Several years ago, I was working on some local political issues with my good friend, Jenny Baker, when she said to me, “You know, I feel like the watchman on the tower who notices that the city is burning and yells FIRE! I expect people to come running with hoses and shovels, but instead they show up with marshmallows and hot dogs.” I think that those of us who are here tonight recognize that what is currently happening in our country is no weenie roast. We love our country and we can see that something has gone terribly wrong.
Our government is just not operating the way it was designed to under the Constitution. Utah Supreme Court Justice, Dallin Oaks, said, “one of the most important fundamentals of the Constitution is the principle of popular sovereignty – meaning the people are the source of government power.” But it doesn’t feel like that to me anymore. Instead, I feel like I am being run over by a giant bureaucracy that is too powerful for me to stop.
That is exactly what the Founding Fathers worked so hard to prevent. They understood how easy it would be to go from being tyrannized by a king to being tyrannized by a new government. In fact, James Madison said, “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.”
It is important to know that we went to war in 1776 over tyranny and despotism, not just taxes. I’m sure that we are all familiar with the quote, “Those who cannot remember the past are condemned to repeat it.” Well, here we are today being tyrannized again by an out of control government.
“Sovereignty in the people,” as Dallin Oaks said, “implies responsibility in the people.” But without a correct understanding of the Supreme Law of the Land – the Constitution – how can we recognize when an unconstitutional law has been passed? How can we defend our rights if we don’t know what they are and where they come from? As Constitutional attorney, Krisanne Hall said, the “Constitution does not defend our liberty. The Constitution cannot write our Congressman. The Constitution can not sit in our Senator’s office demanding accountability. The Constitution can not pick up a sword. Only we can do that.”
How many of you are familiar with James Otis? John Adams thought that the Revolution cost James Otis more than almost any other patriot. James Otis happened to be the Advocate-General in Massachusetts in 1760 when British officials called for a crackdown on smuggling by authorizing writs of assistance. These writs of assistance were general search warrants. They allowed officials to enter and ransack private homes, ships, or buildings that they suspected for any reason might hold smuggled goods. Neither the house nor the goods had to be specifically mentioned in the writs, and they did not have to provide probable cause for suspicion. It was James’s job to enforce the writs. But rather than do that, he not only resigned his position but he represented the Boston merchants who had filed suit claiming that the writs were illegal. James gave a famous 5 hour tirade in court defending colonial rights. He even talked about natural law underlying the rights of citizens and argued that these writs, even if they were authorized by Parliament, were null and void.
Even at the time, most English authorities agreed that the writs violated the British Constitution.
A young John Adams was sitting in the audience during the trial and was impressed with James’ passion. He later wrote that Otis was “a flame of fire and then and there the child Independence was born.” Even though it took the court 2 ½ years to rule against James and the merchants, the trial and James’s arguments convinced many of the colonists that the British government had overstepped its bounds.
So where did James Otis get the idea that the colonists had a right to be protected in their homes and businesses against unlawful searches and seizures? Isn’t that something that Madison and the founders came up with when they wrote the 4th Amendment? Well, as it turns out, the ideas in the Declaration of Independence and the Constitution were NOT original to the Founders.
Krisanne Hall said, “We did not invent these documents. We inherited them.”
Remember, they were British colonists, not American colonists. There were no Americans until the War of Independence. Sometimes we forget that it was a civil war. They were British, and under the first Virginia charter granted by King James I 13 years before the Pilgrims ever landed at Plymouth Rock, they were entitled to the same rights as Englishmen in the homeland: rights like trial by a jury of their peers, jury nullification, and protection from unlawful searches and seizures. They also knew about separation of powers, limited government, and rule of law.
These ideas were not new to the Declaration of Independence and the Constitution. Our founders were well aware of the tyrannical kings in their British history. They were also familiar with English Common law and documents that had been developed over 700 years to protect their rights as Englishmen. These documents forced the kings over the years to give up some of their power in order to retain their rule.
