by Diane Rufino
There are many people who overlook the brilliance of the US Constitution. They argue that it is outdated and unfit to adequately govern such a modern nation as ours in the 21st century. And I might have believed these critics too if I had not been motivated enough to do my own reading, do my own research, and come to my own conclusions.
My conclusion is that the Constitution is very much relevant today as it was back when it was drafted and when it was ratified by the States. Its principles and concepts are timeless and as long as man is prone to the same conduct, they will continue to be timeless and applicable to any nation who values individual liberty.
We talk about strict construction of legal documents, which means that we look at the literal meaning of words in the historical text at the time the document was written. The purpose is to ascertain the intent of the drafters at the time the document was written by considering what the language they used meant at that time. But forget about just the words. The Constitution must not be looked at merely for what it says. The Constitution must be appreciated for what it embraces, for that is its true brilliance.
First of all, it embraces the spirit of the Declaration of Independence. In fact, part of the brilliance of the Constitution is the way it complements and the Declaration. As Edwin Meese III, legal expert at The Heritage Foundation, explains: “The Declaration provided the philosophical basis of a government that exercises legitimate power by ‘the consent of the governed’ and it defined the conditions of a free people whose rights and liberty are derived from their Creator. The Constitution delineated the structure of government and the rules for its operation, consistent with the creed of human liberty proclaimed in the Declaration.” This complementation also may be one reason for the Constitution’s enduring strength, for it puts into practice the values on which our founding Americans sought to establish the new nation.
Second, it embraces those philosophies of government, individual liberty, freedom, and markets most productive and protective of liberty. Our Founding Fathers were immensely well-read and intelligent men. In fact, in preparing James Madison for the Constitutional Convention in Philadelphia, Thomas Jefferson sent him a bunch of books that he stressed would be essential for the task ahead of him. The books our Founders read included the philosophies of great minds like Polybius (Greek political philosopher, mixed form of government and checks and balances), Cicero (philosopher, Natural Law), Thomas Hooker (Natural Law; also, he wrote Connecticut’s state constitution, which was one of the modern world’s first written constitutions and was a primary influence upon our own Constitution), Montesquieu (political philosopher, Separation of Powers), Sir Edward Coke (legal philosopher), Sir William Blackstone (Natural Law; Ten Commandments), John Locke (Natural law), Adam Smith (economic philosopher, Founder of Capitalism), and Jesus influenced the Founders profoundly. The Founders studied Polybius, whose written works provided a theoretical account of the development of society and government. Polybius saw the history of government as falling into a recurring cycle by which kingship inevitably gave way to successive stages of tyranny, aristocracy, oligarchy, democracy, and anarchy, at which point a strong leader would emerge and establish himself as king, thus starting the cycle over again. The only hope of breaking the cycle, Polybius maintained, lay in a “mixed” form of government (mixed elements) and certainly not in a pure democracy. The Founders read Adam Smith’s groundbreaking and insightful work “The Wealth of Nations,” which was published in 1776, and which influenced their decision to embrace and implement capitalism as a means to distribute goods and services within our nation. The Founders also were well-read in the books of the Old Testament. Even though some Founders didn’t subscribe to any Christian denomination, the teachings of Jesus and the works of the Old Testament were very held in high regard and with great respect by all. In fact, even though their backgrounds were widely diverse, the fundamental beliefs of the Founders were virtually identical.
The Constitution was intended to be timeless. It was intended to withstand the test of time and establish a government that would survive eternal (that is, as long as its people remained moral and ethical and of course, beholden to the Constitution). One of the biggest debates today, especially because of the condition we find ourselves in as a nation, is whether the Constitution is indeed timeless or was it just the starting place for those to “mold” as they deemed necessary. The answer to that is to use common sense. As we have repeatedly deviated from the Constitution, we have progressed further and further away from the positive ideals and productive values that made our country great. The biggest argument that liberal-minded people today make is that the Constitution is out-of-date, out-of-touch with the American people, and ineffective to meet our growing diversity and our evolving society. They argue that the Founders are outdated and that they have lost relevance. They say all these things because they believe that our Founding Fathers were products of their era and could not foresee the societal change that has evolved in this country. Nothing could be farther from the truth. Our Founders absolutely understood how the society would develop. The men who gave us the greatest nation on Earth weren’t just a couple of guys who went to the Constitutional Convention in 1787 to hammer out the wording of a Constitution that would be binding on all the states. These men were visionaries. These men did their homework. They were deeply devoted to creating a nation that would stand the test of time. They wanted to come up with a foundation, a Constitution, that would not wither with the times. And so for that purpose, they studied all the failed regimes of history and they looked at all the constitutions and founding documents of other nations and studied the reasons why they were unable to last long. So, there is nothing that we’ve seen in our developing history that other nations haven’t dealt with and nothing that our Founders weren’t able to foresee and to deal with (to prevent) in our new Constitution. As Machiavelli wrote: “Whoever wishes to foresee the future must consult the past; for human events ever resemble those of preceding times. This arises from the fact that they are produced by men who ever have been, and ever shall be, animated by the same passions, and thus they necessarily have the same results.”
