What is the Constitution?
It is a document designed to protect our freedom by imposing law on those who wield political power. Without such law, Americans would be under the constant threat of tyranny.
The word “constitution” did not always refer to a particular document. The word is based on the Latin verb constituere, which means to arrange or decide. In its original English sense, a “constitution” was how a political system was set up. People spoke (and sometimes still speak) of the unwritten and evolving “constitutions” of Britain and of the ancient Roman republic.
As I explain in The Original Constitution, the American Founders acknowledged a huge debt to the British and Roman traditions, but they consciously rejected the British and Roman approach to constitutions. Specifically, they rejected the “evolutionary” and “unwritten” constitutional idea in favor of a written document that would lay out the rules in an clear and organized fashion.
There were only a few precedents for this approach: Sweden’s “Instrument of Government” was probably the first. Under Oliver Cromwell (1649-58), the English adopted a short-lived “Instrument of Government,” and then a short-lived “Humble Petition and Advice.” The name of the latter English constitution suggests how little those documents tempered Cromwell’s autocracy.
At the dawn of Independence, however, Americans had lived under colonial charters for a century and half, so they knew a written constitution could work. From 1776 to 1780, the Founding Generation promulgated state constitutions or “frames of government” for Vermont and for eleven of the thirteen original states. (Connecticut and Rhode Island, simply amended their colonial charters.)
In 1776, the Continental Congress began to draft our first national constitution, the Articles of Confederation. It was fully ratified in 1781. When the Articles proved insufficient, a federal convention proposed, and state conventions ratified, our present U.S. Constitution.
As I discuss in The Original Constitution, the Founders had certain common goals and values. To understand what our Constitution really is, we need to understand one goal in particular: To protect liberty by imposing law, in the form of objective and clear rules, on government officials.
In seeking to protect liberty by imposing law on political officeholders, the Founders walked in the Biblical and English traditions. For millennia, governments had promulgated laws to control their subjects but only ancient Israel and England seriously sought to control those in power. In England, the best-known steps of this sort were Magna Carta and the English Bill of Rights.
However, the American state and federal constitutions – and particularly the U.S. Constitution – imposed law on the government in a much more systematic way. The basic rules were collected in a single document. Moreover, as I explain in The Original Constitution, nearly all the terms in that document are very clear when read by the light of the Founders’ language, history, and law.
The courts were empowered to enforce the rules in the Constitution. If necessary, the courts could interpret them, but only by using the methods courts normally used in interpreting legal documents.
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When politicians violated the rules, their actions were void. In case a change in the rules was necessary, the Constitution included an amendment process.
Although the U.S. Constitution provided for a large measure of democratic governance, the Founders knew that there could be too much of a good thing: After all, it was the democratic government of Athens that had killed Socrates. So they imposed law even on those officeholders that were democratically elected.
Yet writing down the rules this way also was a profoundly democratic act. It enabled any citizen – or at least any citizen with a smattering of legal knowledge – to understand his own rights and the limits of government action. For the people at large, this was a tremendously empowering event.
By imposing law on the law-givers, the Constitution was key to the brilliant American success story.
The Code of Hammurabi, created in 1790 BC (almost 4,000 years ago), is probably the oldest and best example of a written "constitution" in that even the king of Babylon was subject to it. It was chiseled into stone tablets and is where we get the saying 'Written in stone." The idea is that the law should not change and should be known to all so it is created in the most permanent way imaginable.
It is simple logic that a permanent, public recording of the laws is the best option if you want to create a nation of laws rather than a nation of men. That's what our written constitution is all about at its lowest level. That's why the idea of a 'living constitution' is anathema to me and why it would be laughably rejected by any honest jurist.
Of course, TPTB want to change the rules as they go so they will always win and that's why they create intellectually dishonest ways to try to avoid the rules that have been "written in stone."
