America's Owner's Manual

When we buy a car, a blender or a hair dryer we also get an owner’s manual.  But, many of us start using our new device without reading about it — get ourselves into trouble, and fall back on the last alternative in computer programming. “When all else fails, RTFM,” translated loosely as “Read the pea-pickin’ manual.”

Today, many Americans for many reasons have concluded that our government is failing, or has already failed.  But how many of us have read the Owner’s Manual recently, or have even read it in the last ten years? The Owner’s Manual is, of course, our Constitution.

Let’s get basic and think about who owns the United States of America. It seems like an obvious question, but when you ask it, answer it, and think about the answer, some critical conclusions follow.

We were all taught in the third grade or thereabouts that “the people are in charge in the USA.”  The Declaration of Independence declares that “governments … derive their just powers from the consent of the governed.”  The Manual agrees: In Article IV, Section 4, it says: “The United States shall guarantee to every State in the Union a Republican Form of Government….”

Now, a republican form of government has nothing to do with the Republican Party.  Political parties are not mentioned in the Manual.  In fact, political parties did not exist when the Constitution went into effect in 1789.

The meaning of “Republican Government” goes back to Aristotle. The term simply means government by representatives who are elected by the people.  Most of us today use the shorthand of calling the United States a “democracy” but that is not correct. Pure democracy means direct action by the people. The Owner’s Manual for the United States was written without direct democracy, and to this day there have been no amendments to alter that design.

Choices of what went into the Owner’s Manual, or, for that matter, not into it, since 1787, have all been deliberate.  Later in this series we’ll get into details about such things as the separation of powers, checks and balances, and more.
For the moment, let’s look at an issue that illustrates the dangers of operating, or trying to understand, American government without reading the Owner’s Manual first. 

In May 2008, the California Supreme Court, by a margin of 4 to 3,  overruled the majority vote of that state’s population and mandated that homosexual marriage be made legal. Four members of the court took unto themselves the power of the legislature to pass laws to change public policy.  The three dissenting judges had the theory of government correct in saying that whatever the merits of the intended policy, it is not the business of judges to create that policy by force.  

The Owner’s Manual is abundantly clear in reserving legislative power to Congress and the state legislatures.
On another issue, many politicians, the press, and pundits have claimed that the Executive branch has no legitimate power to prosecute the War on Terror.  Again, read the Manual.

Article I, Section 8, Clause 10 gives to Congress alone the power “to declare war.”  It takes only a Joint Resolution passed by Congress; the president doesn’t sign that, and cannot veto it. But — once Congress has declared war, then the president’s powers, as commander in chief, kick in.  And, those powers remain in effect until Congress ends the declaration, or ratifies a Treaty of Peace.

All one need do is look at what has happened. Congress did declare war, through a Joint Resolution Authorizing the Use of Military Force, which was folded into the Patriot Act on September 18, 2001.  Those who claim that wasn’t a real Declaration of War should look to the language used by Congress in 1805 to authorize then President Jefferson to attack, and defeat, the Barbary Pirates. The language is virtually identical.

So, here are two important and timely issues which are more easily understood, if we just read the Owner’s Manual.  It probably also wouldn’t hurt for the members of the press to read the Owner’s Manual from time to time.

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In the modern world, we take it for granted that every nation has a parliament or legislature.  Even the most barbarous, tin-pot despot usually rules with a pliant, controlled legislature in place under him.  There was no such assumption of a legislature when the U.S. Constitution was being written in Philadelphia.  That is why the very first Article of the Constitution created the Congress.

Section 1 states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

The framers of the Constitution were well aware that movement toward popular sovereignty in England consisted of Parliament obtaining the “power of the purse,” control over government spending, from the Crown.  The framers went one step further in powers they gave to Congress, giving the power to declare war solely to Congress, but that’s getting ahead of the story.

The central idea of the government came from the Declaration of Independence, that government rests on the “consent of the governed.”  But the heritage was much older than that.  In November, 1620, all 41 adult males who had come over on the Mayflower, signed a compact in which they, “combined ourselves together into a civil Body Politick,… And … to enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the General good of the Colony…”

This was the first written statement of government by popular will on American soil.  Perhaps the best known is the slogan of the American Revolution, “No taxation without representation.”  Certainly the most elegant statement is Abraham Lincoln’s from the Gettysburg Address: “Government of the people, by the people and for the people….”  In short, the first order of business had to be the creation of a Congress.