In order to understand our Constitution and other founding documents, we Americans need to understand what issues concerned the individual states at the time of our founding. We need to understand the issues on the minds of the Framers in crafting our new nation and where they looked for guidance and vision and solutions. The states were concerned with their sovereign power and their reluctance to give any of it up. Most states also were concerned with their right to embrace their religious heritage. All states except for three wanted to make sure that our new nation, which proclaimed that “All Men are Created Equal” would be rid of the injustice that was slavery. In drafting a document that would bind all the states into a unified nation (a union of states), and do so harmoniously and to meet their legitimate expectations, the Founding Fathers had to address the following fundamental questions: How to divide the power up as between the States and the Government? How much power should the government have? How much will it need in order to be effective? What is the legal basis of our fundamental rights? Do our rights come from God or from the government? What is the proper foundation to protect human rights? How to make sure that fundamental freedom is not burdened by the government? How should the government be structured? How can power remain with the people and be checked from abuses? What is the proper system to represent the voice of the people? How should the individual states be represented in the government? Each of these issues is critical in understanding how our nation was created. Our national heritage stems from the decisions these men made in 1787 with respect to these issues.
The goal of the Founders at the Convention of 1787 was to reach a consensus or general agreement on concepts and principles that the Constitution should embrace rather than compromise. They wanted to reach a consensus on what the Constitution should provide rather than compromise. So before they went into a voting session, they made sure that they thoroughly discussed and debated each issue. After almost 4 months of such debate, they were able to reach a general consensus on just about everything – except the issues of slavery, proportionate representation, and regulation of commerce. These three issues eventually needed to be resolved by compromise.
The Founders honored their goal and resolved most issues by consensus rather than compromise. As “compromise” often reflects a tone of defeat and submission (it’s been called a “lose-lose scenario since both sides lose something they hold as important), the strength of the Constitution is that its provisions eventually and predominantly arose out of consensus. The Constitution was the product of extreme patience on the part of our Founders as each used reason and logic to bring the minds of the delegates into agreement. They wanted to make sure that the absolute soundest principles and concepts were adopted for the type of free and fair nation they had envisioned. Not one of the Founding Fathers could have come up with the perfect Constitutional formula to create a stable nation representative of the people and protective of their rights by himself, and the delegates who attended the Constitutional Convention in 1787 knew this.
From their studies of history’s failed regimes and their studies of productive philosophies, our Founders came up with a set of core principles that are absolutely vital to preserve the nation, to preserve the values on which the nation are based, and to prevent this country from going down the same destructive paths that other nations have gone down.
Basically our founding principles can be summarized as follows: A free people living in a civil society, working in self-interested cooperatives, and a government operating within the limits of its authority, promote more prosperity, opportunity and happiness for more people than any alternative ever devised by man. (The 5000-Year Leap)
1. God (the Creator) – Our nation is not a theocracy and is built on the right of the individual to worship freely or not. But nonetheless, our nation is founded on religious identity and principles. Our Founders understood there is a God. By acknowledging God and His role in the universe, our Founders were able to ground individual human liberties in the human connection to Him, and in that way secure them from the reaches of government.
Try reading the Declaration of Independence without the references to God (Creator): “We hold these truths to be self-evident, that all men are created equal, that they are endowed with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — 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 affect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States….”
To read the Declaration without the reference to God would be to acknowledge that individual rights have no legal foundation. “Endowed with certain unalienable rights….” Endowed by who? How are humans endowed? What is the foundation? If it is merely that they are endowed by circumstance of their birth, then the nexus is extremely weak. Birth connotes location and jurisdiction. Jurisdiction explains where the state has power over the individual. If individuals are simply “endowed with certain unalienable rights,” the government can easily step in and say something like this: “Since you are born in the United States, the US government will dictate what rights you have.” If individual rights come from the state, then the state can regulate them or take them away.
In a letter to Thomas Jefferson dated June 28, 1813, John Adams wrote: “The general principles on which the (Founding) Fathers achieved independence were the general principles of Christianity. I will avow that I then believed, and now believe, that those general principles of Christianity are as eternal and immutable as the existence and attributes of God.” In his autobiography, he wrote: “Suppose a nation in some distant Region should take the Bible for their only law Book, and every member should regulate his conduct by the precepts there exhibited! Every member would be obliged in conscience, to temperance, frugality, and industry; to justice, kindness, and charity towards his fellow men; and to piety, love, and reverence toward Almighty God … What a Eutopia, what a Paradise would this region be.”
Thomas Jefferson wrote: “God who gave us life gave us liberty. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the Gift of God? That they are not to be violated but with His wrath? Indeed, I tremble for my country when I reflect that God is just; that His justice cannot sleep forever; That a revolution of the wheel of fortune, a change of situation, is among possible events; that it may become probable by Supernatural influence! The Almighty has no attribute which can take side with us in that event.”
