Patriots To “The People”
Who were “the People” according to the great Americans I mentioned above? They were those who had personally endured the intensified deprivations and depredations of the British government of the new king, George III, from 1763 to 1781 – the fear of violence and murder; the torment of arbitrary laws and taxation; the quartering of troops in private homes; the warfare in their front yards, laws unevenly and unfairly applied, private property confiscated or destroyed without due process, arrest and transfer to England for trial along with the standard terror, rape, pillage and plunder associated with war.
They were the ones who remained after the war – the survivors – as their loyalist cousins departed for England, Canada or the Caribbean. They were the ones who had lived Martin Luther King, Jr’s maxim that,
“There comes a time when one must take a position that is neither safe, nor politic, nor popular, but … must take because conscience tells [them] it is right.”
They understood sovereignty, having experienced a sovereign first-hand in George III. It was to the sovereign whom the Framers addressed their grievances in the Declaration. They were also men of the Enlightenment who believed that their Creator was the ultimate Sovereign and was the entity who ultimately dispensed “unalienable” rights to human beings – the rights they were now intending to jealously protect from any government “with a firm reliance on the protection of divine Providence, … (to) mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” (Closing sentence of the Declaration of Independence)
And protect them they did. The prescient French writer and philosopher Alexis de Tocqueville, who toured America extensively in 1831 and wrote of his observations,
“I sought for the greatness and genius of America in her commodious harbors and her ample rivers – and it was not there … in her fertile fields and boundless forests – and it was not there … in her rich mines and her vast world commerce – and it was not there … in her democratic Congress and her matchless Constitution – and it was not there. Not until I went into the churches of America and heard her pulpits aflame with righteousness did I understand the secret of her genius and power. America is great because she is good, and if America ever ceases to be good, she will cease to be great.”
With this kind of understanding, the Framers ensured that the ultimate premise of the Constitution was the recognition of the absolute, God given sovereignty of the individual in the collective state. It was therefore, no accident that the Framers began the document with the universal and immortal words “We the People” (note the capitalization). This was a continuation of the fundamental theme of the Declaration of Independence, where Jefferson laid out the primary argument for the existence of the United States when he wrote:
“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. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed …”
Their’s, and the People’s understanding of the meaning of the 9th and 10th Amendments was unambiguously clear – the federal government could not exercise any coercive power over the States that the States – and, ultimately, the People – not specifically granted in Article I of the Great Document.
The Bill of Rights was the collective voice of a People who had endured much too much governmental coercive power. When government becomes destructive of these ends, it is,
“the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness.”
The entire exercise of the Framers was directed at the “fashion(ing) of durable agreements” (per Constitutional scholar Jack N. Rakove) concerning the relations among and between the thirteen new ‘States’ and between the States and the new federal entity.
Because of the fatal flaw of the Articles of Confederation – lacking any power to coerce the colonies to act in concert with each other and with the national authority – the Framers made the coercive power of federal law an essential, though profoundly limited, element in the new Constitution.
In the 10th Amendment, the People insisted upon limiting the scope of the coercive powers to those areas specifically enumerated in Article I and in the Ninth Amendment the Ratifiers confirmed the sovereignty of the People to all areas beyond their enumeration in the Constitution.
It is this central and essential element of the Constitution that is now under attack from the PLDC.
So, what did all of these great contemporary minds believe the People had become in the early ‘50s? They were for the most part the success stories of the 150 years since the debates about ratification, the presidency of George Washington who established executive power and the career of John Marshall as Chief Justice who, by nursing commercial and financial interests under the protection the Constitution, “invented” a nation where, according to President Calvin Coolidge, “…the chief business of the American people is business” – the life-force of the nation.
They were mainly the sons and daughters of European immigrants, the heirs of thousands of years of Western Civilization. They brought to America the heritage of Socratic Greeks, Roman solons, dauntless Scandinavians, German engineers, the English and French enlightenment, Spanish flair, Portuguese curiosity, Italian art and Scots/Irish determination and built a culture over those 150 years based upon personal liberty and unbridled opportunity.
Later, they were the intensely industrious Chinese and Japanese, brought to the “Left Coast” to help invent the American West and finally, they were the extraordinary survivors of slavery who had developed a unique identity as a captive community and continued, under the enormous burden of Jim Crow, to strive toward the attainment of full participation in the American Dream.
These adventurers, both men and women, brought physical courage, industriousness, ingenuity, inventiveness and an indomitable spirit that resulted in the frontier moving inexorably westward until it reached the West Coast of the continent. By the late 1800s, legendary historian Fredrick Jackson Turner would declare the frontier gone.
As soon as stories first began to circulate in Europe of an unexplored land to the west – across the Great Sea – the die was cast that this would become another chapter in the European Age of Exploration – the final phase of the Epoch of Conquest – seagoing adventurers traveling on voyages of discovery to new and exotic lands in Africa, the Far East and now the Americas, sponsored by sovereigns or merchant companies in search of treasure or valuable raw materials, establishing a Western style civilization in aboriginal lands and returning with precious cargoes to enable their monarchs to support growing populations and compete with Continental rivals.