Our Congress is not divided into two houses with different criteria for election/selection because England has two houses, the Lords and the Commons.  Instead, this odd arrangement, which appears in relatively few nations, is born of the difficulty of reaching agreement on any government, in Philadelphia.

Our original, failed government was the Articles of Confederation.  In it, each state had equal representation.  Each sent three to seven congressmen, but they collectively cast only one vote.  Yet, at that time one state, Virginia, had one-third of all residents.  Virginia and the other large states thought Congress should be based on population.

This fight between the small states that wanted each to have an equal vote, and the large states that wanted a population base, nearly caused the collapse of the Philadelphia Convention.  Delegate Bedford Gunning of Delaware suggested darkly that “other nations may take us by the hand” if the small states did not get their way.  Ultimately, the Grand Compromise was struck that the states would have equal representation in the Senate, and proportional representation in the House.

In designing their new government, the framers were well aware of the successes and failures of the few republics that had been created in history.  They were well aware of direct democracy, in which the citizens voted in person on public issues.  This was the pattern from Athens, which had been followed successfully by hundreds of jurisdictions in New England governed by town meetings.  But given the limits on travel and communications of the day, they deemed direct democracy both wrong and impractical for the United States.

The framers faced two daunting challenges in the design of the Congress.  One was to create a durable balance between the new federal government and the long-existing state governments. The other was to make the federal government itself durable, more durable by far than any other republic.

There are, today, problems with the federal-state balance, and also with our long term survival.  Still, history has entered a verdict of success.  The government of the United States under its Constitution as amended, has survived longer than any other government under any other written constitution in history.

All but six of the world’s nations have written constitutions.  France and Poland were the first two written constitutions after ours.  Hundreds of constitutions have been written, put into place, and failed, since the U.S. Constitution went into effect with ten states participating in the election of President George Washington.  The reasons for the failures of the others and the success of ours, are found in the designs of those documents.

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Most world governments are unitary, meaning all powers are exercised from the center. By definition that means dictatorships, but it also applies to most democracies. Only a few of the world’s modern governments have states, provinces or cantons with powers of their own which the national or federal government cannot claim.

In the United States, the states came first.  They, in turn created the federal government.  This is not just a theoretical subject, of no real world consequence. The separate powers in the hands of the states are one of the reasons why the US Constitution has survived as long as it has.

Because the Constitution required ratification by nine of the thirteen states to go into effect, its design could not directly threaten the state governments.  The Framers sought to assure the states about the new federal government.  James Madison wrote in The Federalist, No. 45:

“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce….  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….”

Just reading or hearing those words and considering this week’s news stories, it’s clear the federal government is far beyond those restraints.

Article I, Section 8, of the Constitution grants these powers to Congress:  Tax, collection of taxes, borrowing money, regulating international and interstate commerce, coining money, establishing post offices, declaring war, supporting the military, and having exclusive control over the capitol city.  These are obviously concerns which need be controlled at the national level.

Section 9 prohibits certain powers to Congress, including the power to pass bills of attainder or ex post facto laws; spending of money without appropriations; and granting of titles of nobility.

Madison argued that both in subjects of law and administrative officials, the states will always be larger and more complex than those of the federal government.  Elsewhere, Madison and his co-authors, John Jay and Alexander Hamilton, argued that the federal government would not be concerned with such subjects as criminal law and domestic relations law (family law, divorce, child custody, etc.).

Especially in laws passed during the Great Depression, the federal government has become active in subjects that formerly belonged to the state governments. The first question is, why does that really matter?  Isn’t a good idea for a new law still a good idea, regardless of what government raises it?

Thomas Jefferson’s philosophy of government was that decisions should be made at the level of government, closest to the people who had to live with that decision.  That meant local government first, state government next, and federal level as the last alternative.  When the federal government seizes powers that don’t belong to it, this principle is violated.