So let’s talk about one of these documents: The Magna Carta is a great example. In 1215, King John of Robin Hood fame was on the throne. This was supposed to be a limited monarchy with the king sharing some of his powers with the wealthy nobility. The nobility would carry out the king’s wishes, and the king would allow the nobles to make some local decisions. But King John tried to take all of the power for himself! Now King John is considered one of the worst kings in history. He imprisoned his wife, starved his enemies, killed his nephew, and levied heavy taxes on the people.
When the people couldn’t or wouldn’t pay, he mutilated them, cutting off body parts, and seized their property. The nobles demanded that John obey the law – because remember it was a limited monarchy. Based on Common law and other previous agreements there were a few rules that even the king was supposed to obey.
When John refused, the nobles surrounded London and forced John to negotiate with them. The Magna Carta or Great Charter is the document they came up with. Its legacy is that everyone including leaders must obey the law. It declared certain individual liberties, one of the most famous being the right to a trial by jury. It started out as a list of complaints by the nobles but turned into one of the world’s most influential documents. The Magna Carta, along with the English Bill of Rights, and the Grand Remonstrance were all part of the unwritten English Constitution. And our founders understood them well. They knew the history of tyrannical kings and they knew their rights as Englishmen. This is why the colonists revolted when King George tyrannized them by depriving them of their rights.
In order to understand the Constitution, I think it is important to spend a few minutes talking about the political and religious thinkers who influenced our founders.
For example, the Protestant reformer, John Calvin, had a huge impact not only on the founders but on all of colonial America. Calvin was one of the primary people responsible for the printing of the Geneva Bible. The Geneva Bible was the Bible the Pilgrims brought with them and that America was founded on. What made it so important was that Calvin and other reformers involved in the printing, included their own commentary notes in the margins of the Bible. Some of the notes challenged the divine right of kings. You can imagine that this infuriated King James and he made ownership of the Geneva Bible a felony. He then made his own version of the Bible, which is the King James Bible that so many of us use today.
Calvin’s ideas were very influential to our founders. He taught that because man is not inherently good, he can’t be trusted. Therefore, we need to place limits on his power. He also taught that human law must be in accordance with Biblical law. He taught that government was accountable to a higher power and he promoted the idea of limited government.
Several years ago, there was an interesting study done called the Lutz Hyneman study. The purpose of the study was to find out who had most influenced the founders’ political ideas. So they researched the sources that were quoted most often in the political writings during the time 1760-1805. Baron Charles de Montesquieu was cited most. Montesquieu is credited with the principle of separation of powers – dividing government into 3 branches: the legislative which makes the laws, the executive which enforces or executes the laws, and the judicial branch which applies the laws. Like Calvin, he also taught that man’s laws must conform to God’s laws.
The next most highly quoted source was Sir William Blackstone. Blackstone wrote a book called “Commentaries on the Laws of England.” For many years if someone wanted to become a lawyer, they did not go to law school. They studied on their own or under the direction of another lawyer, but one of the things they would have studied was Blackstone’s Commentaries. He said that the Law of Nature which is the will of God is superior to any human laws and that human law must conform to a higher standard because it is answerable to God. In fact, he said no human laws have any validity if they do not conform to the higher laws of nature (or of God.)
And then the third most influential writer was John Locke. He said that governments are created by men to protect the rights that God gave us. He believed that it is the right of any people to replace their government if the government tramples on their rights. He also said that human laws cannot contradict God’s laws or nature’s laws.
These ideas should be familiar to us because they are the ideas that gave birth to the Declaration of Independence and the Constitution.
In understanding the Declaration and the Constitution, it is important to know that they work together. The Declaration is similar to the mission statement or charter of our country. It describes the principles upon which our government was founded. The Constitution does not state principles. It is a practical document. It is like the by laws or rules.
So let’s start with the principles in the Declaration.
