The Publisher’s Desk – March 1, 2018

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Constitutionally Speaking –

by Joe Tortorici

“They (liberals) thought they were safe, eight years of a man who wanted to rewrite the constitution and fundamentally transform America through deception, deceit and the ignorance and apathy of the brainwashed masses.”

“They cannot envision courts who follow the constitution or any restraint because without these undemocratic totalitarian means that avoid our basic covenant and the will even of the mostly brainwashed populace they cannot transform us into unarmed defenseless slaves over whom they rule and reign.”

I used to know the person who posted the above screed. Bless his heart, he has never been capable of putting together a sentence of more than ten words in his life. This is a cut-and-paste transfer from a conspiracy website. It is one of many questionable sources of information. When I asked for an elaboration, none was forthcoming. I realized what was absent from my friend’s thinking. Amid the tsunami of misinformation regarding the United States Constitution, you must read the document before speaking blithely about its contents or meaning.

This is the first part of a plain-language look at the document defining our government. I promise, no obtuse legal arguments or case law. This will be an aid to understanding the document setting us apart from the rest of the world. It’s a story of men who defined, and were defined by a moment in history.

US Constitution

There are text copies of the Constitution available virtually everywhere on the web. Find one and save it to your desktop. Buy the pamphlet through Amazon. Rummage around in your attic and grab your ancient high school American History text, it’s there. The full list of the twenty-seven (XXVII) Amendments is similarly available and will be worth your while to have at hand. This is not information that needs to be committed to memory, just have these documents around and convenient to view.

Another important set of documents are The Federalist Papers. This is a series of eighty-five essays written by the greatest minds of their generation. James Madison, Alexander Hamilton, and John Jay, our first Chief Justice. They collectively wrote under the pseudonym Publius. The essays are more than lawyerly expositions, they express the fundamental theory of the Constitution. Frankly, they can be a tough read. The language and syntax of the 18th century can wear out any contemporary reader. But again, it will serve you to have them around, not commit them to memory.

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Alexander Hamilton

Reflection and Choice

Hamilton’s Federalist 1 begins:

“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

The framers of the new government had a problem. How were they to generate political legitimacy and stability amid detractors set upon denouncing the process as an elite power-grab or interest-group subterfuge? This sounds familiar. Rather than amend the barely functioning Articles of Confederation, a new path needed to be forged in this document.

“Accident and force” are common traits of humanity. “Reflection and choice” provides the promise of a deliberated, equitable administration. With this in mind, let’s review the preamble to our Constitution.

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

“Reflection and choice” are defined in the document’s opening statement. Three conditions are detailed: an unambiguous statement of sovereignty, a framework of control over the constitutional agenda, and an awareness of the moment in time.

WE THE PEOPLE –

This is an unambiguous statement concerning who is at the center of government. We choose and we are for whom the choices are made. We, the people, are the only sovereign. There is no other collective entity, party, or tribe for whom decisions are made. Keep that in mind as we reflect on the current political divide. In principle, we choose as one people. We choose those persons sent to Congress in order to represent us.

To be clear, one must examine the environment of the era. Women were not allowed to vote. Slaves were not allowed to participate, but were counted as “three-fifths” of a person in a census compromise. The Constitution of 1790 granted the states the power to set voting requirements. Generally, states limited this right to property-owning or tax-paying white males (about 6% of the population). The concept of “we” is a work in progress and something to be considered when contemporary voting rights and conditions are discussed.

We know who “we” are.

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James Madison

JUSTICE, TRANQUILITY, DEFENSE, AND WELFARE –

Face it, collective decision making bodies typically produce outcomes that appease nobody’s actual preferences. Almost anything can happen if there is no template for the functioning of a legislative body. First, consider this excerpt from James Madison in Federalist 40:

Re: the Philadelphia convention – it was “composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism virtue, and wisdom… without any passion, except love for their country.”

This lofty ideal became the bedrock of public acceptance for the new constitution, and rightly so. Aside from the processes to follow, the integrity of the principals was key to the agenda.

A key issue was “the absurdity of twelve states to the perverseness or corruption of a thirteenth.” In short, the solution was forming three distinct, competing branches of government. Each with a procedural braking system for the others. Article I – The Legislative Branch, Article II – The Executive Branch, and Article III – the Judicial Branch, find themselves mentioned in each other’s Article. They are competitive and conditional. The “separation of powers” exists to permeate the deliberative process. Simply put, laws take time; they do so to facilitate ample reflection.

The decisions for justice, general welfare, and the common defense are structured against the tide of “accident and force.”

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John Jay

OURSELVES AND OUR POSTERITY –

What did those men perceive regarding the future? Did they ponder the progress of society and science? They had many immediate problems. They had independence, and crushing debt as a result. There was a danger of resuming short-sighted interest group politics among the colonies. Such a mindset could not produce a legitimate constitution. Yet, decisions had to made in the moment, serving current convictions and a pressing need for order. Under the new constitution, choices would now have far-reaching effect. The declared uncertainty of time, our Posterity, serves the new balance of government. An opportunist that attempts to stack the deck in his favor, sets the table for his opponent in the long-term. Such are codified laws. There is a horizon and it is only realized over time.

“Reflection and choice” is a rare and often unappreciated principle. We, the people, “secure the Blessing of Liberty to ourselves and our Posterity.” The Preamble sets forth the basics, everything else, every article and amendment, serves the purposes written in that brief paragraph.

Next time we will consider “Big Government.”

– Publius

 

 

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