Justice Brandeis wrote in a Supreme Court decision that the states are “legislative laboratories.”  Each reaches its own decisions on any subject.  State laws which prove successful can be copied by other states.  Those which fail serve as a caution to other states not to follow that path.

On the other hand, when the federal government claims the same subject, if a law is passed that doesn’t work, there is no clear comparison to show the failure of the law.  Instead of being in only one or two states, being exposed, and being abandoned, the mistaken law is nationwide and (often) permanent.

The concept of a federal government with limited powers is not entirely dead, like Monty Python’s parrot.  Occasionally the Supreme Court will strike a federal law which clearly invades the province of the states.   (See US v. Lopez, 1995, which concerned the limits of the commerce clause.)  More often, Congress defines its own powers broadly, the President signs the bill, and the Supreme Court, to its discredit, gives its stamp of approval.  (See McConnell v. FEC, 2003, on the First Amendment and campaign finance “reform.”)

The Framers warned that the natural tendency of branches of government to accumulate power would succeed, whenever two branches of government fail to obey their constitutional restraints.  When all three fail, the usurpation of power by the federal government is guaranteed.  “Separation of powers” was intended as a control system against violation of the Constitution.  It is beginning to fail.

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Most Americans don’t know there was another US government, before the Constitution was drafted.  Simplified books and courses leave out the Articles of Confederation, the government of the US for its first eleven years.  There were several fatal defects in the Articles; one was its Presidency.

Concerned with the dangerous powers of the King of England and monarchies generally, the first Framers created a Presidency which was too weak.  The “President of the United States in Congress Assembled” was elected for a one-year term by Congress itself.  That “President” had almost no powers.

When John Hancock was elected to that post, he was too ill to travel from Boston to the capitol in New York during his entire year.  The government functioned as well, as poorly if you prefer, without him.  One of the major defects the Framers sought to solve in writing the Constitution was creation of a “vigorous executive.”

They made the President the Commander in Chief of the military.  They gave him the power to appoint all judges and major officials of the new government, subject to the Senate power to “advise and consent.”  Most important, they gave him power to veto legislation.  It was not the absolute veto possessed by the Royal Governors of the American colonies (and by the governor of one subsequent state).  Instead, Congress retained the right to override the veto by a vote of two-thirds of each House.

The task that most bedeviled the Framers was the term and manner of election of the Chief Executive.  Proposals varied from a single term of seven years, to a limit of two, four-year terms. Because George Washington, the well-respected President of the Constitutional Convention, opposed that limitation, the Framers settled on no term limitation.  Then, George Washington as the first President set an example of retiring after two terms.  Respect alone held that practice in place until the 20th century.  Once President FDR violated that tradition, it was written into the Constitution as an amendment.

The manner of electing the President was an even greater problem.  The Framers had serious doubts about direct democracy, and rejected it in all three branches of government.  For the President, they settled on the indirect process that people in each state would elect respected figures as Presidential Electors.  They, in turn, would exercise their personal judgments in voting for Presidents.

This process started falling apart in just the third election, of John Adams as President.  By then, political parties had developed, despite the warnings against political parties both in Washington’s Farewell Address to the American People, and in James Madison’s Federalist paper, No. 10.  Electors were then pledged to specific candidates.  Today, most Electors are required to vote as pledged when elected, and it is a felony for them to exercise their discretion as originally intended.

The College contains one continuing value.  Because support for a President is measured state by state rather than in bulk, nationally, candidates for President must to some extent focus on most states, rather than merely focus on just the largest cities and ignore most parts of the nation.

Alexander Hamilton argued in the Federalist, No. 68, that the institution of the Electoral College would prevent men who offered only “talents for low intrigue and the little arts of popularity” from becoming President of the United States.  I leave it to the readers to decide how many times the College has allowed people with “talents for low intrigue and the little arts of popularity” to become President.

We have never been quite satisfied with the Electoral College.  More than 10,000 potential amendments to the Constitution have been introduced in Congress over the centuries.  More than 1,000 of those were addressed to the terms and methods of election of Presidents.  None, of course, have ever come close to passage.

Two of the proposals were to choose the President by lot from among the sitting Senators, or sitting Governors.  Combine both of those and most presidential elections, and a great deal of bad television ads, would have been eliminated, including the remaining parts of the 2008 election with three Senators still in the running.

