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Wednesday, May 25, 2011

The Real Constitution: Preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, 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.
On this day 223 years ago, the Constitutional Convention was called to order.

Few documents in American history provoke as many debates as our Constitution. (With all due respect to any non-American readers I may have.) As much as some freaks may wish otherwise, not even the Bible is as central to our political discourse as the Constitution. Virtually every single debate we have, from how we should use our military, to how we should take care of the economy, to whether gays should marry, and everything in between - it all comes back to the Constitution in some way. Democrats think it allows a variety of social programs and doesn't allow the Bush administration's interrogation techniques. Republicans think it allows broad latitude in defending our homeland and doesn't protect a woman's right to an abortion. Libertarians think it restricts just about everything; too many politicians think it should allow just about everything.

How are we to interpret this document? Is it a sacrosanct document that should be adhered to in every inch of the Founders' intentions, because if circumstances change they'd want us to pass an amendment? Is it a living document whose interpretation should be allowed to shift to match the present circumstances? Are we betraying the Founders by taking this action or that action, or should we even worry about what the Founders would say, because they intended for us to interpret every line of the Constitution as we see fit? And what the hell did the Founders intend, anyway? Are the Constitution's safeguards working or are our politicians exploiting fatal flaws in it, or do we just need to excersize those safeguards more? Or was the Constitution itself a perversion of the Revolution towards the goals of the elite? All these are questions that have vexed our society since before the ink was dry on the parchment.

In this series, I'll take a look at the real Constitution, trying to uncover just what the Founders really did intend, and how relevant those intentions are to modern society. I will be relying primarily on two sources, so I'll be eliding a big chunk of the scholarship on the matter, and you will likely complain to me and bring a host of other sources to my attention, no matter what side of the political divide you stand on. The first source will be James Madison's original notes on the convention, which open the door on the behind-the-scenes backroom dealing under which the Constitution took shape, and unveil why this or that clause was included in the way that it was. The second source will be "The Federalist Papers", written by Madison, Alexander Hamilton, and John Jay. Though "The Federalist" was written as pro-Constitution propaganda, and so is more intended as a reassurance that the new government wouldn't become the same as the king people just overthrew than an actual expose of the Founders' intentions, it's still worth finding out exactly what people were led to expect from the Constitution, and the theory on which the new government was to operate as far as the people were concerned.

I will move through the Constitution a section at a time. Each post will open with the text of the section in question. That will be followed by my presentation of relevant discussion from Madison's notes or "The Federalist", accompanied by my analysis for what that means for our society. By the end, I hope all sides of the political debate have undergone some sobering realizations. Let's determine what this all-important document really is, once and for all.

The Convention was originally called merely to reform the Articles of Confederation. After some procedural matters, on May 29 Edmund Randolph of Virginia moved that "the Articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution", which were to advance the states' "common defense, the security of their liberties, and their mutual and general welfare". Randolph's plan was a rather radical restructuring of the government, but regardless, the following day, Governeur Morris of Pennsylvania went further by raising three counter-motions, two of which were "that a Union of the States merely federal will not accomplish the objects proposed by the articles of Confederation, namely common defence, security of liberty, & genl. welfare" and "that no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient." He defended the plan on the grounds that "in all Communities there must be one supreme power, and one only" (Madison's words).

Saturday, July 31, 2010

The Real Constitution: Fifth Amendment (Right to a Jury Trial, from Double Jeopardy, from Self-Incrimination, and from Unjust Deprivation)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Thursday, July 29, 2010

The Real Constitution: Fourth Amendment (Freedom from Unreasonable Searches and Seizures)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Tuesday, July 27, 2010

The Real Constitution: Third Amendment (Freedom from Quartering Soldiers)

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Saturday, July 24, 2010

The Real Constitution: Second Amendment (Right to Keep and Bear Arms)

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Does the Second Amendment protect private gun ownership by just about anyone, or does it only protect the existence of "a well regulated Militia"?

Thursday, July 22, 2010

The Real Constitution: First Amendment (Freedom of Religion, Speech, the Press, Assembly, and Petition)

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Wednesday, July 21, 2010

The Real Constitution: Bill of Rights: Prelude

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Yes, the Bill of Rights has its own preamble.

Tuesday, July 20, 2010

The Real Constitution: Article VII (Ratification)

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
The Articles of Confederation had required unanimous consent between all the states for any amendment to be passed. The Constitution attempted to get around that, near as I could tell before checking my sources, by essentially saying "Well, if you don't want to party with us, we'll get started without you!"

Edmund Randolph's Virginia Plan, which still saw itself as mere "amendments" to the Articles of Confederation, would, after being approved by the Congress of the Confederation, be submitted to "an assembly or assemblies of Representatives, recommended by the several Legislatures to be expressly chosen by the people, to consider & decide thereon."

Saturday, July 17, 2010

The Real Constitution: Article VI (Supremacy and Authority of the Constitution)

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
As obvious as it may seem to make the United States Constitution supreme to the state constitutions, Edmund Randolph didn't think the Articles of Confederation were, "ratified, as it was in many of the states."

Randolph also proposed that all three branches of government be asked to take an oath to support the Constitution as part of the Virginia Plan.

Thursday, July 15, 2010

The Real Constitution: Article V (Amendment Process)

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
The Articles of Confederation required any "alteration" to be agreed to by Congress and every single state Legislature. Edmund Randolph proposed as part of the Virginia Plan "that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto."