kinds of cases that the courts could hear, which were limited in nature. It then defines that “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

 

Article IV establishes the means that citizens of one state could be assured that they would have the same rights as the citizens of another state.  That article says, “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”  Again, in this article, it is clear that we, the people, are granting to the Congress, the power to enact laws that would prescribe the manner in which the rights of the people are to be secured from one state to the next state.  That article also grants the power to Congress to make “all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” and describes how new states may be admitted to the union.  Equally as important, Section 4 of this article directs the United States government to guarantee that the system of government established in each of the states is protected from its destruction by invasion or other threats.  It states, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”  The clear message is that, we, the people, direct the government to protect and secure our rights, rights that we already have.

 

Article V establishes the means for amending the Constitution should the need arise. The founders recognized that we, the people, might not have foreseen all possibilities and so allowed for an orderly process to make amendments.

 

Article VI establishes that we, the people, have deemed the Constitution is of overriding importance.  It states, “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…”  It also states, “The Senators and Representatives before mentioned, and Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…”  In other words, we, the people, have established this form of government and granted to the different branches the election or appointment of certain officers who are designated to pledge their oath of allegiance to the Constitution, a document that describes how our chosen form of government will secure the rights that we already have.

 

Article VII sets out the manner in which the states were to ratify the Constitution.  The Constitution became effective on June 21, 1788 when New Hampshire was the ninth state to ratify it.

 

The Constitution, thus, is a fairly simple, straightforward document setting up a form of government designed by the people to secure the unalienable rights and the liberty that the people already have.

 

3.      The Bill of Rights amends the Constitution, more specifically details the existing rights of we, the people, and places limitations on government interference with those existing rights.

 

Since the ratification of the Constitution, certain amendments were made.  The first ten of which are known as the Bill of Rights, adopted December 15, 1791.  This is the part of the Constitution of which people are most familiar.  The order of the amendments also gives insight into the priorities the founding fathers placed on them.  They, too, are simple and straightforward, although they often today are misconstrued through the misuse of language, or through intentional obfuscation often on the part of some government officials, including judges.

 

The First Amendment specifies in no uncertain terms that “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.”

How often do we hear people saying things such as, “I have a first amendment right to free speech”, or “The Constitution gives me the right to protest (i.e., peaceably to assemble.)  Actually, the Constitution does not give anyone the right to free speech, religion, the press, assembly, or petition for redress of grievances.  The Constitution directs Congress not to “make any law” that interferes with the people’s already existing unalienable right to free speech, religion, the press, assembly, and to redress grievances.  The amendment was added to clarify, to directly order, Congress not to interfere with those rights.

 

The Second Amendment states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’  Whether or not in today’s society one likes the idea of keeping and bearing arms, nonetheless, the amendment directs the government not to infringe on the already existing right of the people to the security of a free State and to keep and bear arms should they choose to do so.

 

The Third Amendment states, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”  England forced many colonists to quarter soldiers in their homes against their will.  Thus, the founders limited the ability of the government to infringe on the already existing right of the people to the privacy of their home.

 

The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”   Again, the framers made it clear that the people already have the right to be secure in their persons, houses, papers, and effects.  In this amendment, therefore, they limited the government from violating those already existing rights.

 

The Fifth Amendment states, in part, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”  Most people are familiar with the Fifth Amendment.  Most often people say they have a fifth amendment right against self-incrimination and double jeopardy, and a fifth amendment right to due process.  Actually, it is not the Fifth Amendment that grants the people those rights.  The people already have those rights.  The Fifth Amendment limits the government from interfering with those existing rights.  The Amendment puts the government on notice that it cannot subject a person to the same offence twice, cannot compel a person to be a witness against himself, and cannot deprive the person of life, liberty or properly without due process and just compensation. Again, the Constitution does not grant the right to the people, the people already have the right.  The Constitution limits the government from interfering with the already existing right.

 

The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”  Again, the purpose here is to limit what government can do to interfere with the right of the people, even people who are accused of crimes.  The government cannot neglect to inform an accused of the crime for which he stands accused.  The government cannot put to trial an accused before a biased jury.  The government cannot refuse to allow the accused the ability to confront his accusers or to call witnesses in his favor, and the government cannot deny an accused representation by counsel.  The Amendment is a limitation on the power of the government to infringe on the already existing rights, even of an accused.

 

The Seventh Amendment states, “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”  This amendment seeks to preserve the already existing rights of the people that they had “at common law”, in other words, handed down from previously existing courts of law in England.  It seeks to limit the new government from infringing on the people’s right to trial by jury in the civil context.

 

The Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  Again, it seems to be clear that the framers sought to limit the government from interference with the people’s already existing right not be endure cruel and unusual punishment.

 

The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The Ninth, and the Tenth Amendment, are among the most important of the Amendments.  Just in case there was any doubt about what the framers intended in the rest of the Constitution, the framers clarified, for all time, their intent, in these two Amendments.  The Ninth Amendment says that while the framers may have enumerated certain rights in the Constitution, for example those listed in the Sixth and Seventh Amendments, the mere listing of those rights shall not be construed somehow to mean that the people do not retain other rights, and shall not be construed somehow to deny the people any of the other rights that they already retain.

 

The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”   Just to make sure there was no misunderstanding, the framers added this Amendment.  It clearly indicates that the framers, in fact, in the Constitution were delegating certain powers to the new government of the United States.  It also clearly indicates that while the people did delegate some powers to the United States government, all of the other powers not mentioned, in no uncertain terms, are “reserved to the States respectively, or to the people.”  In other words, the people have certain unalienable rights. The people granted to the United States government certain powers concerning their rights, and the people may have delegated certain powers concerning those rights to the government of the States. Therefore, those powers that the people did not specifically, in this Constitution, grant to the United States government, remain powers either already granted by the people to the State government, or are being retained by the people.   This explains the framework, intent, and meaning of all of the provisions of the Constitution.

 

After the Bill of Rights was adopted, seventeen more amendments were adopted.  None of them amended the Ninth or Tenth Amendment.

 

As George Washington stated in 1787, “The power under the Constitution will always be in the people.  It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own choosing; and whenever it is executed contrary to their interest, or not agreeable to their wishes, their servants can, and undoubtedly will be recalled.”

 

Today, those words still ring true.  The power under the Constitution remains in the people.  It is important to remember that we, the people, grant to the government their limited power to exist and to affect in any way our already existing rights. The government does not grant any power to the people.  The government does not grant any rights to the people.  The people voluntarily grant to the government certain powers for the primary purpose of securing the people’s already existing rights.

 

Whenever the government acts in any manner, ask yourself if the government is acting Constitutionally utilizing its limited powers to secure your rights, or if it is acting unconstitutionally usurping the authority of the people to restrict, or to eliminate, your rights. If the government is becoming destructive of the ends of securing the rights of the people, then it may be time to alter or abolish that government and to institute new government.  It is not just our right, it is our duty to do so, as directed by our forefathers, to preserve freedom for our posterity.

 

 

Attorney Deborah Stevenson - Executive Director of National Home Education Legal Defense.www.nheld.com or email : info@nheld.com

Judy Aron - Director of Research, NHELD – imjfaron@sbcglobal.net