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A BUSINESS DOCUMENT IS COMPLETED
A BUSINESS DOCUMENT IS COMPLETED
"THIS" CONSTITUTION, SIGNED AT
PHILADELPHIA, 1787
PHILADELPHIA, 1787
The Constitutional Convention met in 1787.
It was nearly fifteen years after the real bloodshed of the Revolution had begun. It was some half century after the real concept of American liberty had crystallized, and the practical application of the British constitution had begun to break down, preparing the way for a separate American Constitution.
The American people were exercising independent rights and liberties long before the delegates assembled. What the gentlemen of the Convention wanted to do, and did, was definitely to put on paper a mechanical frame, form, or set-up of government endowed with certain large powers. They set up the legislative, executive, and judicial branches of government, prescribed terms of office, made subsidiary provisions of various kinds, prohibited ex post facto laws, mentioned liberty in the preamble, provided that no man should be deprived of a jury trial and the writ of habeas corpus by the federal government, added a few other clauses, and called it a day.
The delegates, quite naturally, met not to protect the liberties of the people, but to protect property rights—to protect their own liberties.
Alexander Hamilton said it was not necessary to provide for the liberties of the common people since they had been universally accepted and agreed to. With James Madison he said the enumeration of a few liberties would probably be interpreted as abrogating those inherited liberties not mentioned. These opinions were offered toward the close of the Consitutional Convention and were printed in the newspapers. But the debates reveal that little was said about broad democratic liberties. In fact, Madison's Debates of the Convention show that many of the delegates feared and distrusted the democratic process.
When the people realized there was no Bill of Rights in the new Constitution, they sent up a gigantic roar of protest all over the country. "Shays' Rebellion," led by a patriot captain of the Revolution, had caused widespread fear. George Washington was in a sweat over it. The people in general had been "acting up" under their newly won independence of England.
The people began to see that the new Constitution had been written for property by men of property. Some of them discovered that among its promoters were the London merchants who wanted to collect their debts and get back their trade; other supporters had been either real or suspected Tories during the Revolution.
The conservative promoters of the new Constitution began to fear public indignation would defeat it. Their accomplishment, rather than being "an act of revolution," as Corwin calls it, was an act of counter-revolution. And now this minority had to put their new Constitution over, and make it effective. What should they do?
Promise something!
So they liberally promised a Bill of Rights. Let the people talk, and write! Property interests were protected, there was to be a strong central government with an army, and therefore no more Shays' rebellions. Sure, let them talk. So four years after the signing of the Constitution (1787), a Bill of Rights was adopted (1791), which we shall talk about in the next chapter.
Ever since the Constitution was adopted, the powers-that-be have been bent upon establishing far and wide the notion that there is but one American constitution—the Constitution. They have done a good job. A very large proportion of the people today believe that it is our only constitution. Either they do not know or they forget the whole history of our constitutionalism which has been built up through the centuries. Besides, as we have seen, the Constitution of 1787 was the second written constitution, or frame of government.
Had it been called the Great Compact of America, the Magna Carta, the American Ordinance, or some similar name, the rigidity, uniqueness, soleness, of The Constitution might not have become so deeply implanted in our thinking. But from the very beginning, the insiders, the lawyers, the judges, and the property interests, backed by all conservative groups, built it up as a symbol of our whole constitution and at the same time developed it through the contract clauses and property-saving provisions as a rigid instrument for their own uses, as had been originally intended.
We should notice that nowhere in the Constitution is it referred to as "The Constitution." It is always referred to as "this Constitution," meaning, of course, this particular frame or set-up of government. Certainly there was no implication that the accumulated rights and liberties of the centuries were thereby wiped out, or that the people were to be deprived of a fair stake in the land and its resources.
I am not here attempting to tell the whole story. I am mentioning only some facts which are generally overlooked.
Not only have the conservatives made The Constitution a symbol, they have attempted to convince the people that the Supreme Court is the single guardian of their constitutional liberties. Various plans of government submitted at the Constitutional Convention called for "supreme legislative, executive, and judicial branches." For instance, the plan offered by Alexander Hamilton proposes (read slowly): "The Supreme Legislative Power, . . ." then next, "The supreme Executive authority," and last, "The supreme Judicial authority." [Note that Supreme is capitalized in The Legislative Power only. Note also the the word Power is used with Legislative; the word Authority with Executive and Judicial.]