And Patrick Henry wrote: “It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians; not on religions, but on the gospel of Jesus Christ. For this very reason peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here.”
2. Natural Law – The delegates to the Constitutional Convention of 1787 believed that certain human liberties are so fundamental to one’s existence, humanity, and individuality that they must come from our Creator. If that is the case, then no government can take them away. Natural law is also the basis of individual sovereignty. Natural law (and individual sovereignty) form the foundation for the Bill of Rights.
2. Individual Liberty – Our Founders saw Liberty as the opposite of tyranny. Freedom from dependence on another’s will. The ability to choose one’s own way without interference. Remembering the injustices that the King of Great Britain had imposed upon them, the colonists were adamant about protecting the individual rights of the people. They added the Bill of Rights as the first ten amendments to the Constitution in order to protect those God-given rights from any constraints or denial by the government. In a speech given in Charleston, South Carolina, on May 10, 1847, Daniel Webster said: “Liberty exists in proportion to wholesome restraint.” This is not to saw that liberty is something that needs to be controlled or restrained (especially by government). Webster understood that while God gave us our liberty, he set limitations on our conduct (set out in the Bible). So “wholesome restraint” is that which comes through religion, morality and ethics.
The Founders talk about Liberty and Freedom as two separate but connected ideals. Both of these words contain the idea of possessing the ability to exercise one’s will, and a power to choose. However, in many ways the words differ. ‘Liberty‘ comes from the Latin word ‘libertas,’ which means “unbounded, unrestricted or released from constraint.” ‘Libertas‘ even contains the idea of being separate and independent. The English word “Freedom” can trace its roots to the Germanic or Norse word ‘Frei,’ describing someone who belongs to a tribe and has the rights that go with belonging. This is something along the lines of “membership has its privileges.” Besides ‘freedom, the root ‘frei ‘ is also the root of the English word ‘friend.’ [Breed’s Hill Institute]
John Locke described “liberty'” as: “The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule.” (Second Treatise on Government). The Virginia Bill of Rights read: “”That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
Individuals live in communities. They join together for general advantages, such as hiring police to watch their common property or other public services. (Note that individuals themselves have the right to property and therefore, the right to protect their property. They then transfer some of that right to law enforcement for a general or common function. It is easy to understand, then, how government becomes established). Communities form for general advantages and not for particular individuals to benefit at the expense of others. A by-product of this is that rules must be established to impose limits on individual behavior and to establish order. All rules in one way or another serve to limit freedom of action. However, when rules are applied generally, and in furtherance of benevolence and right reason, they limit or deter malevolent actions and thereby expand liberty for all. As James Madison said: ” If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”
Unfortunately, when rules become too numerous and detailed, they can destroy liberty just as surely and effectively as having no rules. And the tendency is certainly in the direction of too many rules. We see that today. Traditionally the obsession within societies has been the horrors of disorder. With theft, robbery, murder, carjackings, rape, riot, and mayhem becoming commonplace in too many communities, the loss of liberty has been seen as the unavoidable cost of maintaining order.
3. Individual Sovereignty – Certain fundamental rights are inherent in man. As our Founders reasoned: ‘How can we give consent to others – local government, state government, etc – to make rules for us if we don’t have the original power to make rules for ourselves?” They therefore concluded that individuals indeed have such natural rights that only individual sovereignty could morally defend. If the primary object of government is to secure the rights of man in Life, Liberty, and Property (John Locke), then the premise is that the individual has the sovereign right to such.
It was the sovereign people (“We the People”) who created the United States under the Constitution.
4. State Sovereignty – The supreme, absolute, and uncontrollable power by which an independent state is governed and from which all specific political powers are derived; the intentional independence of a state, combined with the right and power of regulating its internal affairs without foreign interference.
Sovereignty is the power of a state to do everything necessary to govern itself, such as making, executing, and applying laws; imposing and collecting taxes; making war and peace; and forming treaties or engaging in commerce with foreign nations. [The Free Dictionary]
5. Federalism – Most of the delegates to the convention were reluctant to form a national government that would take power from the states. At the same time, they recognized a need for a stronger national government that would provide defense against foreign aggressors and resolve disputes between the states; therefore, they instituted a government structure called federalism that assigned specific powers to the national government and left all remaining powers with the states. The system drafted at the Convention and adopted and ratified by the States (after the addition of the Bill of Rights, and specifically here, the Tenth Amendment) left the bulk of jurisdictional power to the individual states.
In The Federalist No. 45, James Madison explained the division of sovereignty and power: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state.”
In The Federalist No. 31, Alexander Hamilton wrote: “The State governments, by their original constitutions, are invested with complete sovereignty….. As in republics, strength is always on the side of the people, and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over them… (We must) confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Everything beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments.”
