Open discussion on the Founding. (2/9/2014)

I am a huge Hockey fan, and one of the discussion boards for my team, at times the conversation goes sideways and needs a more appropriate venue for further discussion, so Hockey can be the main topic where it should be. This post is made to be a more appropriate setting to continue this and other founding discussions.

Quick Thoughts: Do not desire power you do not want your opponents to use against you

These past couple weeks, Washington has been rocked by numerous reports of potential improper use of power by the Government at the IRS targeting certain political ideologies, Department of Justice seizing records of the Press, the admittance that drone strikes have killed US Citizens without due process or were accidental and accusations of false reports to the People and Congress in regards to these and others events.

I am working on a couple of these and how they relate to the Constitution so I will not go into detail about them at this time, rather I do want to make a quick point about one other troubling aspect to me. It is those who are defending the accusations themselves as being "legitimate", not denying that they occurred. In other words it is "okay" for Government to target certain political positions it does not agree with or government sees as a threat, it is "okay" for government to seize records with out the required due process the press is safeguarded under by the First and Fourth Amendments because of "National Security". It is "okay" for Government to deceive or mislead the people to protect information, regardless if the revealing of that information has any actual effect in policy or safety.

My question to those who contend it IS "okay" for Government to do this, would you feel confortable to have the opposing side in power and use those same powers tactics or methods against those it opposes, being you? For me this is the simplest and most effective way to determine what the limit of ANY government power should be. Would you feel at ease, or under duress if those who oppose you had that power to use against you? If you cannot answer yes, then it is a power NO GOVERNMENT must ever have. If the power is available to Government, those in power may not use it today against the people or its adversaries, but history has proven someday someone will come along who will. The goal for a free people should be, to NEVER let government have that power in the first place, and when it tries to seize it, NOT defend those actions, but even if you oppose who it is being used against, speak out against those who wield it. Because if you do not, one day you will be on the other side of the table and by not speaking when it first happened, you have already condoned not only the power, but that acts to come at your expense.

What is the Constitution? What does it do and what does it not do?

The United States Constitution is a basic framework of government, primarily at the national level but also with requirements or prohibitions at the state level.

The initial premise of the Constitution is that of defining and limiting Federal Government power, that is to say if an act does not fall within the limits of the Constitution, the Federal Government does not possess that power. This is reaffirmed by the Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment in clear and conscience terms layout the Constitution is a limiting document, the power not specifically granted to it are reserved to the two powers who created the Constitution, the States (who created it in the Convention of 1787) and the People (who ratified it causing it to go into effect on March 4, 1789).

 

The focus here will be on the Constitution as it was in 1788 chiefly. Amendments will be cited when it has changed aspects of the text or provisions of the Constitution and how it has changed those provisions, but the Amendments themselves are not a focus topic in this article.

A More Powerful Government (Quick Thoughts)

This is an article I plan on diving much more deeply into in the future. In many of my discussions I have with people about the Founding Principles of the Constitution, one of the most common things I hear is something along these lines,

“The Founders wanted a strong central government because the Article of Confederation proved a weak one can’t work”.

With the exception of one word in this context, I happen to fully agree with the statement, the word “strong” instead of '”stronger”. No matter how you word it or state it, it is this concept and the difference between Strong and Stronger in this context that makes the World’s difference in the discussion. To often in my opinion, many who favor a very strong Federal Authority are the ones who use the word strong and use it with the Founder’s in this context to justify their position of a more absolute Federal power.

The United States is not a Democracy

Often we hear about the United States being a “Democracy”, or let “Democracy” decide. We see it in many places; the United States Navy Sailors Creed has the term Democracy

“…to protect freedom and democracy around the world.”

But the United States is not a “True Democracy”, rather we are a democratically elected Republic, and the difference between that and democracy is significant.

Democracy vs a Republic

Democracy

Majority vote prevails. The majority of a vote on a given subject decides the course of law, generally without any predefined limits on what law can be, since the majority of the people decide what law is.

Republic

A system where members are chosen for the purpose of representing a larger body (in the US the People or the States), generally in part or in whole chosen directly by the people. That body or bodies are usually constrained by some sort of contract (Constitution) with the people normally directly voting for at least one part of the body.

United States vs Jones (Unwarranted GPS tracking of an individual)

I touched on this decision in Quick Thoughts as a victory for the Fourth Amendment (Fourth Amendment Victory (Quick Thoughts) in regards to unwarranted GPS tracking of an individual. Now I want to dive a little bit deeper into it, in regards to the Founding influences and how they were applied to this case. You can read the Supreme Court of the United States (SCOTUS) opinion and additional concurrence opinions here¹ (Cornell University Law School).

The Supreme Court's opinion was written by Justice Scalia and is the main one of focus here. Additional concurrence opinions were also written by Justices Sotomayor and Alito who had differing reasons based on precedent however, reaching the same conclusion.

Synopsis

The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to respondent Jones’s wife. The warrant authorized installation in the District of Columbia and within 10 days, but agents installed the device on the 11th day and in Maryland. The Government than tracked the vehicle’s movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking conspiracy charges. The District Court suppressed the GPS data obtained while the vehicle was parked at Jones’s residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment. (sic from SCOTUS ruling)

Fourth Amendment Victory (Quick Thoughts)

Today the Supreme Court of the United States (SCOTUS) rules law enforcement agencies may not track your privately owned vehicle with a GPS device, unless authorized by a warrant. The decision was unanimous and correct. For starters the Fourth Amendment was designed as a method to prevent the government from intruding into the private matters or property of individuals or groups unless proper cause could be justified BEFORE hand in a warrant, not the other way around.

To often the Bill of Rights has been viewed as the limit of individual or group rights, defining the limit up to what government can do, but it was not designed to do this. The Bill of Rights was designed to specifically prohibit certain actions to further limit what government may do. The Federal Government was bound by certain limits in the Constitution, and a strong argument against the Bill of Rights was that it may end up expanding Government powers, by claiming what was not specifically protected, such as this case. (see Bill of Rights or limitations).

Even though the exact specification of tracking citizens is not specifically prohibited by name in the Fourth Amendment, the concept of it being prohibited is. A person or group CAN NOT be secure in their persons, houses, papers, and effects if every move that person or possession is tracked. You vehicle is your effect, and you are guaranteed to be secure in it from unwarranted searches or seizures. By monitoring its every move in such a manner it is to make the effect and person unsecure from the government, effectively a search of the effect and person.

Not only is government prohibited from warrantless searches and seizures specifically in the Fourth Amendment, but this also has Ninth Amendment implications as well, that to be free from government monitoring is one of the "other rights retained by the people". This Amendment was designed to prevent such a move by the government that usurps the intention and motivation of the Bill of Rights, to protect every right retained by all people not just those specifically cited in the previous eight Amendments.

More than just a Declaration of Independence

July 4 is a day of celebration in the United States, it is the anniversary of the Declaration of Independence, even though the actual vote for Independence took place two days before (July 2, 1776: The United States decides to Declare Independence). It is noted as the day the United States declared it will decide its own course, make its own rules, govern itself and would no longer hold or honor any allegiances to Britain or its crown. This was done with a magnificent piece of work written primarily by Thomas Jefferson with the assistance of  Benjamin Franklin, John Adams, Robert Livingston and Roger Sherman (June 11, 1776 the Committee of Five), the Declaration of Independence.

Besides declaring, “That these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES” dissolving the bonds between the United States and Great Britain, the Declaration states so much more, on the nature or power, the role of government and rights of the people. These declared principles in regards to each, will have a direct influence on the structure and power in the Articles of Confederation and Constitution (Declaration of Independence influence on the Constitution).

Which Document did it come from?

