It quickly became apparent that the project is much bigger than a single post. First we will consider the history and political environment in the Colonies that lead up to the Revolutionary War and the establishment of our Constitution. Then we will examine how the Constitution was constructed; the "clauses", the Enumerated Powers, and the compromises that led to the Bill of Rights, etc. Next we will look at what has happened and try to make sense of the mess. Finally, we will examine ways to get a handle on the situation. Obviously, it will not be possible to return our society to the strict construction of the Constitution. However, it is certainly possible to roll back the federal usurpation of our freedoms. We can reel in further government intrusion into those aspects of American life and freedom where the federal government has no business inserting itself.
Let's begin with a historical perspective of life and society in the American Colonies in the late eighteenth century.
The Declaration of Independence established the Colonies intent to separate from the tyranny of the British Empire. The Declaration is a glorious indictment of the taxes, oppression and other injuries to the freedom and liberties of the Colonies by King George III. The Colonies wanted a degree of autonomy that the King was unwilling to allow. King George considered himself King. In his mind it was treasonous for those trouble making colonists to even consider themselves capable of self-government! Also, the American Colonies were a marvelous source of taxes for the Crown and there was no way he was going to give that up! Many of the colonists, probably a majority, considered themselves British and loved their association with the Crown and the British Empire. Thomas Jefferson, primary author of the Declaration, stated in 1775,“... there is not in the British empire a man who more cordially loves a union with Great Britain than I do." Even though the colonists loved their British heritage, they had learned to love freedom and independence more. Jefferson worded it this way, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain, unalienable Rights that among these are Life, Liberty and the pursuit of Happiness.“ Our founders recognized that the oppressive government from Britain was not compatible with the “[Right to] Life, Liberty and the pursuit of Happiness."
The body of The Declaration enumerates the Colonies grievances against the Crown. I could not improve on it. Here is a web link to the text of The Declaration of Independence at the U.S House of Representatives records archive web site. Click Here
Fighting erupted between the Colonies and the Crown as early as 1770 and became more intense through about 1775. These skirmishes became the Revolutionary War. The Declaration of Independence was signed in July of 1776. The die was cast with its final clause, “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." The Declaration of Independence was High Treason against the Crown and King George. There was no turning back!
After the Colonies declared themselves free and independent they had to establish a government. One of the first efforts at a constitution was the Articles of Confederation. The Articles established a loose confederation of sovereign States for the thirteen Colonies but did not contain many of the powers needed for an actual government. Essentially the Articles established The United States of America as little more than a club! There was no president or chief executive, no real judiciary and no taxing authority. Without taxing authority The United States of America could not pay state or national debts resulting from the war. Still, the Articles gave legitimacy to the new nation in the eyes of the rest of the world.
After the war the founders had to face the fact that while the Articles had been sufficient to get the nascent country through the War of Independence, they were woefully inadequate to govern a real and diverse country. The attitude of the citizenry toward a centralized government was at minimum, very skeptical and at maximum, openly hostile! They had just fought a long and bloody war to rid themselves of the tyranny of a powerful ruler and were in no mood to establish a tyrannical regime of their very own in their new nation. The members of Congress recognized serious weaknesses in the Articles of Confederation and there was general agreement, both in the Congress and in the citizenry, that a central government was necessary. However, there was major disagreement as to how strong the government should be and into what areas of American life that government should be allowed to intrude.
Over the past two hundred plus years words have changed meaning. In the United States today we refer to a “state” as a political and geographic sub-unit of our nation. Thus Missouri is a state, New York is a state, California is a state, Hawaii is a state, as are all the rest of the “states” in The United States of America. In the rest of the world the word state refers to a sovereign nation. Thus, Italy is a State, Japan is a State, Russia is a State, Bolivia is a State. Political and geographic sub-units in those States are often referred to as provinces or perhaps territories. Citizens of a “State” [note the capital “S”] are fiercely loyal to and proud of their country. The Swiss are very proud to be citizens of Switzerland, the Japanese love their country as do the British, Germans and the Brazilians. Here in the United States of America we are fiercely proud of and loyal to “The United States of America." We correctly view The United States of America as our nation. In the late seventeen hundreds that was not the case because the Colonies were States, not states! [Note the capitalization!] New York was a State, North Carolina was a State, Pennsylvania was a State, the State of Rhode Island and Providence Plantations was a State. They were separate, sovereign nations, just as Germany, France, Japan and Brazil are today. They had their own forms of government, currency, and even State supported and sponsored religions! For example, they levied import duty on products from other colonies. New Jersey might tax tomatoes or tobacco from North Carolina. North Carolina might levy an import tax on beef from Georgia or grain from New Jersey. Citizens of Virginia were fiercely loyal to Virginia, as were the citizens of Massachusetts to their State, and the South Carolinian’s to theirs. The feelings toward their State was similar to Thomas Jefferson's love for Great Britain. At the outbreak of the Civil War in 1860, Abraham Lincoln offered Robert E. Lee command of all the Union Army. Lee turned it down because it would have required him to take up arms against his beloved State of Virginia!