The word supreme meant simply the national, or highest of its kind. It does not now and never did indicate supremacy over another branch.
But when the Constitution was finally drafted, Congress was used instead of legislature, and therefore supreme was not necessary to designate it; President (suggested by the President in Congress assembled provided for in the Articles) was used instead of Governor, or Executive, and of course the supreme was used, but only to designate it as the high, or national court.
The Constitution has supreme Court throughout; supreme is nowhere capitalized. You can ask ten of your friends to capitalize supreme court as it is capitalized in the Constitution (try your lawyer, too), and nine of them will capitalize both—Supreme Court. Even if you tell them one of the words should not be capitalized, they will write it out with a large S and a small c.
Although this point may not be of very great importance, it nevertheless reveals that the name of the high court is frequently taken to mean that the judicial is supreme over the other branches of government, and even the will of the people of the United States.
Of course, everyone knows that the Supreme Court exercises the power to declare acts of Congress unconstitutional, although no such power is granted in the Constitution. This I will discuss fully in later chapters, but it is well to remember that no such power was given in the written Constitution; whatever power exists is an unwritten power.
If there are unwritten powers for the judges, there ought to be unwritten powers for the people. Therefore:
No set of men ever wrote the constitution of a living government.
In spite of all this, no one can deny that the framers of The Constitution did an excellent job. It is still a great Constitution, a great framework of government.
By setting up the three branches of government, they ended the uncertainty, the looseness, and set up a government with limited powers and with definite duties. That one branch or the other has transcended its limitations or has usurped powers is no reflection of the Constitution.
I have already analyzed, in the first chapter, the Preamble. The Preamble in itself is a good job. It is short. Included in the Preamble, you remember, is a statement of the purpose of government—General Welfare. But it is important to know that the general welfare is also a specific power and duty of government, as you will see in the General Welfare Clause of Article I, Section 8, first paragraph:
And in the last paragraph of the same Section there is an enabling clause:
Our form of government provided in the Constitution, of which the Bill of Rights is a part, is sufficient if the people exercise their rights and duties. Under it, a decent economic system is possible; indeed, the American people are satisfied as to form, but they also want the substance of a living government.
Although the Bill of Rights is merely a part of our Constitution, let us look at it alone.
It was nearly fifteen years after the real bloodshed of the Revolution had begun. It was some half century after the real concept of American liberty had crystallized, and the practical application of the British constitution had begun to break down, preparing the way for a separate American Constitution.
The American people were exercising independent rights and liberties long before the delegates assembled. What the gentlemen of the Convention wanted to do, and did, was definitely to put on paper a mechanical frame, form, or set-up of government endowed with certain large powers. They set up the legislative, executive, and judicial branches of government, prescribed terms of office, made subsidiary provisions of various kinds, prohibited ex post facto laws, mentioned liberty in the preamble, provided that no man should be deprived of a jury trial and the writ of habeas corpus by the federal government, added a few other clauses, and called it a day.
The delegates, quite naturally, met not to protect the liberties of the people, but to protect property rights—to protect their own liberties.
Alexander Hamilton said it was not necessary to provide for the liberties of the common people since they had been universally accepted and agreed to. With James Madison he said the enumeration of a few liberties would probably be interpreted as abrogating those inherited liberties not mentioned. These opinions were offered toward the close of the Consitutional Convention and were printed in the newspapers. But the debates reveal that little was said about broad democratic liberties. In fact, Madison's Debates of the Convention show that many of the delegates feared and distrusted the democratic process.
When the people realized there was no Bill of Rights in the new Constitution, they sent up a gigantic roar of protest all over the country. "Shays' Rebellion," led by a patriot captain of the Revolution, had caused widespread fear. George Washington was in a sweat over it. The people in general had been "acting up" under their newly won independence of England.
The people began to see that the new Constitution had been written for property by men of property. Some of them discovered that among its promoters were the London merchants who wanted to collect their debts and get back their trade; other supporters had been either real or suspected Tories during the Revolution.
The conservative promoters of the new Constitution began to fear public indignation would defeat it. Their accomplishment, rather than being "an act of revolution," as Corwin calls it, was an act of counter-revolution. And now this minority had to put their new Constitution over, and make it effective. What should they do?
Promise something!