The first part of the Declaration is diplomatic. It is really written for foreign nations. The founders knew that in order for them to survive they would need to have the respect and support of other countries so they needed to make it known that they had just cause for the separation from England. The Declaration begins, “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” Notice how the Laws of Nature and of Nature’s God are mentioned just like we talked about earlier with Calvin, Blackstone, Montesquieu, and Locke.
Second, they state that it is self evident that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Happiness back then did not mean hedonism as we so often think of it today. It meant that people had the right to use their time, talents, and resources to pursue the interests which would best benefit themselves and their families. It meant an equality of opportunity in the marketplace.
Third, it is stated that because government derives its power from the consent of the governed, (which is us) we have the right to choose how our government functions. Jefferson went on to say if “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.”
Fourth, it is explained that they have suffered a long string of abuses under King George and when that happens to a people it is not only their right but their duty “to throw off such government.”
The 5th part is the Bulk of the document. It lists the 25 grievances they had against King George III that they believed justified their separation from Great Britain. These offenses included being denied a trial by jury, taxes imposed on them without their consent, transporting them across the ocean to be tried for pretended offenses, and 21 other misdeeds.
Sixth comes the official Declaration, “We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”
You are probably wondering why I was emphasizing the word, STATES. States means sovereign country like Germany, France, or England. As sovereign states each one had power to levy war, make alliances, establish commerce, and as it says, “to do all other Acts and Things which Independent States (or countries) may of right do.” Most people today don’t realize that. Our states were independent, sovereign countries entering into a contract (the Constitution) and it was the Constitution that created the federal government. The federal government was not supposed to be what it is today. The Founders worked very hard to limit the power of the federal government and reserve most of the power to the states. But now, the creature (the federal government) has exceeded the creator (the states). The federal government has grown until it is intruding into every aspect of our lives.
Madison said, “The powers delegated by the proposed Constitution to the federal government are few and defined.” Unfortunately, that is not at all how our government operates today.
As Ronald Reagan said in his first inauguration speech, “All of us need to be reminded that the states created the federal government and not the other way around.” Judge Andrew Napolitano said he would add, “and the powers the states gave to the federal government they can take back.”
7 Last, was the Pledge “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
When we think about the signers pledging their lives, I don’t know if we all realize the real penalty for high treason in 18th century England. I think most of us assume it was death by hanging when in fact without going into the gory details it was much more than that. In fact, if they had been caught they would have been lucky to just be hung. In addition to that, their families would be punished.
The principles that we talked about in the Declaration of Independence are tremendously important because they are the principles upon which the Constitution is based. Again, the Declaration of Independence can be thought of as our country’s mission statement, and the Constitution is the governing document – like our bylaws. The Constitution is based on the principles and beliefs stated in the Declaration of Independence. Sadly, most Americans today are completely unfamiliar with our Constitution.
But we don’t need to be a historian, economist, or political scientist to understand the Constitution. It was written to be understood. As Paul Skousen taught, the Constitution is neatly organized like a book. The main chapters are called Articles and there are just 7 of them. The first three articles set up the 3 branches of government: the legislative, executive, and judicial, with checks and balances on each other’s powers.
The introduction to the Constitution is called the Preamble, and those of us who grew up in the 70’s can probably recite the preamble to the Constitution from listening to schoolhouse rock in between Saturday morning cartoons. The preamble explains why the framers wrote the Constitution. It lists 6 guiding principles that the Constitution is intended to support. It begins by saying,
- “We the people of the United States, in order to form a more perfect union…” This just means in order to join the states together.
- Establish justice – which means setting up a fair legal system
- Ensure domestic tranquility – which means peace between the states
- Provide for the common defense – Defending our country
- Promote the general welfare – the general welfare is different than specific welfare. General welfare benefits us all – (it doesn’t mean the kind of cradle to grave welfare programs that we have in our country today where the government takes from one citizen to give to another. These kinds of programs erode moral character. Instead, general welfare meant creating a fair economic playing field where citizens could use their skills and talents to pursue their own goals, professions, educations, etc.)