6. Limited Government – The careful drafting of the Constitution reflected the Framers’ intent to limit the ability of the federal government to exercise any more power than the citizens (aka, the States) agreed to give it. With the powers of government strictly limited, citizens could be free to pursue their individual visions of happiness. The Founding Fathers shared Thomas Jefferson’s vision for the new nation – unburdened individual liberty, personal responsibility, and limited government. According to Jefferson’s own Declaration of Independence, the main purpose of government is to secure the rights of its citizens to “Life, Liberty, and the Pursuit of Happiness.” As the Founders believed, a small government with limited powers would be best to safeguard its citizens’ liberties over a government with unlimited powers because the latter would have the tendency to misuse those powers. The Founders wanted to prevent any opportunity for government tyranny and oppression. They wanted the people to be the master and the government to be the servant. The government was to serve the people. As Patrick Henry warned: “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government – lest it come to dominate our lives and interests?” It’s simply our duty as Americans and as guardians of the very safeguards of Democracy and Freedom to know our History. The American people are the final check in our system of checks and balances. It is only with an educated populace that we can perform this great task.
7. Rule of Law–
Our nation was set up as a republic rather than a true democracy. It is a Constitutional republic because the Constitution is the Supreme Law of the land. It is a nation of laws and not a nation of men. The Constitution and all laws made in pursuance and in compliance with it control the governing process and not mob mentality. With a republican form of government, there is a degree of insulation between the people (who might try to rule in a frenzied mob style) and government rule. A democracy is mob rule. The majority often rules by self-interest and with “passion” and “feeling.” They are moved by the sentiments of the time. In a democracy, the individual, and any group of individuals composing any minority group, have no protection against the unlimited power of the majority. A republican form of government, on the other hand, has a very different purpose and an entirely different form, or system, of government than a pure democracy. Its purpose is to control rule-making. More specifically, its purpose is to control the majority and to prevent it from oppressing minority groups. It is designed to protect the individual’s (EVERY individual’s) God-given, unalienable rights and the liberties of people in general. Our particular republican form of government has a separation of power because our Founders understood the inherent weakness and depravity of man. They knew that people are basically weak, sinful and corruptible, and will pit one men against another other, making it difficult to pass laws and make changes that are fair to everyone. As James Madison noted in The Federalist Papers (Federalist No. 55): “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust: So there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government (that of a Republic) presupposes the existence of these qualities in a higher degree than any other form.”
Consider the possibility of having no rules. Rather than the Rule of Law we would have the Rule of Force. Everyone would be free to do whatever he wanted as long as he possessed the power or ability (including ability to buy or bribe) to force his will on others. This would include the ability to bribe or financially acquire power. In this setting, people would be forced to compete by using unrestrained brute strength or financial advantage and there would be no freedom in the meaningful sense of “independence of the arbitrary will of another.” (F. A. Hayek) If one person had enough physical power he could force others to work for him without compensation, to be his slave. But, in this scenario, without laws that protect man equally, the master today has no assurance that he will not be someone else’s slave tomorrow.
8. Separation of Powers and Checks and Balances – The Separation of Powers doctrine was inspired by John Locke and implemented in the Constitution by the Framers to do one primary thing: to prevent the majority from ruling with an iron fist and to prevent any one branch from becoming too powerful. Separation of Powers ensures that each branch operates within Constitutional limits and doesn’t become destructive of Constitutional aims. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power between the Legislative, Executive, and Judicial branches and is known as the system of Checks and Balances. Each of these branches has certain powers, and each of these powers is limited, or checked, by another branch.
As James Madison wrote in The Federalist No. 51: “In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind necessity of auxiliary precautions.”
6. Free Markets – The Founders embraced the economic philosophy put forth by Adam Smith (in his book Wealth of Nations published in 1776) which is the capitalism system we have today. Smith wrote that the most efficient economic system is driven by supply and demand and by pure competition. Smith believed that the “free market” system would work most effectively in the absence of government interference. Such a laissez-faire (a term popularized by Wealth of Nations meaning “leave alone” or “allow to be”) policy would, in his opinion, encourage the most efficient operation of private and commercial enterprises. He was not against government involvement in public projects too large for private investment, but rather objected to its meddling in the market mechanism. He also held that individuals acting in their own self-interest would naturally seek out economic activities that provided the greatest financial rewards. Smith was convinced that this self-interest would in turn maximize the economic well-being of society as a whole. Finally, he argued that true wealth did not lay in gold but rather in the productive capacity of all people, who are properly motivated (rewards of risk—taking and investment) and through hard work and worth ethic, each seeking to benefit from his or her own labor.
The bottom line is that the Constitution was crafted with two very important principles in mind – that the individual states retain as much sovereign power as possible and that our government have only limited and clearly-defined responsibilities and limited authority. The majority of power was to remain in the hands of the local population. The principles of federalism, limited and clearly-enumerated powers, separation of powers, and checks and balances are all important Constitutionally-imposed limits on the power of government, which was the vision of our Founders (especially Jefferson). The principles of Federalism and limited government were the foundation of our system of government to ensure that the federal government would not become large, would not become intrusive, would not become powerful, and would not encroach on the rights of the states to maintain their own character and to solve their own problems. This was the clear intent in the drafting of our Constitution.