Also, the laws of Israel were developed as a universal concept such that Israel, or the people of Israel, wherever they found themselves, would be subject to the application of that law. As the laws applied to Israel, they were to apply to the "stranger within thy gates".
As Israel foundthemselves stranger stime and again, they had to become "universalist" in their application, and Maimonides later developed concepts of "due process" which were recognized by the Supreme Court, regarding our rights against self incrimination(Miranda vs Arizona, footnote 27).
It should be remembered always that "due process" is common law, not constitutional law, and common law was adapted and established by the states, which were to have all jurisdiction over lives,liberty, and property of "persons" as stated by Madison in "Federalist #45".
The 5th amendment of due process, by including the phrase life, liberty, and property of persons, tying it to Madison's Federalist statement, made the states exclusive power over such decisions by common law.
Very interesting… I did not know any of that about Jewish law. A quick search shows Maimonides lived around 1100-1200 AD. That puts him just before the Magna Carta.
Do you believe the Bill of Rights were originally intended to apply against the states or just the feds?
A very good book to read on 5th amendment origins is titled "Origins of the Fifth Amendment", a Pulitzer Prize winning book by Leonard Levy. You might be shocked as to how all Constitutional concepts tie in to our right against self incrimination. Of interest:
Presumption of innocence(Isaiah 54:17)
Right to face your accuser(Isaiah 50:8, with God's vindication of the accused, not the accuser, tying to presumption of innocence)
BTW, if you get a traffic ticket saying you do not have to appear in court, you should ask where the state gets authority to deny your rights? The 14th amendment says no person shall be deprived of life, liberty, or property without due process of law, and no person under state jurisdiction shall be denied equal protection. Due process is common law court time. If the state is going to charge you with a violation, it cannot abridge those privileges or immunities. The state is bound by the 14th amendment to guarantee every person time in court without exception.
BTW, John Marshall stated that the Bill of Rights applied against the feds, not the states, as in Madison's statement in "Federalist 45", life, liberty, and property was under the power of the states under common law, and "US vs Aaron Burr" stated that federal law did not have jurisdiction over common law, or due process. The reason was that each state adapted its own version of common law from England. Courtroom autority over life, etc lay completely within the power of the states until the 14th amendment, and now it actually lies only within the power of the people.
Thanks for your thoughts and the Levy book reference. I've not read that so I'll look into it. FWIW, I agree with your BoR analysis and also point to the preamble to the BoR to indicate that, before the 14th A, the BoR applied against the feds and not the states. After the 14th A, it gets more complicated…
A very good book on the history of common law as it came to America from England is LAW OF THE LAND by Charles Rembar. Very good read.
I understand that, but to use foreign law to change an American law seems like the ability to directly violates the division of power. Top Teen death penalty case, for example, some judges international law unconstitutional when to decide on the constitutionality of what should be used constitution declared why would cite. Judges decisions just your thought process from both the law and the Constitution should never be considered should be.
Until the people of the united States realize that we have been tricked into a de facto corporately owned status, the quicker we will be able to right the injustices throughout the entire World. Being Citizens of the Corporate United States, we have lost our rights that are protected by the Constitution for the united States of America. In an essence, the Constitution is dead to us. Until we re-establish ourselves as sovereign men and women on the land, only then will the Constitution for the united States protect us from our governments. I would suggest that everyone look into the difference between common law vs. Admiralty Law and de jure vs. de facto systems of government. As you continue down that rabbit whole you will begin to see through the facade. There are many of us are in the process of taking back what is rightly ours. Please join us and don't be fooled by the Corporate lackeys posing as Constitutional scholars. They are misinforming our children and doing the business of the NWO.
Good points. Admiralty law deprived the colonists of trial by jury and was despised by John Adams. The right to trial by jury in both Article 3 and the 6th amendment was to guarantee common law rights against the federal government.
Regarding corporations, if due process is common law, and common law pre-existed the constitution, can corporations have common law rights as a "legal person" under due process?