- And last, to secure the blessings of liberty for themselves and us in the future.
Those are the 6 guiding principles of the Constitution.
Now we are getting into the meat of the Constitution. The first Article in the Constitution talks about the legislature. The legislature is made up of two parts: the House of Representatives and the Senate. Together they are called Congress. The Constitution gives ALL power to make laws to Congress.
Unfortunately, Congress has been delegating that authority by passing laws that create agencies like the Department of Education and the Environmental Protection Agency and then these agencies create rules and regulations that are never voted on and never passed by Congress, but they have the force of law. The Constitution does not give Congress the power to delegate. Can you imagine if Congress had to vote on every rule on the books, how many fewer regulations we would have? The House of Representatives has the power to initiate revenue bills (we call that the power of the purse). The idea was that decisions involving our money should be made by those who are closest to the people. The House also has the power to impeach federal officials. Many people, including myself for many years, don’t understand that impeachment does not mean removal from office. In fact, we’ve had 2 presidents impeached. Both Andrew Johnson and Bill Clinton were impeached. Impeached simply means that they had charges brought against them by the House of Representatives. However, both of these presidents were acquitted by the Senate because after the House impeaches, the Senate acts as the jury in the trial.
The 2nd Article describes the Executive Branch which is the President. The Executive Branch is responsible for enforcing the laws that Congress passes. The President is the commander in chief of the military and has the power with the advice and consent of the senate to make treaties and nominate and appoint ambassadors, consuls and judges of the supreme court (as I am sure we have all been paying close attention to recently). As part of the checks and balances, the President can veto legislation passed by Congress. Congress can then override the President’s veto with a vote of ⅔ in each chamber. Historically, Congress has overridden less than 10% of presidential vetoes.
The 3rd Article talks about the Judicial Branch which is made up of the Supreme Court and all of the lower federal courts. There is one chief judge and 8 associate judges AND I would like to point out that they are NOT appointed for life. The Constitution says that they, “shall hold their offices during good behavior.” We often think that they are appointed for life because there has only been one judge impeached, and he was acquitted by the Senate. But it is important to remember that they can be removed. Over time, the Supreme Court has assumed the role of being the final word on the Constitution. However, the President and Congress take an oath to uphold the Constitution as well. Unfortunately, both the legislative and executive branches have willingly handed their duty to uphold the constitution over to the judicial branch.
An example of this is the Campaign Reform Act. When Congress passed it, members of Congress said that parts of the Act were likely unconstitutional. Then when President Bush signed it, he said that he had “reservations about the constitutionality” but that he would let the courts decide the issue. Where was the government malfunction here? Neither branch did their job. They just handed more authority over to the Supreme Court.
Article 4 talks about the states. And this is especially pertinent to us considering the way the government is operating today. The founders never intended that the central government be more powerful than the states. Instead, the federal government had, as I mentioned earlier, “few and defined” powers. Before 1914, senators were not directly elected by the people like they are today. They were appointed by the state legislatures. The idea was that the states would send the senators to Washington to represent the states. If a senator didn’t vote in the best interest of the state, he could be recalled.
But the 17th amendment changed that, and in my opinion, one of the best things we could do to restore the power of the states and limit the federal government’s power is to repeal the 17th amendment. Think about it. How easy is it for you to contact your state legislator? I talk to mine regularly and I have all of the So. Utah delegation’s emails, and phone #’s. When I text, email, or phone them I get a response. As a matter of fact, I have been known to chase them down at basketball games and sit next to them at luncheons. But what about our US senators? I can’t remember the last time I chatted with Orin. In fact, if I call, I get an intern or maybe a legislative assistant who will hopefully pass on my concerns to the Senator and maybe send me a pre written email regarding the issue. I know this because I worked for a congressman in Washington DC. almost 30 years ago. Your chances of talking to the senator in person are nil. In fact, if the Congressman was in the office and a constituent dropped by, he ducked into his office, and we were instructed to tell them he was busy.
