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Why Does America Have a Written Constitution?

Recently I spent some time with a person I respect highly, who is very intelligent, and who has thought about and reached conclusions concerning America’s Constitution.  This person, who is representative of many others, believes that a document written hundreds of years ago is meaningless in today’s America.  He cited the fact that many of the Framers were slave owners, they could not have imagined a nation of hundreds of millions, they could not foresee the technologically rich environment we call home, or the diverse population that now constitutes the body politic.

None of the things cited above can be refuted because they are all true.

First of all, what is a constitution?  A constitution organizes, distributes and regulates the power of the state.  A constitution sets out the structure of the state, the major state institutions, and the principles governing their relations with each other and with the state’s citizens.

So, why do we have a written Constitution, and does this written Constitution still matter?

When the American Revolutionaries broke free from Great Britain they wanted to build their new nation on a solid foundation.  They most assuredly did not want what they had just rebelled against, a monarchy or an unlimited government.

Did the British have a constitution? In the Eighteenth Century just as it is now Britain is unusual in that it has an ‘unwritten’ constitution: unlike the great majority of countries there is no single legal document which sets out in one place the fundamental laws outlining how the state works. Britain’s lack of a ‘written’ constitution can be explained by its history. In other countries, many of whom have experienced revolution or regime change, it has been necessary to start from scratch or begin from first principles, constructing new state institutions and defining in detail their relations with each other and their citizens. By contrast, the British Constitution has evolved over a long period of time, reflecting the relative stability of the British polity. It has never been thought necessary to consolidate the basic building blocks of this order in Britain. What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution. It is thus more accurate to refer to Britain’s constitution as an ‘uncodified’ constitution, rather than an ‘unwritten’ one.

The British Constitution can be summed up in eight words: What the monarch in Parliament enacts is law. This means that Parliament, using the power of the Crown, enacts law which no other body can challenge. Parliamentary sovereignty is commonly regarded as the defining principle of the British Constitution. This is the ultimate lawmaking power vested in a democratically elected Parliament to create or abolish any law. Other core principles of the British Constitution are often thought to include the rule of law, the separation of government into executive, legislative, and judicial branches, and the existence of a unitary state, meaning ultimate power is held by ‘the center’ – the sovereign Westminster Parliament.  In other words there is neither check upon nor balance to the power of the government.  The entire shape, form, and substance of the government can change at any time by a simple majority vote of Parliament.  To sum up: the British Constitution is a living document.

This is what caused the revolution.  If you look at the list of particulars that are in the overlooked or forgotten part of the Declaration of Independence you see that many of these individual charges against the Monarch as the representation of the government are changes made by arbitrary and unilateral acts of Parliament.

  • He has refused his Assent to Laws, the most wholesome and necessary for the public good.
  • He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
  • He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
  • He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
  • He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
  • He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time (sic) exposed to all the dangers of invasion from without, and convulsions within.
  • He has endeavoured (sic) to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
  • He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
  • He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
  • He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
  • He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
  • He has affected to render the Military independent of and superior to the Civil power.
  • 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:

 

  • For Quartering large bodies of armed troops among us
  • For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States
  • For cutting off our Trade with all parts of the world
  • For imposing Taxes on us without our Consent
  • For depriving us in many cases, of the benefits of Trial by Jury
  • For transporting us beyond Seas to be tried for pretended offences
  • For abolishing the free System of English Laws in a neighbouring (sic) Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies
  • For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments
  • For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever

 

 

  • He has abdicated Government here, by declaring us out of his Protection and waging War against us.
  • He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
  • He is at this time transporting large Armies of foreign Mercenaries to compleat (sic) the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
  • He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
  • He has excited domestic insurrections amongst us, and has endeavoured (sic) to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

The colonists tried to follow the procedures as they knew them to find relief within the system.  But they were ignored and baffled as the system kept changing.  They describe their experience dealing with the shifting sands of their revered living document in the following words.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish (sic) brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

It was because of this failed effort to deal with a system that has no solid structure, a system that can change at the will of a simple majority that the Framers were determined to set our new nation on the solid rock of a written constitution.  What did the Founders and Framers have to say?

George Washington said, “The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution, which at any time exists, ‘till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. … If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

Thomas Jefferson said, “Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. … If it is, then we have no Constitution.”

James Madison said, “Can it be of less consequence that the meaning of a Constitution should be fixed and known, than a meaning of a law should be so?”

