When the constitution was written in 1787 it was then submitted to the people, via the Confederation Congress, to be debated and decisions reached whether to adopt or reject their proposed plan for an entirely new system of government. While this mode of ratification was totally illegal, as it violated existing law, it is the fact that it was conventions consisting of the people that adopted the proposed constitution that I would like to spend a moment discussing.
What is meant when someone says ‘We the People?’ I’m not going to get into the legal argument that people and persons are two different things, and in legal terms they have different connotations; that is unimportant for the purpose of my discussion. For the purpose of this discussion I want you to think about who ‘the people’ are.
When you leave your home and go to a ball game, (not that that’s gonna happen anytime soon again), or you go to WalMart, what do you see? You see other people, right. So, are these the same kinds of people who are referred to in the Preamble where it says, “We the People of the United States … do ordain and establish this Constitution…”?
The Preamble itself grants no legal authority, it is merely an opening statement describing the purpose of the document that follows. So when it says that it was We the People who ordained and established this Constitution, it means that a group of people were accomplishing that task. The question is, to whom does the term ‘We the People’ apply to?
That may sound trivial to some, but let me assure you, it is far from trivial. On September 17, 1787 the finalized document we know as the constitution was voted upon, and then signed by 39 of the delegates who had attended the convention that produced it. When you sign a legal document you are accepting the terms found in that document. For instance, if you sign a loan agreement you are agreeing to borrow a certain amount of money, and in return, make payments to the individual, or institution that loaned that money to you.
So, when those 39 delegates signed the constitution on September 17, 1789, the constitution only applied to them; as no one else in this country had yet agreed to the conditions mentioned within it. Now comes the tricky part. These delegates were acting on behalf of their respective State Legislatures; who had sent them to Philadelphia with specific instructions to only propose amendments to the Articles of Confederation; which was the existing constitution at the time.
Therefore, those 39 men who placed their signatures upon that piece of parchment were guilty of, not only violating the trust of those who had sent them to Philadelphia, they were also guilty of violating the law; because Rhode Island was part of the Union, but chose not to send delegates to this convention. This means that the entire Union was not represented; not to mention that 2 of the 3 delegates from New York had left the convention early because they did not agree with what the convention was doing; effectively leaving New York without a voice, or a vote, in the proceedings.
So, how can anyone say that what those 39 men agreed to on that day was representative of ‘the People’? Furthermore, those in attendance during this convention were not truly representative of the broad spectrum of people making up the United States of America. Those who attended this convention were, for the most part, the upper crust of society; what we might call the 1% today. They were lawyers, speculators, bankers, and others we might call, the elite. Nowhere was the common man represented in that convention.
To put that in terms you might understand, let’s say that it was decided another constitutional convention was needed to repair the flaws in our existing constitution. Would you feel like your wants and desires were being represented if men like Joe Biden, Mitch McConnell, Bill Gates, Jeff Bezos, a smattering of Supreme Court and District Court Judges, along with the CEO’s of the companies that make up the military industrial, or pharmaceutical industry were chosen to draft a new constitution?
If that were to happen today do you feel like anything they came up with would be in your best interests; that your thoughts and feelings were being represented? Well that is quite similar to what happened in 1787; men of wealth and prestige were chosen to attend this ‘esteemed’ convention; while the common folk were blissfully unaware that moves were being made that would place them under the thumb of a government with the unlimited power to tax them; (See Article 1, Section 8, Clause 1. There are no limitations upon Congresses taxing power). Not to mention that 126 years later they would pass a constitutional amendment granting Congress access to your income. Oh, in case you weren’t aware, Chief Justice John Marshall of the Supreme Court would later say, “…the power to tax involves the power to destroy…”
At this point in the game the constitution was nothing more than a piece of parchment with words written on it, and the signatures of 39 men; it was binding upon no one else. Before I go any further I feel I must make a slight detour and discuss the questions of who this government was to represent, and by virtue of that, whether it was a federal or a national system of government.
A federal government is one which acts upon political entities, such as was the case under the Articles of Confederation; where the States were the entities represented in the Congress. A national form of government is one in which the power of the central government bypasses the States and applies directly to the people. From a reading of the Preamble, the whole we the people thing, it would seem that this new system of government was a national one; as its power would reach to the lives of the people. If this were truly the case, then why did they include a Senate; where the States would have a say in what laws were to be passed; for that is characteristic of a federal form of government.