The Founding Fathers wanted to form a “union” of these sovereign nations but recognized that forming such a union would require the States to give up some of their sovereignty to the central government or union. In other words their capital “S” would become a lower case “s” in the word state.
Essentially there were two schools of thought about how to form that central government. The Federalists supported the establishment of a Constitution defining a central government that managed the currency, dealt with foreign nations by treaty, had taxing authority, a judiciary and established a Congress as the legislative body and a President as chief executive who was charged with administering the laws passed by the Congress. The Anti-Federalists, as they came to be known, generally opposed a stronger central government and considered the Articles of Confederation sufficient but perhaps needing a little tweaking. The Anti-Federalists knew that some sort of union was necessary but they worried about the liberties and freedoms of the citizens being protected and the central government usurping the sovereignty of the states. (The Anti-Federalists hated the title but it stuck to them anyway.)
This schism was a major problem in crafting the new Constitution; how to provide the strength the union needed and protect the Right to Life, Liberty, and the pursuit of Happiness. The writing of our Constitution was a tumultuous process. Every phrase and in some cases almost every word in a phrase was the subject of fiery debate. Ending slavery, preserving state sovereignty, election procedures, preserving the rights of citizens and many other issues were all contentious. Many compromises were worked out and the final draft of the new Constitution was sent to the states for ratification in 1787.
Even the ratification process was not peaceful. Many Anti-Federalists felt that the rights of the people were still not sufficiently protected and used the ratification process to drive home that sentiment. The Massachusetts legislature voted for final ratification with a rider attached. That rider was a version of the first ten amendments, The Bill of Rights. The Massachusetts vote for ratification was declared invalid because it was conditional. Within a few months four more states ratified the Constitution but with their own version of the Bill of Rights provisionally attached. It was clear that the ratification would fail if the Bill of Rights was not officially added. A Bill of Rights that was acceptable to all the state legislatures was written and the Constitution was ratified in 1788 and went into full force in March, 1789.
After the ratification of the Constitution, the states still considered themselves sovereign states but protected by the umbrella of the union, The United States of America. They had ceded certain rights, normally held by a State, such as controlling their own currency, forming alliances and treaties with other nations of the world, submitting to a legislative body other than their own (The Congress of the United States), subjecting their own courts to a Supreme Court of the United States and agreeing to have the entire union managed by a President. The Constitution was carefully crafted to dramatically restrict the reach of the federal government into the sovereignty of the states and the personal freedoms of the citizens.
The Constitution was considered something of a joke by other nations of the world because the central government received its power and authority from the consent of the people. Never before in the entire history of the world was a government the servant of the people. It was a silly sounding idea to establish a government that could be completely turned upside down every two years by an election of the House of Representatives. If the citizens didn't approve of what was coming out of Washington they could change it just a few months hence. Governments around the world could not wrap their brains around the idea of ratification. A government does not get its authority from the people! Governments were the authority in the minds of all the governments of the day. What actually happened was shocking. The power of liberty of a free people was unleashed on the world. It wasn't long before emerging nations everywhere were using our Constitution as the blueprint for their own new governments.
With this historical perspective in place we will next examine clauses in the Constitution and discuss abuses of those clauses. We will also consider judicial activism by the federal courts. The Founding Fathers did the best they could to establish a small, non-intrusive national government. They failed, but that failure was inevitable.
And finally, we will examine what can be done to reign in our out of control government and reestablish the liberties guaranteed by the Constitution.
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