which constitution

Which Constitution? America’s Critical ChoicePresentation to the VALS Winter Board Seminar, January 30, 2016Gary R. Porter, Executive Director, Constitution Leadership Initiative, Inc.

The Problem Burdened by $20 Trillion in official national debt and

$100+ Trillion in unfunded obligations, America faces a critical choice: continue the present course to near-certain bankruptcy, or make significant, perhaps monumental changes in how government operates.

Before choosing, it bears reflecting on how we arrived at this point.

What is a Constitution?Black’s Law Dictionary, 4th Edition:“The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers.” (emphasis added)

America’s First Constitutions: The Colonial Charters

Each colony was governed by a charter, whether proprietary or royal.

The charter was an agreement between the colonists and the King.

Each charter described how the colony was to be governed, and the rights the colonists would enjoy.

Notably, the charters did not mention Parliament.

Virginia’s Charter HistoryFirst Charter – 1606Government by two 13-man councils, one in

“Jamestowne,” one in England. [The colonists] “shall HAVE and enjoy all Liberties,

Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions.”

Virginia’s Charter HistorySecond Charter – 1609Extended Virginia’s land boundaries “sea to sea.”A Governor and Governor’s Council was appointed

to rule.

Virginia’s Charter HistoryThird Charter – 1611Extended Virginia’s jurisdiction eastward to include

islands such as BermudaWith no profits to share, the Virginia Company

began distributing 50-acre plots of land to settlers and investors

Virginia’s Charter HistoryA Banner Year – 1619America’s first representative government instituted:

The Virginia House of BurgessesNow ruled by a Governor, his council, and 22 elected

representatives

It didn’t take long before….

Parliament Started “Meddling”1630 – Navigation Acts1660 – Wool Act1733 – Molasses Act1751 – Currency Act1764 – Sugar Act1765 – Quartering Act1765 – Stamp Act1766 – Declaratory Act: Declared that Parliament's

authority was supreme in making laws binding on the American colonies.

Then Parliament Kept “Meddling”

1773 – The Tea duty, followed by the Tea “Party” 1774 – Boston Port Act 1774 – Quartering Act 1774 – Administration of Justice Act 1774 – Massachusetts Government Act Feb 1775 – Parliament declares Massachusetts to be

in rebellion. Apr 1775 – Skirmishes at Lexington and Concord

The Colonies React1765 - The Stamp Act Congress (9 colonies only ) Meets in NYC and issues a “Declaration of Rights and

Grievances.”Sep 1774 – 1st Continental Congress meets Issues a “Declaration and Resolves.”

May 1775 – 2nd Continental Congress meets Issues a "Declaration on the Causes and Necessity of

Their Taking Up Arms.“May 1776 – 2nd Continental Congress resumes Issues a “Unanimous Declaration of the thirteen united

States of America”

The Declaration of Independence

The Preamble: “When in the Course of human events,…”The Introduction: “We hold these truths…”The Complaints: “He has refused his Assent to Laws…”The Conclusion: “We, therefore, the Representatives of

the united States of America…”

Complaint #13 “He has combined with others to subject us to a

jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended legislation:…”

America’s Unwritten Constitution

Some features of this Constitution can be discerned from the complaints in the Declaration:


General principles of government: The purpose of Government is to secure man’s unalienable,

God-given rights Government derives its “just” powers from the governed Government is not permanent, it can be abolished and

replaced by new forms But, the form of government is unalterable without the

consent of the governed Government should not incite its citizens to insurrection


• The Executive:– The Executive (and the government as a whole) must not become

tyrannical– The Executive must not dissolve Representative bodies

unilaterally

• The Legislature:– The Legislature’s laws must be implemented, they cannot be

ignored– Legislative bodies must have the latitude to set their own agenda

and rules, free from constraint or influence from the Executive– The power to legislate is permanent and devolves to the people

when suspended– Rules for immigration and naturalization fall under the purview of

the Legislature, not the Executive


The Judiciary and the Law: Government should have a Judiciary power Judges should be independent and act free from influence by

the Executive Military law should be subservient to civil law Infractions by the military must be punishable in civil court


The People’s Rights: The right to be secure in their life, liberty and their pursuit of

happiness (or property) The right of representation in government The right of habeas corpus and local trial The right of petition for redress of grievances The right to be taxed only by consent The right to first consent to quartering troops

The People’s Duties: An obligation to make their objections known The duty to throw off oppressive government


If America had an unwritten Constitution in 1776, could it have one still today?

I think so, as do others:

Hold that thought!

America’s Next Constitutions: The State Constitutions

New Hampshire enacted a new state Constitution on 5 Jan 1776.