Those who drafted the constitution were acting in a federal capacity, as they were agents of the States that had sent them to Philadelphia. However, when they submitted the plan they had written it was to be ratified upon national principles; as the powers of this new government would extend to the people directly. That is why, in the opening days of the Virginia Ratifying Debates, Patrick Henry made such a fuss over the phrasing, ‘We the People.’ He understood what was happening, that we were undergoing a transition from a federal form of government to a consolidated national form; where all power would be centralized in the new system of government. Henry felt that this form, this centralization of power, was destructive to the rights and sovereignty of the States, as well as to the liberty of the people; which he himself felt he was the sentinel over.
During the convention that produced the constitution a suggestion was made that a bill of rights be included in the document they were producing. That motion never gained traction as most of the delegates felt a bill of rights was unnecessary. Yet in correspondence between James Madison and Thomas Jefferson, Jefferson said, “A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inferences.”
So, now that I’ve laid those thoughts before you, let’s continue with the ratification process. Years after the constitution had been ratified James Madison would state before Congress, “…whatever veneration might be entertained for the body of men who formed our constitution, the sense of that body could never be regarded as the oracular guide in … expounding the constitution. As the instrument came from them, it was nothing more than the draught of a plan, a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions.”
Here we have state conventions, supposedly representing the people, who would give life to the constitution; but were they truly representative of the people? As I already explained, those who drafted the constitution certainly weren’t, and neither were the delegates chosen for this monumental occasion; for the most part they were cut from the same clothe as those who drafted the constitution. Nevertheless there was enough opposition to the constitution to force its supporters into promising that if the States would just adopt it, a bill of rights would be added to it later through the amendment process outlined in Article 5.
Now this is where the deceit becomes obvious; at least to me. Here we have an idea, a proposal, a draft of a plan for a system of government that was only given life by the consent of the people; through the various State Ratifying Assemblies. If the people truly are the source of all political power, then do they not have the right to amend a proposed system of government so that it may, “… effect their Safety and Happiness.” (Declaration of Independence)
What happened was that the constitution was ratified and then the people submitted to this new government lists of alterations, modifications, and proposed amendments which they felt would better “… effect their Safety and Happiness.” Now this is where the question of whom this government was established to serve ties in. Since this new system had a Senate, (which was to represent the interests of the individual States), does it not make sense that it also should have some say in proposing alterations to the constitution to best protect their interests? It certainly does to me, unless you want to admit that the constitution was never intended to protect the rights and sovereignty of the States; that it was, as Madison proclaimed, designed to reduce them to subordinate authorities; as stated in a letter to George Washington in April of 1787.
So, if this constitution truly derives its authority from the will and consent of the people, then does it not sound logical that the people could propose whatever amendments they wanted, and that the government would be required to submit ALL these amendments to the various State Legislatures for consideration; as per Article 5? Yet that isn’t what happened.
Did you know that there were about 200 proposed amendments to the constitution which were submitted by the people and the States? So why does the Bill of Rights only contain 10 amendments? One argument is that some of the proposed amendments were duplicates; meaning more than one State had proposed the same amendment; so one version of these particular amendments was eliminated. That, I can understand. What I can’t understand is the fact that if more than one State felt certain changes should be made, or some right protected, why would that proposal NOT be included in the amendments that eventually made their way to the States for consideration.
Who made the decision to NOT include those amendments? After all, if it was the will of the people that these amendments be considered, then who made the decision to send those proposed amendments to the trash heap of history? The short answer is that James Madison went through these proposed amendments and discarded the ones he did not like; the ones which would place tighter restrictions upon the government he had just helped to establish.
Now I want to fast forward about 10 years to something that Thomas Jefferson wrote after President John Adams signed into law the Alien and Sedition Acts. Now this was only a draft of the final document, nonetheless it expresses Jefferson’s thoughts on the matter quite well. In his draft of the Kentucky Resolutions Jefferson writes, “…that the government created by this compact [the Constitution for the United States] was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; . . . . that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority…”
Yet isn’t that what Madison was basically doing, telling the people upon whom the constitution derived its authority, that they cannot alter and amend it in any manner they please? Madison, as a member of Congress at this time, was telling the people and the States that they could not alter or amend the system of government they had consented to, if in so doing it would place limitations upon that government’s power.
I’m not going to go over all the proposed amendments submitted by the people and the States, but there are two of them I feel are important enough to spend some time discussing them. These two proposals show up in most of the proposals sent to Congress by the States; therefore it is safe to assume that the whole of the people felt that they were important changes that needed to be made in the system.
