The Constitution
The educational system has failed so utterly in its job of informing our youth about the history and role of the Constitution in our society that I am compelled to outline them here in order to place them in proper context.
In the late colonial period through the time when the Constitution was ratified (1788), the colonists acquired a good deal of experience with several forms of government. They had experience with a distant government much more interested in the wellbeing of the English homeland than that of the colonists. They felt they were being ill-used in the decade or so run-up to 1776, with a series of acts guaranteed to tax them beyond their means and inconvenience them beyond their capacity to bear, and this without them having a chance of representation in parliament, a promise that had been held out to them for years but had never been fulfilled.
Each colony had its own colonial charter, which provided a plan of governance. And, after the declaration of independence, all the colonies set up their own self-selected form of government. These differed from each other with respect to the power of the governor, the number of chambers in their legislatures, etc. And they had experience with the effect of the weak federal government that was formed under the Articles of Confederation. In addition, the learned people of that time familiarized themselves with the works of authors discussing different forms of government. The point is that the populace was experienced with different forms of government and the theories behind them.
It was this experience that the Framers brought to the Constitutional Convention in Philadelphia. There they discussed the principles that they wanted to embody in the founding document of our new, better, federal government. These principles are important because, if the Constitution is The Foundation of our government, the principles are the bedrock upon which The Foundation was built.
The primary principle of any government, regardless of its form, is order. That is the basic responsibility of any functioning government. Although this is obvious, it bears mentioning because one of the things that the Congressional Democrats are threatening is order.
The other principles are freedom, equality, fundamental fairness, and respect.
We wished to be free because we had experience with being ruled by a monarch who had little regard for us. We wanted to be the rulers so that we could see to our own wellbeing. So, it is we who are the source of the government’s power. The government has no power except that which we give it, and we do not give it the power to abuse us.
To realize this principle, the freedom of citizens, the power of the government MUST be limited. So, for instance, we have no monarch who can throw someone in prison at his/her whim, there to languish until he/she sees fit to release them. That is why we have the writ of habeas corpus. That is why we limit the awesome power of the government to search and seize. Etc.
This limitation on the government are manifested in the Constitution in two ways. The power of the government was split among three co-equal branches, so no branch is Supreme over the others, and the government has only the powers granted to it by the people – it could not take new powers for itself.
The three co-equal branches of government each carry out some typical governmental functions necessary to an orderly society, but each is also intended to be a check on the other two.
The legislature is to pass laws, the executive to carry out the laws and defend the nation, and the judiciary to hear cases and interpret laws. In the instances where there are conflicts between the other two branches, the judiciary is to resolve them. Laws are necessary to an ordered society, and the government is responsible for making the laws. But to guard against the possibility of government overreach, safeguards have been put in place to assure that citizens are not subjected to an abusive process in the exercise of the legal system, and to ensure that no citizens had more rights than any other.
The colonists had experience with a system of inequality in Great Britain. The King and the Nobles had immeasurably more rights than ordinary subjects. The colonists did not want anything like this in their new nation, and they made sure to include equality of citizens into the Constitution’s structure. Article 1, Section 9, Clause 3 states:
“No Bill of Attainder or ex post facto Law shall be passed.”
Bills of Attainder were laws passed against the actions of particular individuals. In other words, they were laws that were personal in nature. Ex post facto laws were laws that were passed outlawing actions that had occurred in the past and holding those who had done these acts liable in the present. These types of laws singled particular individuals out for punishment for one reason or another, the cause to be subject only to the whim of the law-making authority. The unfairness of these sorts of legislative acts is so blatant as to not require further discussion.
Article 1, Section 9, Clause 8 states:
“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or Foreign State.”
Obviously, the Framers did not wish to have the feudal system, with its inherent inequities, they had so recently exited reproduced in their new nation. So citizens would be equal before the law. The next order of business would be to ensure that they would have fair treatment from the government.
This is where the principle of fundamental fairness comes in, which includes the notion of due process (fifth amendment). With the colonists feeling so abused by the distant English government, they made sure to so structure their bundle of rights as to be protected from onerous unfair legal process. Among these is the right to freedom from unreasonable search and seizure, the right to counsel, the right to confront one’s accuser, the right to cross-examine witnesses, the right to call witnesses, the right to present evidence, and the right to trial by jury. This is not a complete list, but the Framers’ concern that citizens not be abused by a lack of due process comes through in these.
The principle of respect is vital to the functioning of the government. In our form of government, with the government having only the power granted by the governed, it is essential that the various branches respect each other’s legitimate function, so that no branch acquires more power than any other. The balance is essential. It is the oil that keeps the governmental machinery from squeaking and eventually wearing itself out. This principle is so well understood that ‘comity’, a word meaning ‘courtesy and considerate behavior toward others’ (Google) has come to be used as the standard for what the relationship between the Senate and House of Representatives should be.
The point is to show that our government was deliberately limited in the amount of authority granted to it by We the People, the governed. And that its three co-equal branches are supposed to function like civilized people treat each other in a civilized nation, with fairness and respect. Only in this way can our government provide the order required in any civilized society.