South Carolina followed on 12 April. On 10 May Congress encouraged any of the colonies who had

not yet done so to form new governments. The rest of the colonies followed:

Virginia June 29, 1776 New Jersey July 2, 1776 Delaware September 21, 1776 Pennsylvania September 28, 1776 Maryland November 11, 1776 North Carolina December 18, 1776 Georgia February 5, 1777 New York April 20, 1777 Massachusetts March 2, 1780 (Rhode Island and Connecticut continued under original charters)

America’s Next Constitution?The Articles of Confederation

Drafted June 1776 Not approved by Congress until

Nov 1777 Not ratified until March 1781

More like a treaty than true Constitution

Didn’t create a “government” Any changes required unanimity

– impossible to achieve Congress unable to raise money,

control commerce

Bottomline: The Articles Didn’t Work!April 1787 – James Madison writes: “Vices of the

Political System of the United States”Defects in the Articles:

Congress given very few powers No Executive No Judiciary No permanent governmental administrative structure

Results of these Defects: Congress perpetually “broke,” debacle at Valley Forge No way to settle disputes between the states State courts became “tyrannical”

Shay’s Rebellion was a “wake-up call”Talk of separate confederations

The States Take ActionMt Vernon Conference, March 21-28, 1785Annapolis Conference, September 11–14, 1786The “Grand Convention,” May 24- September 17,

1787

The Constitution of 1788Fifty-five delegates attendedForty-two present on final dayThree withheld their signaturesA “sparse” document (only 4543 words in 7 Articles)Compromises over slavery, representationRatification was unlikely without promise of a Bill of

Rights “Bill of Rights” added December 15, 1791 by Virginia’s

ratification of 10 of 12 proposed amendmentsThis allowed North Carolina and Rhode Island to ratify.

Principles of our ConstitutionLimited Government, Enumerated PowersFederalismSeparation of powersChecks and balances

Limited Government: That Was Then “[T]he powers of the federal government are

enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects.”

James Madison, Speech in the Virginia Ratifying Convention, June 6, 1788

Limited Government: This is Now At a townhall meeting in Hayward, California on July 24,

2010, Congressman Peter Stark was asked about the constitutionality of the Affordable Care Act (aka, Obamacare):

Federalism: That Was ThenFederalism is a system of shared power.As part of the original federalism plan in the

original Constitution, the States also exerted power in the Senate; each state appointed its Senators, and could recall them if they did not vote in the State’s best interest,

i.e., the States could block legislation in Congress through the votes of their Senators

Federalism: This is NowThe 17th Amendment changed appointment of

Senators by State legislatures to election by popular vote

No longer could State legislatures directly influence the passage of legislation in the Senate.

States must now use other means to block unconstitutional federal power (nullification, interposition, court suits, etc)

Separation of powers: ThenThe Legislative Branch (Congress) legislates, the

Executive Branch executes and enforces, and the Judicial Branch settles “cases and controversies.”

“That the legislative and executive powers of the state should be separate and distinct from the judiciary; Virginia Declaration of Rights, Section 5.

“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.” Article 1, Section 1

Separation of powers: Then “For it being but a delegated Power from the

People, they, who have it, cannot pass it over to others. . . . And when the people have said, We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them.”

John Locke, 1690

Separation of powers: Now “Applying this "intelligible principle" test to

congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it "constitutionally sufficient" if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” Mistretta v. United States

Separation of powers: NowThe result: “Rules” with the force of law. Executive agencies with rule-making power, rule-

enforcing power, and rule-adjudicating power (i.e. legislative, executive, and judicial powers are co-located)

35 executive branch agencies maintain administrative law judges

Social Security Administration has over 1,400, who adjudicate over 700,000 cases each year*

* https://en.wikipedia.org/wiki/Administrative_law_judge

Checks and Balances: ThenExamples of “check and balances:”

The President appoints senior officers, but the Senate must confirm them

The President negotiates treaties, but the Senate must ratify The Congress passes legislation, but the President can veto The President can veto, but the Congress can override The Congress can limit the Supreme Court’s appellate

jurisdiction The Congress can un-fund an executive action it deems

inappropriate The Congress can impeach and remove from office judges

and senior officers

Checks and balances: NowEven though many Presidents have exceeded their

constitutional powers or sought to enlarge them, only two Presidents have been impeached in our history (Andrew Johnson and Bill Clinton)

Congress has used “jurisdiction stripping” at times but not all Congressmen know of this power

Congress has used the “power of the purse” on occasion

Veto overrides are impossible to achieve in an evenly divided Congress

Commerce Clause: Then & Now The Commerce Clause was written to allow Congress to

regulate (i.e., make regular) commerce between the states. “[The Congress shall have Power] To regulate Commerce

with foreign Nations, and among the several States, and with the Indian Tribes;”

In “Today’s Constitution”, the Commerce Clause takes 123 pages to explain.