However, when the senators were elected by the state legislatures, they were directly accountable to the states. It gave the states representation in the federal government. This is why the federal government has been able to take over things that were originally the responsibility of the states. In fact, legislative election of senators was one of the few decisions reached by the Constitutional Convention that everyone agreed on, and none of the state ratification conventions objected to it either. The Constitution created a system of checks and balances not only at the federal level but between federal, state, and local governments as well.
This system is based on balancing self-interest, and states are interested in maintaining as much power as possible. So naturally they want to prevent federal intrusion into their state. But the 17th Amendment deprives them of the ability to do that. We need to give states back their original power so that they can stop federal overreach.
Our federal government has grown so powerful that we now have a huge federal bureaucracy staffed by unelected and unaccountable bureaucrats. Some would say that this has become our 4th branch of government.
Article 5 describes the two ways of amending the Constitution. The first way is by obtaining a ⅔ vote by both houses of Congress. It is not an easy or efficient process. It was made to be cumbersome in order to prevent reckless changes. The second way to amend the Constitution is to hold a Constitutional Convention. This is often referred to as a Con Con and there are state legislators and others pushing for one right now. In my opinion this is a dangerous way to go about making changes to the Constitution. It can happen if ⅔ of the states call for a Con Con. But remember, that is how we ended up with the Constitution, and the delegates were really only supposed to revise the Articles of Confederation. Instead, they came up with a whole new Constitution. So my concern is that we could have a similar situation today.
Article 6 just makes it clear that there is one supreme standard of law, and that is the Constitution.
Article 7 simply states that it takes 9 of the 13 states to ratify the Constitution.
Once the Constitution was written, the idea of a bill of rights became a real sticking point for ratification. There was an understandable distrust of government and some of the delegates thought that if there was not a list of rights included in the Constitution, the government might pick and choose what it considered legitimate rights. Other delegates thought it was unnecessary because the new federal government would have only strictly enumerated powers. They also worried that it would be impossible to list all of the rights and they didn’t want the government to assume that if the rights are not listed then maybe they don’t exist. But soon the Federalists, especially Madison, realized that ratification may not happen without a bill of rights. So he got to work. 189 rights were suggested and submitted to Congress but Madison boiled them down to 17. Congress approved 12, and the states ratified 10. And those 10 amendments are what we call the Bill of Rights.
Let’s discuss for a minute just what a natural right is. Natural rights are those same rights given to every human being that cannot be taken away. If you are a religious person, then you believe that they were given to you by God. If you do not believe in God, then you believe that they are yours as a result of your humanity – meaning just because you are human. Regardless, a natural right does not impose any kind of obligation on someone else and does not undermine the rights of anyone else. So things like government paid for education and healthcare are not natural rights, Remember, the government does not give anything to one person that it did not take from another.
The 1st Amendment contains five rights. Most people can remember the first 3: Freedom of religion, press, and speech. The other two are, freedom of assembly. (Remember, there were times in British history when people could not gather together in their own homes because the king assumed that they were conspiring to overthrow him.) And lastly, the right to petition the government for a redress of grievances (basically, the right to complain to the government). I could probably gold medal in this.
The 2nd Amendment is of course the right to bear arms. And as Judge Napolitano said, “The second amendment does not exist to protect your right to shoot deer. It exists to protect your right to shoot tyrants when they take over the government.” The 2nd Amendment also contains the right to a well regulated militia, which means a state militia. Our Utah State Militia is made up of the National Guard and the unorganized militia. Most of us here tonight probably fall into the category of unorganized militia which is any able bodied citizen who is between the ages of 18 and 66. Of course there is a list of exemptions including police officers, firefighters, physicians, and a few others.
The 3rd Amendment protects us from having to house soldiers in our homes at our own expense the way King George required the colonists.