The first task before the Founders was establishing the foundation on which we derive our basic and most fundamental freedoms. They embraced the “Natural Law” philosophy proposed by Marcus Tullius Cicero of ancient Rome and of later (English) philosophers such as John Locke, Sir William Blackstone, and Thomas Hooker, and even of Jesus himself. It is worth looking at Cicero’s concept of “Natural Law.” Cicero came to be enlightened one day while he was walking and trying to imagine what an ideal Rome would be like. As the foremost lawyer of his day, he was concerned with law. He wondered where laws came from. He came to conclude that law, that which distinguishes good from bad and which discourages and punishes the latter, did not originate from man alone. That is, law was not a matter of written statutes but was a matter deeply and fundamentally ingrained in the human spirit. Cicero’s reasoned as follows:
1). There is an order to the universe: Creator – Universe – People – Governments. There is a Creator who created the universe then created people. People, in turn, form into communities, and in order to keep their communities ordered, they establish local governments. Finally, local governments give rise to central governments. [It’s like: What came first.. the chicken or the egg?] Natural law is what spontaneously arises when there is no government, because of “who we are” and who created us.
2). Humans, like the Earth and the universe itself, were created by a higher power (a Creator; a God)
3). This higher power which created the universe also endowed humans with a bit of its own divinity (that is, He gave us the powers of speech, intelligent thought, reason, and wisdom).
4). As a result of this “spark of divinity,” humans are and should be (forever) linked to their Creator and should honor this relationship.
5). Because humans share reason with this higher power, and because this higher power is presumed to be benevolent, it follows that humans, when employing reason correctly, will also be benevolent.
6). Reason and benevolence (termed “right reason”) is therefore the foundation of law. When this is applied in a society, it is JUSTICE.
7). Natural Law is timeless; It is valid for all nations for all times.
8). It operates best when men are virtuous and honorable. It fails when men are greedy and depraved.
As Cicero explained in his many writings (which were read by our Founders), law is whatever promotes good and forbids evil. What corrupts good law are the age-old human failings of wealth, greed, desire for status, lust, and other inconsequentials outside of virtue and honor.
In short, according to Cicero, the only intelligent approach to government, justice and human relations is in terms of the laws which the Supreme Creator had already established. The Founders took from Cicero an idea that was revolutionary in terms of a governing a body and that idea was that the glue which binds human beings together in any commonwealth of a just society is love – love of God, love of God’s great law of justice, and love of one’s fellow man – which provides the desire to promote true justice among mankind. In order to eliminate depravity of society it was necessary to respect this natural order and to love God, oneself, and one another. If man could do this, then his ability to reason and rule would be done justly and in a benevolent manner, and he would therefore be guided by “right reason.”
In other words, Natural Law, the bedrock principle of our founding documents, states that our rights come from God and not from any government. John Locke took the concept of Natural Law one step further and applied it to government. According to Locke, people (not rulers or governments) are sovereign. Individuals have sovereign rights which no government can take away. As such, government is morally obliged to serve people, namely by protecting life, liberty, and property, and to do so with limited powers and applying the principle of checks and balances so as to be sure to government remained honest and focused or beholden to its goals. This is the bedrock principle of Locke’s view of government. He explained that natural law tradition could be observed with the ancient Jews and that rulers, when properly constrained, would legitimately serve justly because there are moral laws that apply to everyone.
As Locke wrote in the two volumes of his Treatise on Government (1689 and 1690), private property is absolutely essential for liberty. He referred not only to real property but also to intellectual property. “Every man has a property in his own person. This no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his,” he wrote. Locke believed people legitimately turn common property into private property by mixing their labor with it, their intellect, their personality, their ambition, their business skills (and other intangible human qualities) and improving it. In other words, he believed that property is a series of transformations. Man has a property right in himself and his skills which is then transformed into money or bartering power, which is then eventually transformed into private property (real and chattel).
It is from the thinking of men like Cicero, as well as the teachings of the Bible, and including the teachings of Jesus himself, that the Founders had the vision to ground our fundamental freedoms in Natural Law. It is easy to see how strongly our Founders were influenced by Cicero’s writings. Our nation wasn’t influenced by atheist principles, but rather by principles grounded in a belief in God. The Declaration of Independence proudly proclaims that we as a nation believe in a Creator who has endowed us with our fundamental rights. Let us note that while our Constitution establishes and defines our government, it is the Declaration of Independence which establishes our nation’s value system.