Thanks to numerous rulings, the commerce clause now provides Congress the power to regulate any aspect of U.S. business whether goods cross interstate boundaries or not.

Poster child: Wickard v. Filburn. Farmer Filburn was denied the right to grow wheat for his own animals because to allow that would affect the interstate market in wheat.

General Welfare: Then & Now The Congress shall have Power To lay and collect Taxes, Duties,

Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;” Article 1, Section 8, Clause 1

“If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.” James Madison, letter to Edmund Pendleton, 1792

"The true test is, whether the object be of a local character, and local use; or, whether it be of general benefit to the states. If it be purely local, congress cannot constitutionally appropriate money for the object. But, if the benefit be general, it matters not, whether in point of locality it be in one state, or several; whether it be of large, or of small extent." --Joseph Story, Commentaries on the Constitution, 1833

General Welfare: Then & Now “Congress may spend money in aid of the 'general welfare'...

The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.” Helvering v. Davis (which sanctioned Social Security)

The Judicial PowerArticle 2, Section 2, Clause 1: “The judicial Power

shall extend to all Cases, in Law and Equity, arising under this Constitution,…”

These words have become:

“The Constitution is what the judges say it is” Future Supreme Court Justice Charles Evan Hughes.

Remember America’s Unwritten Constitution?

The Constitution: Then Original Constitution: 4543 words (Articles 1-7), 7591 words

counting the 27 amendments

The Constitution: TodayWelcome to: “U.S. Constitution, Analysis and

Interpretation.”Purchase from the Government Printing Office. ($290)Downloadable in PDF format from .gov websites.Contains all relevant federal court opinions affecting

Constitutional interpretation.The official interpretation of the Constitution used by

Congress.

Newly-elected Congressmen are provided a copy upon arrival in Washington.

So to the Question:We face a critical choice:Which Constitution would you prefer to live under:

the one describing carefully limited and enumerated powers, or the one the Supreme Court’s rulings has produced?

or

How Do We Return to a Limited Constitution?

1. Elect 435 representatives and 100 Senators who promise to ignore the near limitless power the Court has granted and operate only within the original meaning of the Founder’s Constitution, or…

2. Wait for the Supreme Court to revisit its earlier opinions and overturn those which granted the federal government excessive or unwarranted power, or…

3. Amend the wording of key constitutional clauses to remove the ambiguity the Courts took advantage of in granting the federal government the “power to do most anything.”

Which of these choices stands the best chance of success?

So You Want to Amend the Constitution?

Article V provides two methods of amending the Constitution:

1. Congress may pass a proposed amendment with a 2/3 vote of each house. They then send the amendment to the states for ratification, or

2. 2/3 of the states may petition Congress to call a convention at which amendments may be proposed; these are then sent to Congress for forwarding to the states for ratification.

Congress may choose whether amendments are to be ratified by state legislatures or in state conventions.

If ¾ of the states ratify, the amendment becomes part of the Constitution.


Thus far, Congress has proposed all 27 amendments to the Constitution.

Proposals to enact term limits, require a balanced budget, repeal the 17th Amendment and otherwise restrict the power of Congress have been introduced in Congress multiple years and have failed each time to achieve the required 2/3 vote of both houses.

Over the years there have been hundreds of state petitions calling for a convention, thus far Congress has not felt compelled to call one.

One reason: petitions in the past have requested a convention for a variety of purposes.


There have been 32 state petitions (2/3 of the states = 34) for a Balanced Budget Amendment convention, but three states subsequently retracted their petitions, leaving the count five short of requiring Congress to call the convention.

The Convention of States Project recommends states not specify a specific amendment in their call, but instead request a convention to propose amendments which: Limit the power and jurisdiction of the federal government Impose fiscal constraints on the federal government Limit the terms of office for its officials and for members of

Congress. Four states have passed, 21 considering this year.

Is a Convention Too “Risky?” Some contend a convention would place the entire

Constitution at risk. Come contend a convention cannot be limited to certain

types of amendments. Some contend that Congress, not the states will control the

operations of a convention.

All these concerns are addressed by Convention of States Project (www.conventionofstates.com)

There does exist a final option…

The Final Option

So, which option do you support?

Constitution Leadership Initiative Saturday Seminars are offered on the U.S. Constitution to

groups and individuals. Seminars for youth are also available Signup if you are interested

I write two weekly essays on the Constitution: Constitutional Corner – on a single Constitutional topic Constitution’s Week in Review – comments on recent headlines Signup to get on mailing list

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