An important point to also consider in "The Hebrew Republic" [governed by higher Law] is that the authorities were always subject to correction via prophets. They announced where the people and/or leaders had strayed from the spirit of the law code (not just its letter) and the sanctions they could expect if they did not make it right. In America, the People are charged with keeping the leaders accountable. We must do that with voice (letters, calls, visits to offices, sending them info, like model state nullification amendments), and also with vote. Otherwise, the sanctions come upon US, not just the errant leaders. 2010 is an important time to arise and trust in the Providence that can deliver, even as General Washington did, against all "odds" in the war for independence. See the Declaration: "with a firm reliance on Divine Providence." It is time to speak and to act.
Natelson states "The courts were empowered to enforce the rules in the Constitution." I cannot find such a power in Article lll. In fact the only place where I can find the constitutional power to enforce laws, are in the 13th, 14th and 15th Amendments where Congress is granted the power to enforce those amendments. Article ll, Section 3, authorizes the Executive to "… take Care that the Laws be faithfully executed," which implies to me some sort of power to enforce the laws. It seems to me the power of enforcement is a police power which is reserved to the individual States. Is there any case law that gives the federal courts the power to enforce laws? Where am I going wrong here?
" I cannot find such a power in Article lll." It's not 'IN' the Article III, It 'IS' the Article III. It's the Judicial Power that is vested in the one supreme court (Article III). This Court has jurisdiction over all cases law and equity….
Jurisdiction means authority.
The Article III is the "National Court" all other courts are "federal courts". The Executive Power enforces (executes) federal laws, or "laws" made by congress, and it also enforces Judgements and Orders from both National and Federal Courts.
I think Prof. Natelson's statement that the "courts were empowered to enforce the rules" is a misstatement of the role of the judiciary. It's commonly understand that the judiciary's role is to interpret the law in case of a formal dispute – NOT enforce it. The Executive is commonly understand to be the enforcement arm of the feds. Congress creates the laws.
The states do not normally enforce federal law, if that's what you're asking. There are federal police agencies under the Executive Dept. (FBI, DEA, etc.) that do that.
Interesting, informed discussion; I do not believe the 'Fraudulent 14th' was ever meant to create a person type status for 'corpora-ficta' or fictitious entities such as corporations, associations [trade union] etc. Test: draw a circle, at top put 'We the People' – the Sovereigns; then at bottom, put 14th Amendment – "citizens subjects of government" ! The 180 degree inversion shows how the 1st period of Treasons against the Constitution, [thru-out the 1860's] by NWO Insiders has reversed the original Intents of our Founders. It subjugates 'We the People"– the Sovereigns, to become their "subjects of government…" Educating against the NWO should begin here, with the Treasons of the 1860's, so that awakening masses will begin to comprehend…!
Good points. Admiralty law deprived the colonists of trial by jury and was despised by John Adams. The right to trial by jury in both Article 3 and the 6th amendment was to guarantee common law rights against the federal government. It is right as it being said by doojie23
Our founders knew precisely what would happen and warned us what would happen as we strayed from that fabulous blueprint of checks and balances, the Constitution. However, our Constitution was under attack before the ink had dried by those that allow greed and lust for power to rule.
Especially over the last century, many of our elected have dishonored their oath to obey and protect the Constitution and have feathered their personal and political nests through the ‘bribes’ of an oligarchy of banksters and big corporate monopolist through their special interest machine.
We now find ourselves locked in a tyranny of debt slavery to those international banksters that own the private corporation called the Federal Reserve and order their bought servants to expand government power and bloat that debt. As the citizens begin to awaken up to this treachery, the powers that be have directed our elected to create a military police state that would have made the Nazi’s of the 1930′s proud.
It is way past time that the impeachments and trials to begin. Dishonoring the oarh to obey and protect the Constitution is treason. The evidence lies with their voting record of the myriads of unconstitutional laws that have passed in the last century.
http://www.ratifyconstitution.com