While the concept of Natural Law has clearly been around for a long time, the Declaration of Independence was the first to embody it in a national document. The US Constitution is the first constitution to be based on this principle and to embrace Locke’s philosophy that because people have sovereign rights and not rulers or government, government is therefore morally obliged to serve the people by protecting their life, liberty, and property. To the extent that our government protects individual rights, government operates legitimately. However, when it fails to protect such rights or when it imposes upon them, it becomes an illegitimate ruler over what would otherwise be free people. Governments who do not acknowledge this supreme order of rights have no duty to recognize them.
The next task before the Founders was what kind of system to create. They knew what kinds of liberties had to be secured and protected, but what was the best system to protect them ?
The Founders understood that throughout history, people have been ruled by systems that range anywhere from King’s Rule (tyranny) at one far end to complete Anarchy at the other far end (which is the absence of law). The Founders recognized the bad in both. Tyranny was oppressive and people alone, without laws, would become a mob and would resort to the lowest forms of human behavior. Consequently, they wanted to establish a system of “People’s Law,” which is someplace halfway between King’s Rule and Anarchy – halfway between tyranny and mob rule. Under “People’s Law, the government is kept under the control of the people and political power is maintained at the balanced center with enough government to maintain security, justice and good order, but not enough government to abuse the people and intrude in their lives. “People’s Law” is in the middle between “Ruler’s Law” (King, or other tyrant is the rules; tyranny) and “Anarchy (where there is no law at all). They embraced the system of “People’s Law,” which derived from the Israelites and Anglo-Saxon common law and includes the concepts of government by consensus, natural or God-given rights for the people, power dispersed among the people, individual responsibility, rights being unalienable, a system of justice including reparations for wrongs, and a system to solve problems on the level on which they were created. The Founders, especially Thomas Jefferson, admired the institutes of freedom under “People’s Law.” In fact, our system was strongly influenced after the system of government and the rules established by Moses after the Israelites were freed from their bondage in Egypt.
In the Federalist Papers, No. 9, Alexander Hamilton refers to the “sensations of horror and disgust” which arise when a person studies the histories of those nations that are always “in a state of perpetual vibration between the extremes of tyranny and anarchy.” The Founders’ task was to somehow solve the enigma of the human tendency to rush headlong from anarchy to tyranny – the very thing which later happened in the French Revolution. How could the American people be constitutionally structured so that they would take a fixed position at the balanced center of the political spectrum and forever maintain a government “of the people, by the people, and for the people,” which would not perish from the earth?
The answer, the Founders believed, was minimal government with maximum individual liberty. And the way to achieve this was twofold: First, the Founders realized that most of the people’s power would have to remain within the State and relegated to the individual State. Limited power would be ceded by the States to the federal government on matters that would relate on matters touching on the nation as a whole, such as national security, conducting relations with foreign nations, raising an army, entering into treaties, establishing policy with the Native Indians, regulating commerce among states so that certain states don’t have too much of an advantage in trade compared to others. And second, the powers delegated to the government would have to be limited and clearly-defined.
James Madison described the division of labor between the states and the federal government as follows: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state.” [The Federalist Papers No. 45].
The fixing of the American eagle in the center of the spectrum was designed to maintain this political equilibrium between people in the states and the federal government. The idea was to keep the power base close to the people. The emphasis was on strong local self-government. The states would be responsible for internal affairs and the federal government would confine itself to those areas which could not be fairly or effectively handled by the states. The term, or concept, that relates to this division or sharing of power between the states and government is called “Federalism.” It is this sharing of power, with the bulk of power remaining closest to the people, that will protect individual liberty best.
The concept of federalism makes sense when you consider the position of the individual states. Prior to the Constitutional Convention, the states were sovereign powers who viewed the idea of a strong centralized government with absolute distrust. They didn’t want any entity exerting power over them, especially since they’d managed to exist for over 150 years successfully and independently. The colonies were established to allow the settlers in each state to worship and practice as they desired and to establish communities which embraced their religious principles. The colonists were people who came from England and other European countries where they were repressed religiously or persecuted for their beliefs. The states took their sovereignty and their local laws and customs very seriously. At the time of our independence from England, each state was a sovereign little nation. [We refer to them as “colonies” which denotes something relatively unstructured, but the fact is that they were basically independent nations. They each had their own government and they had no legal ties to the other states, except through any arrangements they may have made for trade and commerce]. The states (colonies) fought long and hard for their independence from Britain, a nation with a tyrannical government. They wanted to make sure that they did not create a new tyrannical government in its place. They didn’t want to give up their rights as sovereign states and they certainly didn’t want a federal government that was more powerful than them. They didn’t want a federal government to tell them what they can and cannot due within their boundaries. In Article II of the Articles of Confederation, the Founders attempted to make this guarantee by preventing the federal government from taking too much power from the states. In Article II, our Founders provided: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” (The Articles of Confederation failed because the states retained too much power and consequently, the central government lacked any meaningful enforcement power over them). At the Convention of 1787, the topic of states’ rights versus government powers again dominated the discussion. The states intended only to give up just enough sovereign power to overcome the inadequacies of the Articles of Confederation and no more. One of the predominant arguments was over which rights the federal government would have and which rights the states would retain. It was this heated debate that eventually would cause the states to approach the Constitution with caution and take four years plus ten amendments (Bill of Rights) before they would ratify it.