This is what we were founded upon and this is the philosophical underpinning for the originalist view of the constitution as championed by the late Supreme Court Justice Antonin Scalia.

What do the leading lights of the living document side of the argument have to say?

Woodrow Wilson said, “Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop.  All that progressives ask or desire is permission—in an era when ‘development,’ ‘evolution,’ is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.”

FDR said, “The United States Constitution has proved itself the most marvelously elastic compilation of rules of government ever written.”

Supreme Court Justice Felix Frankfurter said, “The words of the Constitution … are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual Justice free, if indeed they do not compel him, to gather meaning not from reading the Constitution but from reading life.”

Supreme Court Justice Thurgood Marshall said, “I cannot accept this invitation [to celebrate the bicentennial of the Constitution], for I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention … To the contrary, the government they devised was defective from the start.”

Supreme Court Justice Antonin Scalia summed up the end result of more than a century of Progressive constitutional stretching.  “If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.”

Or to put it another way the Progressive’s living document has gone a long way to changing the Constitution from something carved in stone to a mirage written in the sand.  So why do we have a written constitution?  In my opinion we need a written constitution so that the government cannot change the social contract with the wave of its hand or the passage of thousand page bills no one even reads.

So why do we have a written constitution?

To keep demagogues and tyrants from arbitrarily changing the rules by which we live.  If you think this has worked see my book The Constitution Failed.  As a professor of Political Science and as the Director of one of the largest Political Science Departments at any university I have long advocated that the study of the Constitution should be moved from Political Science to History because it has become merely an historical document and now has little to do with how our country is administered by the political class.

Does it still matter?  Only if the citizens of this nation have the fortitude to rise up and demand that it matters.

Keep the faith.  Keep the peace.  We shall overcome.

Dr. Owens teaches History, Political Science, and Religion.  He is the Historian of the Future @ http://drrobertowens.com © 2016 Contact Dr. Owens drrobertowens@hotmail.com  Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens / Edited by Dr. Rosalie Owens

 

 

Why Have a Bill of Rights?

In any free society that area of life which is left to the sole discretion of the individual includes all actions that are not specifically forbidden by a general law.

In our nation when it came time for the ratification of the Constitution it would have been impossible to gain the votes needed if the backers of a centralized national government had not promised that the first thing they did was pass a Bill of Rights.  It had been asserted by the proponents of liberty that to enumerate such a list would eventually become a statement that only those rights enumerated were protected.  However, it was generally believed certain rights were so important and so open to suppression that fundamental guarantees were needed.  In consequence the Constitution was lengthened to include the first ten amendments as the opening business of Congress.

Over time the argument that these enumerated rights would come to be seen as the only ones protected has certainly come to pass, which is another of the assertions of the Anti-Federalists that have stood the test of time.  However, it has also been shown that without these constitutional protections these enumerated rights would have long ago been relegated to the ash heap of History.

Even with the protection of the Bill of Rights there has been a steady chipping away at the rights our forefathers thought were so important.  A Supreme Court that has abrogated onto itself the power to nullify the will of the people as expressed in legislation and to invent rights that are nowhere enumerated debates whether or not “shall not be infringed” really means it is legal to restrict.

In our age of seemingly endless technological change we must admit that any enumerated list of rights cannot be complete.  What about surveillance?  Does our right to privacy which has been asserted to allow tens of millions of abortions extend to our growing Orwellian Omni-present surveillance state?  Does the state have a right to follow us with drones?  To kill us without due process?  To collect our emails, our phone calls or keep a ledger of where we go?  Under President Bush people demonstrated because his administration wanted to see the records of library withdrawals.  Under President Obama the populace is silent about the most egregious violations of our rights.

What about the rights of the States?  Do they have the right to be protected from invasion?  Do they have the right to pass and enforce laws that call for local agencies to enforce the federal laws that the central government refuses to enforce?   Ever since the 17th Amendment stripped the States of their representation in Congress our federal system has been debilitated to the point of paralysis.  Today the central government runs roughshod over the States demanding that they stand by helplessly as their citizens are harassed and their sovereignty is evaporated.

If the Bill of Rights is to remain as any type of bulwark against tyranny it must be accepted that they contain a general assumption that government is restrained from infringing upon the traditional rights that we have enjoyed.  If we stand ideally by while our rights are redefined to irrelevance we will one day wake up to find ourselves in a prison camp we once called the United States of America.