Various proposals have been mounted lately to get around the Electoral College with legislation. But, all are unconstitutional because the Constitution trumps mere law.  The only reform which is remotely possible is district election of Electors, in each congressional district.  States can do this by simple legislation, as Maine and Nebraska already have.

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The powers of the President were designed to be sufficient to lead the nation but insufficient to dominate the nation.  In the hands of a self-restrained leader such as the first President, George Washington, the extent of the powers of the Chief Executive were not a potential problem.

In the 20th century, books and articles have decried the “imperial Presidency.”  Their thesis is that recent Presidents have successfully claimed more power than the Constitution permits.  Part of the increase is natural. Because of the radical growth of the federal government, especially since the Great Depression.

Since all major officials are appointed by the President, subject to consent by the Senate, every growth in the size of the federal government is also, necessarily, an increase in presidential power.  But the other two areas of growth of presidential power – foreign relations and Executive Orders – are seemingly within the control of the President himself.  Things are not always what they seem.

The Constitution deliberately gives only to Congress the power to declare war. In recent decades, Presidents have committed acts of war against various nations without any declaration of war by Congress.  Most Presidents have, in taking such steps, referred to the War Powers Act, passed in 1973.

Under that Act, a President can send troops into battle or into situations where hostilities are imminent, only for 60 days, absent a declaration of war or a specific mandate from Congress. The President then has a possibility of one, 30-day extension.  When passed, shortly after the Vietnam War, the War Powers Act was hailed as a “restraint” on the powers of the President to move troops anywhere in the world on his own initiative, as Commander in Chief.

But in fact, the Act allows the President of the US to commit the nation’s military to acts of war against other nations, without any specific authority from Congress.  And once war is begun, chauvinism can cause the people to commit to continue the war.  This was exactly the evil that the Framers sought to prevent in the War Clause of the Constitution, an executive decision to begin a war without any advance control by the people’s elected representatives.

No one has ever caused any court to rule on the constitutionality of the War Powers Act in its 35 years of existence.  Yet any fair analysis leads to the conclusion that the power to begin a war cannot be delegated from Congress to the President because of a specific prohibition against that. So, this is a growth of presidential power that Congress turned over voluntarily. It was not taken by force by the President.

Executive Orders are another matter.  Such Orders were known by, and used by, Presidents going back to George Washington, but they have grown in subjects and intricacy in the 20th century.  Two very important Supreme Court cases arose from examination of specific Executive Orders.

The first is Korematsu, during WW II.  President Roosevelt issued an Executive Order requiring that all residents of the US west of the Mississippi who had at least one Japanese grandparent, would be rounded up and put in detention camps.  To its gross discredit, the Court approved that Order, over a sharp dissent.  Forty years later, Mr. Korematsu obtained a federal court order throwing out his conviction that was unconstitutionally obtained.

The second Executive Order case was Youngstown Sheet and Tube, during the Korean War. The steel workers went on strike.  President Truman issued an Order seizing the steel mills. The Court struck down the Order as beyond the President’s powers. (Congress promptly passed a law, doing what Truman had attempted.)

The use of Executive Orders to create legal requirements without obtaining congressional approval is a serious temptation for all Presidents.  An advisor to President Clinton once put the temptation in the clearest possible language: “Stroke of a pen. Law of the land. Kinda cool.”

The power to write laws necessarily involves the danger of losing the next election in one’s home district.  Only legislators at the state level, and Members of Congress at the federal level, are given that power.  Presidents (and governors) are violating the separation of powers when they seize that power.

Lastly, there is a cure for such usurpation.  Government can do nothing absent congressional authority to spend money on that action.  Executive Orders, like acts of war, can be defunded, unless Congress is unable or unwilling to muster the courage to act.  Yes, Presidents have seized powers they should not possess.  But Congresses have allowed them to do just that.

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Most of the Framers assumed that the federal courts would be the weakest of the three branches of government.  According to the Federalist, the courts would have neither the power of the purse (Congress), nor the power of the sword (the President).