Where did the phrase come from? » online testing

Quick Thoughts: The Bill of Rights does not enumerate the People’s Rights!

 

On May 17, 2011 a Federal District Court Judge made a ruling that caught my interest, not the subject itself completely (though the subject still did catch my interest) but rather the rationale in the decision made. This decision was not based directly off of the Constitution itself for what it says, but rather off of previous courts decisions alone, using stare decisis. As I discuss in an article of stare decisis, stare decisis is prudent provided it used properly and in the correct manner and this is not a situation in which it was, by the Judges own admission in his opinion.

The background of this case concerns concealed weapons, the actual subject of the case is of actual little matter to my opinion here, rather it is his jurisprudence that I will examine. Yolo County CA banned concealed weapons, and a challenge was brought against the County citing 2nd Amendment protections.

The plaintiffs (contending the ban was unconstitutional) argued the same manner of interpretation should be applied to the Second Amendment as is the First Amendment (it is to protect maximum freedom of the subject). The Judges response to this was,

The Court sees no reason to analogize rights under the Second Amendment to those under the First, as plenty of case authority exists to provide a clear framework of analysis to facial challenges, without poaching precedent from another Amendment’s framework.

A short quiz to see how you interpret the Constitution.

Not a long quiz, but should give a basic idea on you see the Constitution!

Are you an Originalist? » Quiz Maker

Declaration of Independence influence on the Constitution

I have heard more than a few people say the Declaration of Independence has no impact on the Constitution. While from an absolute government can do and government can’t do aspect this is not false, it does undermine the fact the Declaration of Independence does in fact have significant relevance to the Constitution.

 

The Declaration of Independence was more than just the title proclaims in declaring Independence from the United Kingdom it was an indictment against tyrannical rule and what the role of a government should be. The Declaration went beyond merely stating the Colonies would no longer have any ties with Britain, the Founders also stated what the rights of the people are, and that government operates at the beckon of the people, not the other way around.

 

So how does this relate to the Constitution? The comparisons between the Declaration of Independence and the Constitution, go beyond the most famous words of the Declaration that most of us learn in grade school, “We hold these truths to be self evident…”. It is almost a cause and effect between the two, with the Declaration being the cause or stating the purpose of government and the Constitution being the effect of those beliefs in creating a government. Though the Constitution does have many influences, the direct impact of what the Declaration states is clearly evident.

The first place we will look is the second paragraph of the Declaration.

Convention of 1787: June 4, 1787 Day 8; One Executive, Council of Revision and the Veto

 

After a Sunday of, following debate on the Executive on June 2, 1787, the Convention resumes its debates with the Executive on June 4, 1787. June 2, resolved very little on the Executive, and little of what was agreed to will actually remain through the final draft, mainly the ability to impeach the President, while a seven year term would eventually be changed.

Singular or Plural Executive Decided

Charles Pinckney (South Carolina) resumes discussion on whether the Executive should be singular or plural, by moving,

“Shall the Blank for the Number of the Executive be filled with a single person”.

This motion is seconded by James Wilson (Pennsylvania) and noted it was opposed by Edmund Randolph (Virginia), since no arguments to this point in the convention had convinced him a singular was best. James Wilson observed the objections were not leveled so much at the measure itself, as much as at its unpopularity. On examination he could see no evidence of the apathy of the people, on the contrary was persuaded it did not exist. All know a single magistrate is not a king. One fact had great weight; ALL Thirteen States had a single magistrate. The idea of three heads has taken place in none, and Wilson saw tranquility in one head which would not be obnoxious to the people, they were used to the single executive. Three may divide, two may not agree resulting in Anarchy and confusion¹, and he foresaw uncontrolled and continued and violent animosities, which would interrupt the Administration, but diffuse their poison through the other branches of Government, through the States and the People. Roger Sherman (Connecticut) felt the matter is of great importance and ought be well considered be determined. He noted a single magistrate in each state. He also noted each State Magistrate had a council and favored one.