We have experienced over the course of the last two hundred years that the Constitution could be no more than a somewhat porous protection from the assumption of total power by a centralized government.  Today we endure levels of control and taxation that make the causes of our own Revolution pale in comparison.  It is hard not to believe that if Washington, Henry, and that generation were with us today they wouldn’t be issuing declarations and raising the alarm, “The totalitarians are coming!  The Totalitarians are coming!!”

The only protection of this creeping corruption of our constitutionally limited government is an informed public.  If the people sleep the tyrants dream.  They dream of ordering society to match whichever version of a utopian pyramid scheme they adopt to fool the people.  It matters little whether they call it communism, fascism, or progressivism a re-education camp is a prison by another name.  It matters little whether we call it censorship or political correctness.  It matters little whether we call it taxes or penalties.  It matters little whether we call it coercion or regulation.

What does matter is whether we are truly free or free only in name.  Can we do what we want or can we merely do what is allowed?

Outside of the bounds of the constitutionally established amendment process the Progressives have used the fiction of a Living Document to make the Constitution a dead letter.  Executive orders, signing statements, court decisions, and the bewildering framework of regulation stretch the power of government while restricting the freedom of the people.

Empires rise and empires fall.  Some fall due to invasion and some due to suicide.  The European Empires committed suicide in two fratricidal World Wars that destroyed their cities and left their people shell-shocked and unwilling to bear the burden of power.

Today we watch while our great republic jettisons the world girdling empire it inherited from the exhausted Europeans.  We stand mute as our leaders abandon the leadership not only of the free world but of the world itself.  Not for the noble cause of reasserting freedom at home but instead because we have spent ourselves into bankruptcy with bread and circuses to amuse the masses while a clique of elites concentrates power.  We have empty suits leading representatives who have gerrymandered their way to perpetual election presiding over an unelected bureaucracy that rules by decree.

Does liberty still ring or has the bell finally cracked beyond repair?  Why do we have a Bill of Rights?  So we can remember who we once were.

Dr. Owens teaches History, Political Science, and Religion. He is the Historian of the Future @ http://drrobertowens.com © 2014 Contact Dr. Owens drrobertowens@hotmail.com Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens / Edited by Dr. Rosalie Owens

 

Republican Outlook 2012 – Part 2 – Resisting Infighting in the Conservative Family

Politics and religion are important and dangerous topics, and they often have an impact on each other. It grates on me to hear a candidate disparaged for his religious beliefs. There is not much that is more un-American than to do so. Religious intolerance within the Christian community threatens the power of Conservatism.

Polls show that 82% of Americans identify themselves “Christian.” This large percentage of believers belong to or attend literally “thousands” (according to adherents.com) of different denominations from the largest, Catholic, to the smallest single-congregation denomination. An outsider might ask, why so many different kinds of Christians? The answer is simple, beginning with the protestant reformation to the current day, believers have compared their church to the writings in the Bible; and often when doing this they discover some discrepancy, so they split off and start a new church that they feel is modeled more on that of the Biblical description of the church Christ organized during his mortal ministry.

Some of these splits have come about due to disagreement over such things as the mode of baptism, the necessity of baptism, the version of the Bible that is used, the way tithes and offerings are collected or administered, predestination vs. free will, the use of products such as alcohol, makeup, or meat, the use of musical instruments, female preachers, and many more such items.

Even with these divisions, the basic doctrine of Christianity remains in these churches. I studied religion in college, and I read a great deal on contemporary religion. I have not found any denomination that does not have certain basic beliefs as part of their doctrine:

  • Jesus of Nazareth was the only begotten Son of God; He lived without sin, gave Himself to pay for the sins of all humans, and is the Savior of the World, the only way back to God
  • The First and Greatest Commandment – Love God with your might, mind, and strength
  • The Second Greatest Commandment -Love your neighbor as yourself
  • The Ten Commandments

These are certainly not the only commonality between Christian denominations, but it is sufficient to illustrate that a Christian who proclaims belief in Christ is a Christian. If I believe that baptism by emersion in a requirement, and you do not, that difference does not give me the right to say you aren’t really a Christian. Whatever else you believe, because you believe in those four items above, nobody can rightly say you are not a Christian.