The Framers were mindful of the history of England and other nations which had court systems that were supposed to be fair, impartial, and independent of the Crown.  Yet kings and queens and potentates would at best remove judges when their decisions were unsatisfactory.  At worst, they would jail or execute them, a fate which has befallen judges in some nations even today.

So the Framers gave the federal courts independence from the elected, political powers in two ways.  Judges were to be appointed for life during good behavior, and their salaries were guaranteed for life.  The intent of this was to allow judges to decide the case before them without fear of retaliation, even if the parties in the case or the judge’s decision were highly unpopular.

What the Constitution did not do, however, was to create a general court system with general jurisdiction. This was not an oversight, but was deliberate. The jurisdiction of the courts, like the powers of Congress, was limited, because general powers and jurisdictions remained with the States.

The Constitution created only the Supreme Court, and did not specify how many Justices it would contain.  So, over the years, the membership of the Supreme Court has varied from a low of five, to a high of ten.  The current number of nine is merely a tradition, made law by Congress.

The “original jurisdiction” of the Court is created by the Constitution in Article III: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls….”  The power is further defined in specific matters such as “states suing states.”

The second clause of Section 2 of Article III is especially important, but often ignored.  “In all cases affecting ambassadors… and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases…, the Supreme Court shall have appellate jurisdiction, … with such exceptions, and under such regulations as the Congress shall make.”

The Original Jurisdiction cases in the Supreme Court amount to about one per year.  They are filed directly in that Court, have case numbers starting with O for Original, and many involve either litigation between states over Howard Hughes’ will or water use from the Colorado River. These cases are half a percent of the Court’s decided cases, and about one in 2,000 of the cases presented to the Court each year.

No lower courts are required by the Constitution itself.  The federal district courts and circuit courts of appeal, and specialized courts such as tax appeals and foreign security matters, are all creatures of Congress, both to their existence and the extent of their jurisdiction.  As Section 1 says, they are “as the Congress may from time to time ordain and establish.”

Since Congress controls the entire existence of the lower federal courts, and all but a small fraction of the jurisdiction of the Supreme Court, one would think that the Supreme Court would be unable to act consistently and on major issues, contrary to the will of the people as expressed by the representatives in Congress.  Thomas Jefferson, who was not a Framer because he was Ambassador to France when the Constitution was written, reviewed the document and foresaw a darker possibility in the federal courts as established.

He referred to them as “the most dangerous branch.”  He wrote to his friend, John Eppes in 1807, “The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.”

In the Federalist, Number 78, Alexander Hamilton argued the opposite, that the federal courts were the “least dangerous branch,” because they “may truly be said to have neither FORCE nor WILL, but merely judgment….”  In short, the courts had no ability to do more than decide the case before them, on the existing law.  Whether experience has proven Jefferson or Hamilton to be right, is the next subject.

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There has been a radical shift in how justices conduct themselves on the Supreme Court, beginning in the 1930s.  Not coincidentally, 1925 was the first year that anyone who was nominated for the Supreme Court appeared in person before the Senate Judiciary Committee.  Not until 1955 did the committee hold public hearings on all nominees before making a recommendation to the whole Senate.

Before those changes, nominees were considered based on their probity of character and knowledge in the law.  Candidates who were acceptable on both of these points were routinely accepted by majority vote of the Senate, and they went onto the court.  Before the 1930s, the Senate usually voted on a nominee within a week.

The process of questioning prospective justices about their political leanings came later.  It reached its nadir when the personal background of a candidate was both examined with a microscope and discussed with gross dishonesty, when the candidacy of a former Yale Law School professor, and judge on the D.C. Court of Appeals, was rejected in 1987.

Based on his background, Judge Robert Bork would have been approved with little or no dissent, most times in the Supreme Court’s history.  But his hearing was such a break with the past that his name became a verb.  To be “borked” means to be rejected for a high position in government based on irrelevant (and sometimes dishonest) personal details.  That new verb applies regardless of which side of the aisle is making the attacks in the Senate.

In theory, and also as a matter of their oaths of office, justices of the Supreme Court are expected to accept the facts as given, and then follow the law and especially the Constitution, wherever it leads.  They are not supposed to substitute their personal opinions for the decisions made by elected legislators in the states or in Congress.