So they liberally promised a Bill of Rights. Let the people talk, and write! Property interests were protected, there was to be a strong central government with an army, and therefore no more Shays' rebellions. Sure, let them talk. So four years after the signing of the Constitution (1787), a Bill of Rights was adopted (1791), which we shall talk about in the next chapter.
Ever since the Constitution was adopted, the powers-that-be have been bent upon establishing far and wide the notion that there is but one American constitution—the Constitution. They have done a good job. A very large proportion of the people today believe that it is our only constitution. Either they do not know or they forget the whole history of our constitutionalism which has been built up through the centuries. Besides, as we have seen, the Constitution of 1787 was the second written constitution, or frame of government.
Had it been called the Great Compact of America, the Magna Carta, the American Ordinance, or some similar name, the rigidity, uniqueness, soleness, of The Constitution might not have become so deeply implanted in our thinking. But from the very beginning, the insiders, the lawyers, the judges, and the property interests, backed by all conservative groups, built it up as a symbol of our whole constitution and at the same time developed it through the contract clauses and property-saving provisions as a rigid instrument for their own uses, as had been originally intended.
We should notice that nowhere in the Constitution is it referred to as "The Constitution." It is always referred to as "this Constitution," meaning, of course, this particular frame or set-up of government. Certainly there was no implication that the accumulated rights and liberties of the centuries were thereby wiped out, or that the people were to be deprived of a fair stake in the land and its resources.
I am not here attempting to tell the whole story. I am mentioning only some facts which are generally overlooked.
Not only have the conservatives made The Constitution a symbol, they have attempted to convince the people that the Supreme Court is the single guardian of their constitutional liberties. Various plans of government submitted at the Constitutional Convention called for "supreme legislative, executive, and judicial branches." For instance, the plan offered by Alexander Hamilton proposes (read slowly): "The Supreme Legislative Power, . . ." then next, "The supreme Executive authority," and last, "The supreme Judicial authority." [Note that Supreme is capitalized in The Legislative Power only. Note also the the word Power is used with Legislative; the word Authority with Executive and Judicial.]
The word supreme meant simply the national, or highest of its kind. It does not now and never did indicate supremacy over another branch.
But when the Constitution was finally drafted, Congress was used instead of legislature, and therefore supreme was not necessary to designate it; President (suggested by the President in Congress assembled provided for in the Articles) was used instead of Governor, or Executive, and of course the supreme was used, but only to designate it as the high, or national court.
The Constitution has supreme Court throughout; supreme is nowhere capitalized. You can ask ten of your friends to capitalize supreme court as it is capitalized in the Constitution (try your lawyer, too), and nine of them will capitalize both—Supreme Court. Even if you tell them one of the words should not be capitalized, they will write it out with a large S and a small c.
Although this point may not be of very great importance, it nevertheless reveals that the name of the high court is frequently taken to mean that the judicial is supreme over the other branches of government, and even the will of the people of the United States.
Of course, everyone knows that the Supreme Court exercises the power to declare acts of Congress unconstitutional, although no such power is granted in the Constitution. This I will discuss fully in later chapters, but it is well to remember that no such power was given in the written Constitution; whatever power exists is an unwritten power.
If there are unwritten powers for the judges, there ought to be unwritten powers for the people. Therefore:
The particular constitution adopted at Philadelphia is not the sole constitution of our American liberties. It is not in itself the Living Constitution, but only a part of it.
No set of men ever wrote the constitution of a living government.
In spite of all this, no one can deny that the framers of The Constitution did an excellent job. It is still a great Constitution, a great framework of government.
By setting up the three branches of government, they ended the uncertainty, the looseness, and set up a government with limited powers and with definite duties. That one branch or the other has transcended its limitations or has usurped powers is no reflection of the Constitution.
I have already analyzed, in the first chapter, the Preamble. The Preamble in itself is a good job. It is short. Included in the Preamble, you remember, is a statement of the purpose of government—General Welfare. But it is important to know that the general welfare is also a specific power and duty of government, as you will see in the General Welfare Clause of Article I, Section 8, first paragraph:
Article I, Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States;
And in the last paragraph of the same Section there is an enabling clause:
To make all Laws which shall be necessary and proper for the carrying into execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Our form of government provided in the Constitution, of which the Bill of Rights is a part, is sufficient if the people exercise their rights and duties. Under it, a decent economic system is possible; indeed, the American people are satisfied as to form, but they also want the substance of a living government.
Although the Bill of Rights is merely a part of our Constitution, let us look at it alone.