Constitution Convention Notes: June 4, 1787

This is the Notes of the Convention of 1787 (The Federal Convention) for June 4, 1787. The notes included are those that specifically address this day, and do not include notes of others who may address the topics of the day. You can download and read those, and the entire collection of Notes recorded at the Constitution Convention in the Links and Downloads section. These contain the entire series of Notes on the Convention from James Madison, Rufus Kings, James McHenry, William Pierce, William Patterson, Alexander Hamilton and Robert Yates, in addition with the Journal from the Convention can be read by following this link, Federal Journal of the Convention of 1787.

Convention of 1787: June 1, 1787 Day 6; The Executive

Since Edmund Randolph proposed the Virginia Plan and Charles Pinckney proposed his Pinckney Plan, on May 29, 1787,  the Constitution Convention discussions have been on the Legislature alone. Today the Convention will shift its focus to the Executive Branch, the 7th resolution of he Virginia Plan, and as has been already observed with the Legislature, reaching a consensus on most anything will be a difficult process. This will start with, should the Executive Branch consist of a single chief executive, or a plural executive of multiple persons.

James Madison in his notes observes that William Houston of Georgia has arrived and taken his seat in the Convention. Still only Eleven States are represented in the Convention to this point. New Hampshire who will not have delegates arrive for several weeks, and Rhode Island who declined sending any delegates at all, being absent from the Convention.

The Convention resumes in the Committee of the Whole, and takes up the 7th Resolution from the Virginia Plan.

that a national executive be instituted; to be chosen by the national legislature for the term of—; to receive punctually, at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the magistracy existing at the time of increase or diminution; and to be ineligible a second time; and that, besides a general authority to execute the national laws, it ought to enjoy the executive rights vested in Congress by the Confederation.

Convention of 1787: May 31, 1787 Day 5; The People will vote, and selecting the Senate.

With the Convention having decided on a Three Branch System of Government with Supreme power on May 30, 1787, attention was now turned toward the Legislature. The last order of business from the previous day was to postpone a motion by Edmund Randolph (Virginia) on proportional suffrage in the Legislature. The vote was postponed and referred to committee mainly due to the restriction placed upon the State of Delaware Delegation by its Legislature that the equal suffrage of the States shall not be modified (May 25, 1787). The fear being, that passing a resolution of proportional suffrage may cause the Delaware Delegation to leave the Convention entirely.

May 31st opens with a Eleventh State now represented, and taking its seat in the Convention.

• Georgia – William Pierce

At this point now, only  New Hampshire and Rhode Island are not represented in the Convention, and Rhode Island has already decided against sending delegates at all. Also of note is in the Congress Assembled, two delegates from a state must be present for the vote of the State to be tallied, the Convention is willing to move forward with only one delegate to vote for the State they represent.

Convention of 1787: May 30, 1787 Day 4; Three Branches, and Supreme Power

With the Virginia Plan and the Pinckney Plan having been proposed the day before on May 29, 1787, May 30th would mark when real work of the Convention begins. Though two proposals had been submitted the day prior, it would be the Virginia Plan that would end up setting most of the debate for the foreseeable future. The Convention would go into a Committee of the Whole to begin the day, and elected Nathaniel Gorham (Massachusetts)as the Chair. The Committee of the Whole is a committee of the entire Convention with fewer rules, and a smaller quorum,, this allows for open debate and proposing and voting on amendments to proposals,  before the Convention proper votes of the final version of the proposal, and is method of conducting business still seen today in the House of Representatives³.

James Madison (Virginia) notes Roger Sherman of Connecticut takes his seat.

Three Branches of Government, and Confederacy vs. Supreme Power

The 15 propositions proposed by Edmund Randolph the day prior have been referred to the Committee to be taken up. Randolph moved and Gouverneur Morris  (Pennsylvania) seconded, that the first Resolution of the Virginia Plan “Resolved that the Articles of Confederation ought to be so corrected & enlarged, as to accomplish the objects proposed by their institution; namely, common defence, security of liberty & general welfare”, should be postponed to consider the following three proposals.