As Jefferson wrote: “I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people’ (10th Amendment). To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible to any definition.” In other words, Jefferson considered the Tenth Amendment to be the cornerstone of the Constitution and by extension, believed federalism (the division of power) to be the most important government feature in keeping the government restrained on behalf of the people.
Justice Kennedy, in writing the opinion for the Supreme Court in Bond v. United States (June 2011), went into a detailed explanation of the importance of federalism to ordered and individual liberty. He wrote:
“The federal system rests on what might at first seem a counter-intuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ Alden v. Maine, 527 U. S. 706, 758 (1999). The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.
The principles of limited national powers and state sovereignty are intertwined. While neither originates in the Tenth Amendment, both are expressed by it. Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, see New York v. United States, 505 U. S. 144 (1992), at 155–159, and action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States. See United States v. Lopez, 514 U. S. 549, 564 (1995).
Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.
But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” New York v. United States, 505 U. S. 144, 181 (1992) (quoting Coleman v. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)).
Some of these liberties are of a political character. The federal structure allows local policies ‘more sensitive to the diverse needs of a heterogeneous society,’ permits ‘innovation and experimentation,’ enables greater citizen ‘involvement in democratic processes,’ and makes government ‘more responsive by putting the States in competition for a mobile citizenry.’ Gregory v. Ashcroft, 501 U. S. 452, 458 (1991).
Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.
Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.
The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. [See New York, supra, at 181]. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.” [Bond v. United States, at pp. 11-13]
The design of our government, as given to us by our Founders, was precisely to make sure that our fundamental rights will always be respected and protected. Everything about its design, from the preamble and reference to the Declaration of Independence, to the grant of limited and specific powers, to our Bill or Rights, to the Tenth Amendment, to the existence of three branches of government, and to our system of checks and balances speaks to the ultimate desire of our Founders to protect our fundamental liberties from government intrusion, both personally and economically.
Cleon Skousen, author of The 5000-Year Leap, wrote a concise summary of the principles embodied in the Constitution: “A free people living in a civil society, working in self-interested cooperatives, and a government operating within the limits of its authority, promote more prosperity, opportunity and happiness for more people than any alternative ever devised by man.” In looking at some of the failed regimes of history, it is easy to understand how our Founders came up with this magical formula.
Ancient Rome flourished as a republic. Rome’s greatness had many causes: the virtue of its citizens, the system of consuls, the senate’s wisdom, the limited influence of the people, the flourishing economy, the military triumphs, the public sharing of wealth, the equal partition of land, and the broad distribution of political power. The people were filled with a passionate and indomitable love of country, and the Senate sustained a military and foreign policy that led unceasingly to the defeat and subjugation of Rome’s enemies. Eventually, power would be concentrated into individual powerful men – the Emperors, or Caesars – who sought to exert greater control over citizens. They were often immoral, lecherous, power-hungry, corrupt, barbaric, and mistrustful, holding Roman citizens in contempt. Emperors from Augustus to Caligula became increasingly more cruel and tyrannical. They looked at the Senate with contempt and stripped it of its power and its political function. In doing so, they stripped the people of their voice, their influence, and their dignity. The more laws they placed on the Roman people, like heavy taxation, re-introduction of conscription, and requiring that male children adopt the profession of their father (as under Diocletian, 284-305 A.D.), the less the people were able to embrace liberty, sow its seeds, and produce its fruit. A “tempered spirit” took over Rome, stifling creativity and squashing ambition. Towards the end of the empire, economic growth was low, there were fewer jobs, and there were fewer risk-taking entrepreneurs. Taxation and regulations were so burdensome that landowners began to flee to barbarian territories to avoid them. Government needed increasingly more tax revenue to pay its debts. To pacify the growing discontent of the Roman people, Emperor Diocletian started offering entertainment and freebies to keep the people happy and preoccupied. They called the ploy “bread and circuses.” To calm the people, the Emperor would feed them and distract them, and maybe in that way, they wouldn’t realize what the government’s done to them. In the end, it wasn’t necessarily the invasion of Germanic tribes and the deposing of Roman Emperor Romulus Augustus in 476 A.D. which led to the decline or fall of Rome. It was the collapse of the political, economic, military, and other important social institutions of Rome which rendered the nation incapable of preventing the invasions from the north. The people had become apathetic. They no longer cared enough about their way of life to defend it.