The 4th Amendment is the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. That is basically a right to privacy. How is that working out for us? Think about the NSA, the IRS, etc
The 5th Amendment mandates due process. That means that the government cannot punish us just because it wants to. We have all heard the phrase, “ I plead the 5th.” Well, that simply means that the accused can refuse to answer questions that may make them appear guilty. The 5th Amendment also forbids double jeopardy which is when a person is tried twice for the same crime.
The 6th Amendment guarantees a citizen a speedy trial, a fair jury, an attorney if they want one, and the chance to confront the witnesses who are accusing them.
The 7th Amendment ensures a trial by jury.
The 8th Amendment protects us from excessive bail, excessive fines, and cruel and unusual punishments.
9th amendment says, that rights can not be denied just because they are not each and every one specified in the Constitution. Remember, we have rights as a result of our humanity. They are not granted by government. Government exists to protect them not to grant them.
10th amendment is a very important one to remember because it basically says that any power that is not given to the federal government is given to the people or the states. Again as Madison said, “Those [powers] which are to remain in the State governments are numerous and indefinite.” The Founders understood that the greatest threat to liberty is an all-powerful central government, where the few direct the many.
Unfortunately, the ink was not even dry on the Constitution before power began shifting away from the states toward the federal government. The Supreme Court began legislating from the bench by interpreting the Constitution to mean whatever they wanted. And Congress started giving away its legislative authority to agencies and bureaucracies controlled by the President. Consider the EPA, the Department of Education, the Department of Agriculture, Commerce, Defense, Labor, Transportation, Health and Human Services, and the list goes on and on. These agencies create regulations that impact us and we have little to no recourse because the people in charge are not elected. They are appointed and hired. This is not the way our Founding Fathers intended for us to be governed.
How did this happen? Well, the main culprits are the progressives – starting with Presidents like Theodore Roosevelt, Woodrow Wilson and FDR. Teddy greatly enlarged the powers of the executive. He argued that limited government was outdated with the rise of industrial capitalism. He insisted on greater government control over the economy by prosecuting leaders of industry like J.P. Morgan and increasing government regulation.
Woodrow Wilson thought that the Constitution didn’t fit the demands of a new time. It needed to evolve and react to new situations. He believed that the way the government was set up, it just wasn’t efficient enough. He wanted to get rid of separation of powers. It made it too difficult to get anything done. He had been a professor and university president, and he loved academia. He thought that government should be run by people who had been trained at the university level in government administration.
Then came FDR’s New Deal – his domestic economic program was supposedly intended to bring relief from the Great Depression. Within the first 100 days of his administration, he tremendously expanded the size and power of the federal government by creating many new government agencies. These are just a few: the Works Progress Administration, the Civilian Conservation Corp, the National Recovery Administration, the Securities and Exchange Commission, the Agricultural Adjustment Administration, and my favorite The Federal Reserve.
The progressives believed that the government should be able to do whatever it wanted as long as it was for the good of the people. I am sure you can recognize the problem with that line of thinking.
Contrast that again with what Madison had to say, “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 former will be exercised principally on external objects, as war, peace negotiation and foreign commerce. … The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.” It is clear that our government today is not functioning the way it was designed to under the Constitution.
As you can see the limited government that our founders envisioned has been obliterated by an out of control federal government. It is up to us to preserve our Constitution and our republic. In order to do that, we must study the principles of the Constitution and teach them to our children. Then we must hold our government officials accountable to those principles by becoming involved in civic affairs. It is our duty not only to vote and become involved in local precinct meetings but we need to become informed and educate others.
I would like to conclude with a quote by President Reagan who said, “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”
Sources:
- The Declaration of Independence
- The United States Constitution
- How to Read the Constitution and the Declaration of Independence by Paul Skousen
- Liberty and Tyranny by Mark Levin
- Lectures and writings of Krisanne Hall
- Lectures of Judge Andrew Napolitano
- Lectures of Richard Church
- The Federalist Papers
