After my latest article, Our Dead Constitution, was released, I received much response, many from those who understood and agreed, and some by those who were opposed to my statement, â€œOur constitution is dead.â€ This leads me to reasonably believe that many of us need to be educated about what a constitution actually is before constitutional law and freedom can be restored throughout the states.
1. A constitution does not create freedom. A constitution is created only to protect and secure freedom which already exists, through forms, structure and limitations of government. This is what our founders said in the Declaration of Independence: â€œto secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.â€ Therefore, if oneâ€™s perspective about the U.S. Constitution is that it statically creates freedom for all the people of the states, then I could understand how he would be shocked or angered at the suggestion that the U.S. Constitution is dead. To the contrary, we know that freedom exists in a state of nature, created by God, as expressed in the Declaration of Independence: â€œWe 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.â€ These natural laws and rights never die. They existed prior to 1787 and they will exist after we are gone. Thus, a distinction must be made between natural freedom (which never dies) and a constitution (which can die).
2. A constitution may be worthless to secure freedom. History proves thisâ€“even Americaâ€™s history. A constitution rests upon a serious distrust of human nature, and simultaneously upon the skeptical and temporary trust placed in delegated power, which supposedly will â€œbe disinclined to invade the rights of the individual States, or the prerogatives of their governments.â€ James Madison, Federalist Paper (FP) 46. These principles determine the constitutionâ€™s nature, character, form, and function. This necessarily means that a constitution itself is to be contrasted to the eternal principles that formed the constitution, and where government does not conform its actions and intentions to the principles of the constitution, the constitution itself is practically meaningless and dead. American jurist, William Rawle, expresses the same: â€œBy a constitution we mean the principles on which a government is formed and conducted.â€ William Rawle, A View of the Constitution of the United States of America, 2.
That our government must conform its actions and intentions to these principles is confirmed by the United States Supreme Court, by those who formed our constitutions, and by those who helped form the very fundamental thoughts of American jurisprudence: (1) â€œLet the nature and objects of our Union be considered; let the great fundamental principles on which the fabric stands be examined.â€ Cohens v. Virginia, 19 U.S. 264, 423 (1821). (2) â€œ[N]o free government, or the blessings of liberty, can be preserved to any people butâ€¦by a frequent recurrence to fundamenta