The most recent case in which a majority of the court substituted its own opinions for the decisions of the legislature is Boumediene v. Bush (2008).  After using a prior decision to invite Congress to pass a law concerning “illegal combatants,” in this case the court struck down the law which Congress had written. This caused one of the dissents in this case to accuse the majority of “bait and switch.”

Unfortunately, in considering modern decisions of the court, people need to ask the questions backwards.  Readers need to ask whether certain justices of the court have reached a political judgment first about the case presented.  If so, are those justices then ignoring some of the facts and twisting the words of the Constitution in order to reach the intended result?

Another recent case is Kelo v. City of New London.  Here, the court, again by a 5-4 margin, held that the city could take the home of a longtime resident and turn it over to a private developer, who would then make a “higher and better” use of the property and “pay more taxes.”  The court held that this constituted a taking “for public purposes” under the Constitution.

Promptly after this decision, a majority of the states rejected this power the court had just handed them, passing laws which forbade takings of private property to be turned over to other private owners.

US v. Lopez (1995) stands in contrast to those other cases.  Here, Congress passed a law forbidding the possession of guns within any school zone.  Congress said this was a matter of “interstate commerce.” The court decided that while it might be a “good idea” to bar guns in such areas, it was not within the constitutional powers of Congress to pass such a law, and struck it down. Although this conclusion seems obvious, still this was a 5-4 decision, with four justices voting to uphold the law.

Press reports on Supreme Court decisions tend to cover them like a horse race, i.e., who won, and how close was the victory?  It is a difficult task for citizens to read between the lines. You need to see where the Constitution led in a particular case to determine which justices respected the Constitution, and which did not.

It is important for you as voters to attempt that understanding, because only then will campaign references to Supreme Court appointments by presidential candidates, make sense.  Only then will the various efforts by Congress to reign in certain actions by the court, be understandable.

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In the short run, one could offer several provisions in the Constitution as the most critical. In the long run, one provision stands out. Without Article V, the amendment provision, the Constitution would have long since failed and been abandoned.

Consider the early history of America. Our first government under the Articles of Confederation failed precisely because of its amendment clause. Under Article 13 of the Confederation, Congress could propose amendments which had to be “confirmed by the legislature of every State.” Twice in the final years of the Confederation, amendments were proposed to save that government. Both failed due to a negative vote of just one state.

America’s ambassadors were reduced to begging in foreign capitals for high interest loans to keep the government afloat. Shay’s Rebellion, in response to the failure of the government, threatened to spread beyond Massachusetts.

So, when the Framers met in Philadelphia, they understood that a better provision for future changes, for amendments, was essential to their task. James Madison wrote of Article V that it “seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.” Federalist, No. 43.

Benjamin Franklin’s famous speech at the end of the Convention about the need for compromise among the delegates recognized that the Constitution was not perfect as written. He and the other Framers expected changes, in due course. Since 1787, more than 10,000 proposed amendments have been submitted in Congress. Most died without a hearing. Only 27 passed in Congress and were ratified by the states..

So, the historical record shows that the Framers were right about Article V. Until recently the process has not presented either extreme facility or extreme difficulty, either of which could have destroyed the Constitution and ripped the legal fabric of the nation apart.

But, two forms of attack can turn Article V itself into a dead letter. Whenever a majority of the Supreme Court take it upon themselves to change the meaning of the Constitution without waiting for the people to effect an amendment, those Justices are attacking Article V. Witness Boumediene v. Rumsfeld concerning legal rights for alien combatants.

Or, whenever Congress passes a law, the President signs it, and the Court fails to strike it down as unconstitutional, Article V is savaged, if that law contains a facial attack on the Constitution. Witness the McCain-Feingold campaign finance “reform” law, which many Members of Congress had doubts about, but passed it anyway. The President had doubts about it, but signed it anyway. Then five Justices approved it, even though freedom of speech and freedom of the press were both attacked in the law. (A later decision has backed away, somewhat, from the Court’s original failure.)

In short, Article V is both the safety valve of the Constitution, and the means by which “we the people” retain ultimate control of our government. That means abuse of Article V is, in the long run, a guarantee of failure of our Constitution. Whenever the Supreme Court on its own, or Congress and the President with the cooperation of the Court, change the Constitution without the consent of the people, the Constitution dies, by degrees.