Ancient Greece went down a similar path. It was the nation that gave the world its first democracy. But it was not a stable nation. In fact, it wasn’t even a nation at all; it was a series of city-states. Its fatal flaw was a lack of leadership. Athens was the dominant city-state for a long time and finally, in a war against its rival, Sparta, it was defeated. This was the Peloponnesian War. Other city-states were encouraged that with Athens weakened, there would finally be a chance for fair leadership and unity rather than domination and isolation, but Sparta failed to make that happen. Instead, oligarchies emerged. Leaders arose who were wealthy but not elected by the people. In times of crisis, instead of relying on ingenuity and sacrifice, the people turned in their freedom for an absolute ruler… for a King. Instead of producing for themselves, they would battle with their neighbors, other cities, and take what they had. The Greek historian Thucydides explained that the Greeks tried to escape their poverty by “coveting the property of their neighbors.” They had become greedy. Polybius, another historian, wrote: “The people have become accustomed to feeding at the expense of others.” In the end, because they couldn’t get along with each other, they were not strong enough to defeat the Romans and eventually Macedonia was incorporated into the Roman Empire.
Our Founders knew best than to leave the function of government to those who think “they know best.” The design of our government was a thoughtful, intentional plan. While many today criticize it for being rigid and not applicable to our ‘changing times” (not adequate to govern a modern county), the fact is that the principles and concepts it embraces are timeless. For those who think otherwise is to jeopardize the very anchors of our Republic and the very securities of our liberties. For those who think government knows best and can govern more effectively than States and individuals, then just look at the degenerate progression of ancient Rome, Greece, Russia, and Nazi Germany. Decay begins with concentrated power in those, who if given the chance, would deny liberty to others.
Richard Stengel of TIME magazine wrote a piece asking if the Constitution still matters (“The Constitution: Does it Still Matter?”). He questioned whether our Constitution, as written and intended, is effective to deal with today’s issues. He wrote:
“Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.”
What Stengel and those of similar mind fail to appreciate is that the principles of government laid out in the Constitution were already “outdated” in 1787. For example, the Constitution’s core concepts of separation of powers and federalism were already well-established features of republican governments in Greece and Rome.
In light of this fact, why did the generation of men who lived at the time of the framing of the Constitution (including those who disagreed with its ratification) not disparage those ancient concepts as being “out of touch” with the needs of an 18th Century population, separated from the people of ancient Rome and Greece by over a millennium? They didn’t make that point because, unlike TIME magazine, they understood that those principles of political philosophy were timeless and the statesmen of antiquity advocating those principles were men of sound understanding and not given to being tossed about by the ever-shifting winds of popular opinion. To build the Constitution of the United States upon a foundation as solid and reliable as those that supported the exemplary republics of Rome and Greece was an act of unquestioned good sense, regardless of how old those principles were.”
In summary, the Constitution guarantees We the People protection of our fundamental inalienable rights, provides that government will be limited in size and in scope, and promises that jurisdiction will be divided carefully between the States and a federal government to ensure the first two. If an answer or issue is not contained, even remotely, in the Constitution, then it is left to the judgment of the state and its legislators. The Constitution was never meant to restrict the people’s power to govern themselves over the full range of policy area that the Constitution left available to them.
Other regimes got into trouble when it doubted the people’s ability to govern themselves properly and allowed the government to grow accordingly. Our Founders took great steps to prevent any ruler or representative from making such a judgment call.
Every American should read the Constitution and read comments and documentary from the drafters as to why the Constitution was written as it was. A good start are Federalist Papers, the Anti-Federalist Papers, and the debates in the various state ratifying conventions (especially New York, Virginia, and North Carolina, the last three states to ratify). To paraphrase something that Supreme Court Justice Antonin Scalia once wrote, we should never apply a “fuzzy” meaning to the Constitution but rather, we should simply take the time to read it.
Skousen, Cleon, The 5000-Year Leap. American Documents Publishing, 1981.
Beck, Glenn, Broke. Threshold Editions, 2010.
“American War Deaths Through History,” Military History. Referenced at: http://www.militaryfactory.com/american_war_deaths.asp
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Jim Powell, “John Locke: Natural Rights to Life, Liberty, and Property,” The Freeman, Volume 46, Issue 8, August 1996. Referenced at: http://thefreemanonline.org/featured/john-locke-natural-rights-to-life-liberty-and-property
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Stanley Kober, “The Spirit of Humility,” The Cato Institute, Volume 17, Issue 2, 1995. Referenced at: http://www.cato.org/pubs/journal/cj17n2-8.html
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Lewis Lehrman, “Mr. Lincoln and the Declaration,” Mr. Lincoln and The Founders. Referenced at: http://www.mrlincolnandthefounders.org/inside.asp?ID=1&subjectID=1
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Bond v. United States, 564 U. S. ____ (2011). Retrieved at: http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf
“The Meaning of Liberty,” Breed’s Hill Institute. Referenced at: http://www.breedshill.org/meaning_of_liberty.htm
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Joe Wolverton II, “Time Magazine cover Story Asks: Does the Constitution Still Matter,” The New American, June 24, 2011. Referenced at: http://www.thenewamerican.com/usnews/constitution/7989-time-magazine-cover-story-asks-does-the-constitution-still-matter