The first of these proposals deals with the fact that it was felt that the restrictions placed upon what powers government could exercise were too loose; meaning there were loopholes open to interpretation; and this proposed amendment sought to close that loophole. For the sake of commonality I will be quoting from the proposals sent by the State of Massachusetts; but if you were to research this subject you would find that these two proposed amendments were common among the proposals sent by ALL the States.
Massachusetts proposed to amend the constitution to include, “…that it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.” That means that if the constitution does not explicitly state a power, then that power does not exist. This was an attempt to carryover Article II of the Articles of Confederation, were it says, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”
This simply would not do for Madison and crew; they couldn’t have the States proposing an amendment that would impose the same restrictions upon the government’s power the Articles of Confederation had done; effectively hamstringing his precious new government. For their plan of government to work it needed implied powers; powers that would be used effectively by Alexander Hamilton in his argument in support of a national bank; as well as in future Supreme Court decisions; so into the trash heap that proposal went.
The next proposal that never saw the light of day was a limitation upon the new government’s ability to impose direct taxes. To quote from the list of proposals suggested by Massachusetts, “That Congress do not lay direct Taxes but when the Monies arising from the Impost and Excise are insufficient for the publick exigencies nor then until Congress shall have first made a requisition upon the States to assess levy and pay their respective proportions of such Requisition agreeably to the Census fixed in the said Constitution; in such way and manner as the Legislature of the States shall think best…”
Again, this simply would not do. Madison and crew wanted a system of government that had the power of unlimited taxation; which Article 1, Section 8, Clause 1 gave it. They could not allow that power to be restricted in any way. In fact, 124 years later that power would be expanded to grant Congress access to our paychecks via the ratification of the 16th Amendment; the ratification of which is still questionable.
Madison, as well as all the other Federalists, (or Nationalists if you want a better description of them), wanted a system with no hindrances imposed upon its legislative and taxation powers; and that’s exactly what those two proposed amendments did, imposed restrictions upon those powers. So into the trash heap they went; effectively telling the people that they could not alter or amend the constitution so as to limit or restrict its power.
The few amendments that did make their way into the Bill of Rights were those that dealt with the natural rights of the people; and even those have been infringed upon over the course of the last 230 years. If the government can tell you that you cannot own this type, or that type of firearm, it is a restriction upon a right government was given no authority to restrict. If you cannot speak your mind, or pray wherever and whenever you want, the First Amendment has all but been erased; not to mention that our petitions for grievances fall upon deaf ears. If government can spy upon you in your home, search your medical, financial, and other records without your consent, or with a rubber stamped FISA warrant, the 4th Amendment is all but dead.
Need I go on…I can if you don’t think I’ve made my point clearly enough?
This government has never been, nor was it ever intended to be, (at least in my opinion), designed to represent the people, or to secure their rights and liberty. Had it been intended with that purpose in mind its founding charter, (the constitution), would have included means by which we the people could punish those who violate their oaths of office to support and defend it. Look for yourself; the constitution contains no such provision; leaving us with nothing but our votes to express our will; and look at how effective that has been in restraining government.
In arguing before the Virginia Ratifying Assembly, Patrick Henry stated this about the proposed constitution, “Here is a revolution as radical as that which separated us from Great Britain. It is radical in this transition; our rights and privileges are endangered, and the sovereignty of the states will be relinquished: And cannot we plainly see that this is actually the case?”
Unfortunately for us, I think they could see that; and it was exactly what they had wanted when they gathered together in Philadelphia in May of 1787. I think Henry himself may have seen it, for he also lamented, “But I am fearful I have lived long enough to become an fellow: Perhaps an invincible attachment to the dearest rights of man, may, in these refined, enlightened days, be deemed old fashioned: If so, I am contented to be so: I say, the time has been when every pore of my heart beat for American liberty, and which, I believe, had a counterpart in the breast of every true American.”
The sad thing is, not only have the people today accepted a system which deprives them of their fundamental rights and liberty, they are so uneducated that they are unable to see the truth when it is presented to them. In short, for those of us in whose breasts the spirit of liberty still lives, we’re screwed. It is my sincere hope that some day, in the not too distant future, those suffering under the yoke of this system of tyranny and oppression we have allowed to rise up, will someday have the courage to shake off the tyranny we have bequeathed to them; and that they don’t make the same stupid mistakes we did. I say this for future generations simply because the current one is too stupid, and too apathetic to care.
And people wonder why I’m such an angry man…