There are many people now so frustrated with the the political machinations of certain political and bureaucratic leaders, that they will tell you, “The Constitution is dead,” or “The Constitution is meaningless because it protects nothing.”
I would submit that, first, I understand their frustration. Second, I also submit that they do not have a grasp on what the scope and span of control of the Constitution actually entails, and how finite the power its permissions to the federal government are.
Thirdly, I submit the reason the Constitution is being trampled rough-shod by many entities in the government at both state and Federal levels, are because, ‘We the People’ do not hold those Oath breakers responsible for their actions. Remember, each elected official takes an Oath, usually with their hand on the Bible, to, “support and defend” the Constitution against, “all enemies, foreign and domestic.”
As with a small child who is told they will be punished if they repeat a certain behavior, if the parent doesn’t follow through with the discipline, there’s no reason for the child to have a behavior change, and the result will be the child will disobey more while becoming more brazen in its actions. Sound familiar? We haven’t disciplined the runaway behavior of the federal and state governments, and now they, at will, violate their limitations set in, “The Supreme Law of the Land,” which is the US Constitution. State governors simply say, “I’m ruling this state in an emergency,” and the People give tacit approval by not calling that governor to task by mass refusal to obey “executive orders” which are only policy guidelines.
I think this is mainly because both state and federal officials always imply the use of force or unreasonable penalty if the citizen chooses to say, “No!”
Mothers are currently being arrested for taking their children to a park in some states. Talk is being bandied about programs that would require an internal, “Health Passport.” To enforce this, check points will be required along major and secondary routes of travel. We might as well get used to what the Nazi’s did in WWII at checkpoints and randomly to citizens: “Ihre Papiere, Bitte!” (Your Papers, Please!)
The first step in initiating a course correction of our government (both state and federal) is to understand the US Constitution, from which all State constitutions gain their construction and authority within each state.
The following article from the Epoch Times provides a great foundational explanation as to how and why various permissions and restrictions are located where they are, and what it means when something is included or excluded in the Constitution.
The document was written by very well educated citizens, and the understanding of the English language, as well as historical common law, was essential to understanding the document.
It may be helpful to have your copy of the Constitution near by as you read the piece so you may see exactly what the author is relating.
Enjoy. Emphasis added.
Civics 101: How to Understand the Constitution
Many people characterize the U.S. Constitution as vague or filled with broad generalities. Others identify it as the source of our basic rights. It is none of those things.
Key to understanding the Constitution is to know that it’s a very well-drafted, fairly precise document granting fiduciary powers, and that it follows 18th century customs for such documents. It was designed to put into practice the broad principles of the Declaration of Independence, to the extent politically feasible.
Much of the Constitution is made up of lists of powers granted by the people to persons and groups. Other components are analogous to terms you might find in complex 18th century documents creating fiduciary relationships—statutes conferring authority, instruments creating trusts or agency relationships, and charters erecting corporations.
The first thing most people notice when they pick up the Constitution is its majestic preamble. It explains why “We the People” do “ordain and establish this Constitution.” Preambles were common in 18th century legal instruments. Preambles did not have the force of law. They were for background information only. Preambles remain common in legal documents today. We often call them “Whereas clauses.”
Any power-granting document must explain who is receiving authority and the conditions under which they may exercise it. Hence, the Constitution outlines the structure of the new federal government: Congress, the president, and the courts.
A power-granting document also limits authority. Limits come in three forms: First, those receiving power receive only the power the document lists. If I authorize my broker to sell stock, it follows that I am not authorizing him or her to sell my house. Second, a document may flatly prohibit certain actions, and put conditions on others. The same agreement that authorizes my stock broker to sell stock may prohibit him or her from selling below a certain price. Third, the law of fiduciary (trust) relationships imposes additional restrictions on anyone exercising power on behalf of another.
The Constitution contains many specific limits. For example, it bans ex post facto laws and taxes on exports, even when they might seem warranted. The Constitution bans restrictions on free speech, freedom of religion, and the right to keep and bear arms. Some of these limits are designed to ensure good and responsive government. Others are included to further justice; still others to protect natural rights.
During the 18th century, a complex power-granting document might include terms telling the reader how to interpret it. Such terms are called rules of construction. Rules of construction don’t change the document’s meaning. They are guides to understanding. For example, the Necessary and Proper Clause tells us to read Congress’s enumerated powers to include lesser authority of the kind lawyers call “incidental.” Other rules of construction include the Supremacy Clause and the Ninth and Tenth Amendments.
Power-granting documents sometimes alter pre-existing arrangements to make the overall system work better. If I give my broker authority to sell stock on certain terms, I might have to revoke authority I have given to others. The Constitution similarly adjusts some pre-existing relationships. It requires each state to have a “republican Form of Government.” It requires states to respect the official proceedings of other states. It requires them to honor certain “Privileges and Immunities” of Americans who live in other states. And so forth.
The core of the document consists of the Constitution’s listed (enumerated) powers. Some people with superficial knowledge of the Constitution claim all the enumerated powers are in the congressional list in Article I, Section 8. This is wrong. Other congressional powers are scattered throughout the document. In addition, Article II lists enumerated powers for the president, Article III for the courts, and Article V those exercised in the amendment process.
The Constitution doesn’t always use obvious language to confer authority. Some grants are latent in other kinds of phrasing. When the Constitution obligates the United States to pay pre-existing debts or guarantee to each state a republican form of government, it thereby grants authority to the U.S. government to do those things. When the Constitution obligates the president to enforce the laws, it thereby gives him the ability to do so.
The powers granted by the Constitution are extensive. But as stated earlier, they are also limited. If the Constitution doesn’t grant an enumerated power to an officer or agency, then the officer or agency doesn’t have it. I have found that many people find this difficult to grasp. But the fact is that the Constitution does not authorize the federal government to be a national health agency, a school board, or a police department.
Here’s an important, but widely overlooked, feature: The document doesn’t grant power only to federal officials. It also confers power on persons and entities who are not part of the U.S. government at all.
Thus, the Constitution entrusts states with regulating congressional elections and choosing presidential electors. It empowers those electors to select the president and vice president. It authorizes governors to call elections to fill congressional vacancies and, in some cases, to fill those vacancies temporarily. It prescribes roles in the amendment process for state legislatures, state conventions, and a federal proposing convention. All of these entities and persons receive authority in such matters from the Constitution.
Moreover, when individuals serve on federal juries or vote in federal elections, they are not exercising natural rights. They are executing powers given to them by the Constitution. Of course, those powers often are crucial for protecting natural rights.
The courts say when people exercise authority by virtue of the Constitution, they are performing federal functions.
Knowing that the Constitution is basically an 18th century document granting fiduciary powers does not minimize its significance or the inspiration of those who wrote it. But it’s a very good first step toward a real understanding of the document.
Rob Natelson is senior fellow in constitutional jurisprudence at the Independence Institute and a former constitutional law professor and historian. He is the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015).
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.