Among the other provisions, Article IV concerns the states. It requires that they respect each others’ official acts, which will become a heated issue when homosexuals who married in California, return to their home states and demand recognition as married couples, there. Article IV also provides for extradition of criminals, admission of new states, and the guarantee of “a Republican Form of Government” to all states.

Article VI preserved the credit of the new nation, providing that all prior debts (mostly during the Revolution) were recognized and would be paid. It provided that the Constitution is “the supreme Law of the Land.” And it provided that all elected officials at the national or state level, and all judicial officials “shall be bound by Oath or Affirmation, to support this Constitution….” And it provided that there would be “no religious test” to serve as a federal official.

Finally, Article VII provided that the Constitution would go into effect between the states “so ratifying the same,” once nine states had ratified. This provision was important because two states, Rhode Island and North Carolina, did not ratify, and the Union contained only 11 states when George Washington was elected as the first President, in 1789.

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The eleven Amendments which constitute the Bill of Rights are more important than merely a recitation of rights beyond the reach of the federal government. Collectively, they are the third great document of American liberty, after the Declaration of Independence and the Constitution.

Yes, I said eleven, though you were taught in school there were only ten.  There were only ten, back then….

But, seven states demanded amendments to protect individual and states’ rights as a price of ratifying the Constitution originally. When the Anti-Federalists came close to defeating the ratification in the critical states of New York and Virginia, the Federalists agreed that there would be a Bill of Rights.

Over 200 proposals for amendments came in from the states.  James Madison, by then a Congressman, boiled them down to 17 amendments and they passed the House.  The Senate passed 12 of them, and the states promptly ratified Amendments Three through Twelve.

Original Amendments One and Two were defeated at the time.  But the states took up the cause of Amendment Two, and in 1992 it was accepted as ratified, the last work by Madison to appear in the Constitution, Amendment 27.  No court has yet seen fit to apply and enforce it, but that should eventually happen.

Quick recap: the First Amendment protects the rights of free speech, free religion, free press, political freedom, and bars any official church.  (That last part has been, wrongly, interpreted to mean no mention of God in public places.)  The Second Amendment protects the right of individuals to keep and bear arms.  (It only took 219 years for the Supreme Court to get that right.)  The Third limits the government from forcing private homes to take in soldiers — not a serious problem any more.

The Fourth Amendment bars unreasonable searches and seizures.  (It should be noted here that this, and all other rights, are guaranteed to AMERICANS, not to foreigners in foreign lands.)   The Fifth bars double jeopardy, self incrimination, and loss of life, liberty or property without due process of law.  It also requires just compensation when private property is taken for public use.  (In the Kelo case, the Court decided 5-4 that a private developer taking your house was a “public” use.)

The Sixth Amendment provides for a speedy trial, an impartial jury, the right to know the charges, confront the witnesses, and have assistance of counsel.  The Seventh guarantees the right to civil trial by jury if the case involves more than a quaint $20 (that was an average year’s income when the Constitution was written), and says that facts tried to a jury shall not be reexamined by any Court except by common law.

The Eighth Amendment forbids excessive bail, excessive fines, and cruel and unusual punishment.  (What the Court now calls cruel and unusual punishment would have been kid glove treatment when that was written.)  The Ninth was put in for a purpose that the modern Court has largely ignored.  It says, “The enumeration in the Constitution of certain rights shall not be construed to deny … other rights retained by the people.”

The Tenth Amendment was, when written, a powerful and essential one. It says, “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 Court gut-shot this Amendment in 1981 in Hodel v. Virginia Surface Mining.  The Court said it would no longer seek to enforce this Amendment, but leave it to the state and federal governments to fight out their differences politically.)

The 27th Amendment, also from Madison, requires a House election to intervene before a congressional pay raise can take effect.  Congress violates this Amendment every two years, on average, taking pay raises they are afraid even to vote on, specifically.  So far, no court has called them to account and stripped their latest pay raise.
What modern courts have done, with and to the Bill of Rights, are a microcosm of what courts, Congresses and Presidents have done with the whole Constitution.  Like the Star-Spangled Banner after the Battle of Fort McHenry, the Constitution and the Bill of Rights are singed and torn from the assault on them.

