September 17, 2010
The U.S. Constitution: An Agreement by States
There is a vast misunderstanding of the position and role of the federal government and that of the U.S. Constitution on the part of the vast bulk of the American people and of the individual members of Congress. I understand that generalizing from the notorious comments made by Rep. Pete Stark (D-CA) may not be appropriate, but judging by the speeches of the various members of both Houses of Congress, the legislation passed by the Congress in the past year, and opinions of various judges sitting on various courts (including the Supreme Court), such a generalization is well-supported by the evidence and is in no way "hasty."
In that context, I would like to explain the purpose and intent of the Constitution, as well as the implicit role of the federal government based upon a fair and accurate analysis of the Constitution.
Initially, it must be stated that if there were no Constitution, there would be no United States and, for that matter, no federal government.
The several states at the time of the drafting of the Constitution were each as separate and sovereign as France, Poland, or Germany today. Recognizing that by virtue of their small size and common borders, there were efficiencies to be realized in such areas as Postal Service, post roads, common defense, border control, international relations, and commerce between and among the states, they entered into a partnership -- a business arrangement, if you will -- to provide those services necessary to the common protection and promotion of the betterment (the general welfare) of the states as a group and individually. The partnership agreement is better known by its title: The United States Constitution.
It is worth a moment to consider the meaning and derivation of the term "constitution." Black's Law Dictionary defines the Latin word constituere as "to appoint, constitute, establish, ordain, or undertake. Used principally in ancient powers of attorney, and now supplanted by the English word 'constitute.'" "Constitution" is further defined as follows:
In American Law. The written instrument agreed upon by the people of the Union or of a particular state, as the absolute rule of action and decision for all departments and officers of the government in respect to all the points covered by it, which must control until it shall be changed by the authority which established it, and in opposition to which any act or ordinance of any such department or officer is null and void. Cooley, Const. Lim. 3.
In creating (constituting) the partnership, the states delegated certain limited powers to the entity created (known as the "federal government"). Now, if two or more individuals entered into a partnership agreement for the acquisition and purchase of commercial real estate and further provided for the later sale of the real estate (hopefully at a profit), that would not authorize the partnership to sell the homes of the individuals, or even business property held by members outside of the partnership. The partnership would simply lack the authority to perform such an act, since the act had not been delegated to the partnership in the partnership agreement. Similarly, the states not only delegated only certain powers to the federal government, but they also specifically -- in amendments nine and ten, which were adopted at the time of the ratification -- reserved to the states any and all powers not given to the federal government.
So what is the federal government? Simply a partnership of the several states to perform functions which would be too costly for the aggregate of individual states to provide for themselves. The logistical problems of providing, for example, for the national defense, utilizing the fifty states as a joint command, would render such an undertaking practically impossible. The result would be no defense of the common fifty states.
A perfect example of a lack of power in the federal government would be abortion. A hot-button issue to say the least, abortion is nowhere to be found in any clear and direct reading of the Constitution. Nor can a delegation of the abortion issue be fairly inferred from any language in the Constitution. Abortion is simply not an issue delegated to the federal government, nor for that matter are health care, marriage, Social Security, nor Medicare and Medicaid, to name just a few. The federal government cannot render abortions legal or illegal. The subject is simply not part of its charter. Another such example is the Department of Education. I defy you to read the entirety of the Constitution and find any delegation of authority for federal intrusion into the field of education. It simply does not exist.
It is important for our citizens to know what the Constitution is in order to know what the federal government is. The federal government is not supreme, but rather a creation of the states.
The federal government should be limited in scope and effect by the Constitution, because that is the document by which it was created. It is a truly bizarre notion that the creature of a document has the ability to alter the instrument of its own creation. If such a thing were possible or true, the federal government would have been a Frankenstein's monster created by the Founding Fathers. It is clear from the earliest writings that no such thing was intended.
It is important that the legislators know that the federal government is not supreme, for it is the creation of the states for the benefit of the states.
It is important that the Supreme Court abandon its progressive notion that the Constitution is a "living" document. It is merely (one is hesitant to use that word describing such a noble document) a contract, an operating agreement.
It is important that when our elected representatives take an oath to uphold the Constitution, they understand and know to the very depths of their being what the meaning and place of the Constitution is.
It is important that our elected and appointed representatives know and believe in the sanctity of an oath. Too many now clearly have no notion of the meaning of the oath, giving it no more than passing consideration if, in fact, they consider it at all. This is why the Founding Fathers were men of faith. Although it is not impossible to find agnostics and atheists who take an oath seriously, I submit that it is far more likely to find God-fearing men who will be bound by an oath.
The Constitution is not terribly difficult to read. It is not written in arcane and ancient language. It was written for ordinary citizens to understand. Accordingly, the Constitution should be taught at the earliest possible point in school.
If you and a group of associates formed a business partnership and selected or hired a manager, whether from among your number or an outsider, you would demand and expect that the manager follow the partnership agreement to the letter, would you not? And if he failed to do so, would you not fire him?
Why not do the same with our elected representatives?
A link to the Cornell text of the U.S. Constitution is provided here.