Religious tolerance means that you give each person the right to worship and serve God in the way they believe is right, whether it matches your belief or not. There is a limit on this tolerance in that the United States Constitution and the body of law resulting from it, including those from state and civil governments, is the only law allowed to deal with mandatory fines, seizure of property, incarceration, physical punishment, or execution for wrong doing. Other than that each church has the right to allow in or remove from membership whomever they wish and to conduct their worship and church business how they choose. And each member has the same right to participate or not.

Each Christian attends the church of their choosing because they believe it is the best church for them, or because they enjoy the fellowship, convenience, or programs. It is not fair to others to say they are not Christian because they don’t see religion in exactly the say way we do. Jesus told His apostles, “For he that is not against us is on our part.” All these churches believe the four things listed above, they are on our part.

As long as they honor the Constitution and obey the laws of the land, a candidate should not be criticized for being a “born again”, Catholic, Episcopal, Mormon, or an unaligned Christian. With the same Constitutional stipulation mentioned in the previous sentence, the same is true for non-Christian religious bodies as well. It speaks well to a person’s character that they respect t and honor their religious beliefs and are kind to others in theirs.

We need to honestly throw away religious bias and select candidates on the strength of their record, education, public service, their stand on issues, and their personal character. In the next of this series, I will exam the three candidates most know for their religious beliefs: Mike Huckabee, Mitt Romney, and Jon Huntsman.

Charles Schulz’ Peanuts and Gun Control

I always liked Charles Schulz, the Peanuts creator. He was a down to earth guy with a lot of talent and good Patriotic American values. He was a WWII veteran. I shared a hero with him in Bill Mauldin the double Pulitzer editorial cartoonist, and creator of Joe and Willie, GI’s that appeared regularly in the Stars and Stripes during the war. In years following the war, Schultz and Mauldin became good friends. Charles Schulz died of cancer in 2000, but his Peanuts cartoons are rerun in newspapers across the country even today and his Animated TV specials are institutions on network television.

If I could talk with Mr. Schulz today I would consider it an honor and would express my gratitude and respect to him, but I would also have a bone to pick with him.

The Peanuts cartoon that ran in the Arizona Republic newspaper today features Charlie Brown and Snoopy talking to an unidentified government official. He says, “Yes, ma’am we got the new dog license, we also got a drivers license, and a fishing license…,” then turning to Snoopy he says, “No she says you don’t need a license for that.” The final panel shows them walking away with Snoopy carrying an assault rifle.

I guess on the surface that might be considered a logical argument for gun registration. However, without even discussing the Constitutional statement that the “the right of the people to keep and bear Arms, shall not be infringed,” the argument is patently illogical.

Registering dogs does not forbid ownership to anyone, its purpose is to insure that rabies and other diseases are not spread; the dog license assure vaccination. The requirement to have a driver’s license does not limit a person’s right to own a car or to drive it on private property, only the right to drive it on public streets or lands. Cars are actually used in the commission of more crimes than guns are, and cars are both registered and licensed. A fishing license is not required to own a fishing reel, a boat, or any other fishing gear, or to fish on private property; it is only required for fishing in public waters.

A gun is no different. You have the right to own a gun without registering it. You may use it on your own private property outside of city limits, you may target shoot on private property or public land that allows recreational shooting and you may have it at home, in your car, or on your person for self-defense. However, if you decide to hunt game on public lands, you must buy a hunting license. So gun ownership and use currently has exactly the same licensing requirements as owning and using fishing equipment.

It is illegal to use a firearm in the commission of a crime. It is illegal for convicted criminals to have a firearm. The fact that gun use by convicted criminals or by anyone for the commission of a crime is illegal does absolutely nothing to reduce gun ownership and use by most criminals – They are planning to break the law, so what difference does it make to them if the law says they can’t?

Gun registration or permitting only affects law abiding citizens, not criminals. Over 200 million guns in private ownership have never been used to commit a crime of any kind. A small percentage of these however have saved the lives of families, have stopped robberies, or have caused criminals to flee.

If you wish to register and license every potential weapon you would have to include such things as knives, axes, shovels, clubs, and rocks. Most shootings of humans are actually by criminals attacking other criminals, included gangs and other criminal organizations, drug users, drug dealers, and run of the mill criminals double-crossing each other. There is proof that gun ownership by non-criminals actually reduces crime.

So If I could talk to Charles Schulz, I would respectfully point out that he is on the wrong bandwagon with this issue.

The bad guys have guns; shouldn't the good guys?

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