The Constitution and Bill of Rights now need serious repair.  It is a close call who will prevail, those who benefit from the damaged parts and want to keep them damaged, or those who understand what a written Constitution means, and want to restore it to its former strength and meaning.

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The remaining Amendments are a mixed bag. Some make essential changes, some only housekeeping.  The Eleventh solved a minor problem, precluding federal court jurisdiction in cases against any State by citizens of another State, or foreigners.  The first important Amendment was number Twelve, caused by the election of 1800.

Perhaps the greatest lie uttered by anyone seeking the Presidency was made by Aaron Burr.  He agreed to be Vice President under Thomas Jefferson in 1800.  The “ticket” of Jefferson and Burr won.  But Article II then provided that the leading vote-getter in the Electoral College would be President, the runner-up, Vice President.

Since Burr and Jefferson tied, Burr claimed the Presidency, and sought to steal it through the House of Representatives, which under the Constitution had to decide.  Fortunately for history, the House chose Jefferson.  Promptly thereafter, the Twelfth Amendment provided that the President and Vice President would be separately balloted.

Amendments Thirteen, Fourteen and Fifteen are the Civil War Amendments.  The first abolished slavery.  The second has numerous applications today, of greater or lesser validity.

For instance, Fourteen guarantees “due process” and “equal protection of the laws” to all citizens of every State.  Who are citizens?  The language is “all persons born or naturalized in the United States, and subject to its jurisdiction.”  Section Five of the Fourteenth Amendment appears in many others.  “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

So, the problem of pregnant aliens struggling through the deserts of Arizona to have a baby in the US, who would be a birth-right citizen and help the whole family get into the US, is easily solved.  Congress can BY LAW define such children as “not subject to the jurisdiction,” just as it has historically for foreign embassy personnel in D.C.  That would solve this problem.

This is just one of many examples why the people should read the Owner’s Manual, then demand that the press read it, then demand that Members of Congress read it, so public policies can be correctly handled.

Amendment Fifteen provided that no citizens should be denied the right to vote because of race. Other voting Amendments are Nineteen, enfranchising women; Twenty-four, barring poll taxes; and Twenty-six, lowering the voting age to 18.

Amendment Sixteen, thought to be a good idea at the time, has had major, unintended consequences.  During the Civil War, Congress established an income tax to provide more money for the war.  The Supreme Court struck down the tax as unconstitutional, because the Constitution barred any “direct Tax” except in proportion to population.  This Amendment, therefore, is the basis of the income tax.

Congressional opponents of the tax had the votes to cap it at 10%.  They rejected this, because they thought it might encourage the government to increase taxes to that level.  (Now there’s a quaint idea.)  Many changes in the Constitution and in court decisions have led to the current federal government which is large, intrusive, expensive, and debt-ridden.  None are more important than the 16th Amendment.The other Amendment causing a radical change in American government was the Seventeenth. This ended the original design where Senators were elected by the state legislatures, to having them elected by popular vote.  Senators then became national figures, reporting to national constituencies and favoring national fund-raising, rather than being the voices of the states in the federal government.

The Eighteenth Amendment, which created Prohibition, and the Twenty-first, which ended it, are further proof that Jefferson was right.  Even when the people make a mistake, as with Prohibition, the only proper source of sovereignty is in the people.

The Twentieth Amendment shortened the “lame duck” period for Congress and the president, moving the swearing in from March to January.  It also allowed Congress to deal with untimely death of the president before swearing-in.  The Twenty-second Amendment limited president and vice president to two terms.  (Many states have term limits on officials, creating what the Framers called “rotation in office.”)

Amendment Twenty-three gave the District of Columbia three Electoral College votes. Amendment Twenty-five covers replacement of the president in the event of death or disability.

The Amendments altogether make a general point. Every change made legitimately, through Article V with ratification, respects the Constitution and popular sovereignty.  Every “amendment” which is made surreptitiously, by the Congress, the Court or the President without ratification, disrespects the Constitution and the people.

No one said this more clearly or more eloquently than Thomas Jefferson in the Kentucky Resolutions of 1798:

“In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

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