1. 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, and general welfare.
2. That no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient.
3. That a national Government ought to be established consisting of a supreme Legislative, Executive & Judiciary.

Pinckney Plan, a Draft of a Constitution.

On May 29, 1787 after Edmund Randolph presented the Virginia Plan, Charles Pinckney of South Carolina also presented a draft plan for a Constitution.

For some time the validity of the Pinckney Plan was questioned, since it bore considerable resemblance to the “Committee of Detail Plan. In 1818, John Quincy Adams was preparing the journal of the convention for publication and discovered that the Pinckney plan was missing, he wrote to Pinckney for a copy, and Pinckney sent him what he asserted was either a copy of his original draft or a copy of a draft which differed from the original in no essentials. But as this was found to bear a close resemblance to the draft reported by the committee of detail, Madison and others, who had been members of the convention, as well as historians, treated it as spurious, and for years Pinckney received little credit for his work in the convention. Later historians, however, notably J. Franklin Jameson and Andrew C. McLaughlin, have accredited to him the suggestion of a number of provisions of the constitution as a result of their efforts to reconstruct his original plan chiefly from his speeches, or alleged speeches, and from certain papers of James Wilson, a member of the committee of detail, one of which papers is believed to be an outline of the Pinckney plan.

This is the plan submitted to John Quincy Adams in 1818. James Madison only notes in his notes that a plan from Charles Pinckney was in fact submitted, but the plan itself was not written down .

The Virginia Plan

This includes three parts of the Virginia Plan presented by Edmund Randolph on to the Constitution Convention on May 29, 1787.

The First he address the purpose of Government, than states Five specific issues with the Articles of Confederation, this is then followed by his basic plan of Government. James Madison also had a significant part in the writing of the Virginia Plan. These portions are taken directly as written from James Madison Notes.

Purpose of Government

1. The character of such a government ought to secure, first, against foreign invasion; secondly, against dissensions between members of the Union, or seditions in particular states; thirdly, to procure to the several states various blessings, of which an isolated situation was incapable; fourthly, it should be able to defend itself against encroachment; and, fifthly, to be paramount to the state constitutions.

2. In speaking of the defects of the Confederation, he professed a high respect for its authors, and considered them as having done all that patriots could do, in the then infancy of the science of constitutions and of confederacies; when the inefficiency of requisitions was unknown—no commercial discord had arisen among any states—no rebellion had appeared, as in Massachusetts—foreign debts had not become urgent—the havoc of paper money had not been foreseen—treaties had not been violated; and perhaps nothing better could be obtained, from the jealousy of the states with regard to their sovereignty.

Compare and Contrast; The Articles of Confederation vs. The Constitution

The Articles of Confederation contained many flaws, some serious that if not corrected may have been fatal to the United States (Why the Articles of Confederation Failed). Upon the drafting of a new Constitution in 1787, the drafters took many of these lessons and short comings to heart, and corrected them in the new Constitution. Originally when the first Convention was called for in Annapolis in 1786, the intention was to simply alter and amend the Articles of Confederation. The poor showing in Annapolis in September 1786, with only New York, New Jersey, Pennsylvania, Delaware and Virginia sending representatives, led this convention to only recommend another convention in Ma, 1787. This Convention that was recommended  for May 1787, to take place in Philadelphia, this became the Convention that drafted a new Constitution.

Just as had been tasked for the Annapolis Convention in 1786, the Convention in Philadelphia was similarly tasked by the Congress assembled to make recommendations to Alter and Amend the Articles of Confederation. This convention quickly realized that just altering or amending the Articles of Confederation would not suffice, and a whole new Constitution was written. The Articles of Confederation served as the base idea for the Convention, and many parts or influences of the Articles can be seen in the Constitution, but it is the differences that set the Constitution apart.