At first, North American settlers crossed the ocean to seek peace from ancient religious struggles and prosperity from new economic opportunities to be found in fertile and available land, new crops, the fur trade and timber in a mysterious land populated by (constantly warring unfortunately, and sometimes barbaric) aboriginal tribes.
These native people were called Indians based on their first historical contact with a European – the Italian explorer Christopher Columbus – who thought he had reached India by sailing westward in 1492.
The settlers knew how to defend themselves from political enemies in Europe – or from unfriendly natives in foreign lands not under the jurisdiction of a competing empire (first in Africa, then in the Middle East, South Asia and finally, the Americas) – using superior technology (like gunpowder from China), weaponry, engineering and tactics – means they first learned the hard way – from the world-traveling Scandinavian Vikings starting in the 9th Century.
As Europeans, they believed themselves a superior people simply by their record of being successful in their missions to explore and exploit raw materials and wealth from new lands. They considered the natives they found in most of the new lands (Africa, the Americas, the East Indies, the South Pacific etc.) to be primitive by European standards – living in a virtually pre-historic world that seemed to lack much permanence in favor of a nomadic culture.
As Christians, their first impulse was to convert and “civilize” them and, in virtually every expedition, although always greatly outnumbered, they survived and returned home as heroes (Ferdinand Magellan notwithstanding – having been killed in the Philippines on the way home from his attempt to circumnavigate the globe in 1521).
These settlers, as diverse as they all were, amazingly had one thing in common. They had left their homelands forever and crossed vast oceans to reach America. But, no matter their homeland, they all came from a place that lived in the past – where memories of the hard times collectively clouded their view of the future. Each immigrant had clawed their way up that mountain of despair to break free of the fog of times-gone-by, that would hold their families and friends in perpetual, psychological bondage, and had seen a clear vision of their own future – a future in a sunlit America – a future that would belong to them alone and not to age old customs and traditions.
They would come singly or in great migrations from Ireland and Scotland, from Germany and Scandinavia and from Eastern Europe as the industrial revolution and westward expansion took hold in America. They first endured crushing and incomprehensible poverty in the stifling, filthy and overcrowded tenement houses in the great cities along the Atlantic seaboard. Fathers and young sons working side-by-side in the factories; mothers and daughters doing “piecework” on their kitchen table in the hovel they called home. They threw buckets of waste into the streets.
Occasional trips by horse-drawn streetcar to the suburbs for a day in the country or at the beach allowed them to see where some had been able to build a small cottage of their own on a small piece of land away from the smog of the fire-belching factories and the stink of the tenements. This became their dream – the American dream.
Later migrants headed west into hostile territory, crossing the continent in covered wagons and on foot, enduring attacks by fierce, painted and merciless assassins, survived wildfires, floods and mind-numbing cold as they pushed the frontier into the Pacific. They cultivated the Great Plains and made them the world’s breadbasket. They lived in sod houses. They built the railroads that connected the oceans. They persevered.
They knew there was no going back, so they spiritually cut ties to the old country, adopted that optimistic spirit that is the essence of America and applied themselves to assimilating into and succeeding in American society by adopting the American culture, “Americanizing” their very names and respecting America’s institutions by carrying them with them across a continent. Usually, within two or three generations they were officially proud Americans, but, in reality, they had been Americans all along.
They were, in brief:
* Emma Lazarus’ “tired, poor, huddled masses yearning to breathe free, (some were) the wretched refuse of teeming foreign shores come homeless and tempest-tost” to America – legally, through Ellis Island in New York harbor or Angel Island in San Fransisco.
* They were the indefatigable and endured the danger and the tenement filth and the backbreaking work of newly industrial America to create their American dream; pioneers who tamed and settled a continent;
* The sainted Abolitionists who struggled to end slavery, braved violence and hatred to champion the cause of equality cited in the Constitution and achieved their dream, at least on paper, in the aftermath of the Civil War;
* The Captains of Industry who invented the modern world that only they could see, with boundless energy, outrageous ideas and singular tenacity;
* The common man from the ordinary town – Thornton Wilder’s “Our Town”, who voluntarily took on all the evil in the world twice in the 20th Century, to make it safe for democracy, asking nothing in return;
* The patriotic generations of mothers and fathers who sacrificed against enormous odds to bear, educate and raise their children to be the succeeding generations of extraordinary citizens of this remarkable place. They were the “New Collosus”
(There will be much more about the People later when we look at “Colonists to Constitutionalists”
* Finally, there were the ‘defilers’ of the unique qualities of the American people and their institutions who were now finding their voice in government, the press, the courts, entertainment and academia. It was this last group, these outliers, who worried the great minds that I had the privilege to be exposed to at such an impressionable age. It was their ideological ancestors, the Progressives who, after the Civil War, had championed a strong central government and urged it to centrally regulate financialism, industrialism and continental expansion.
Perhaps forgetting that “the road to hell is paved with good intentions”, this was the newly popular central government that then coerced power from the People with the income tax and Prohibition, abused the People with state sponsored propaganda during the First World War and extra-constitutional power during the Great Depression and who came together in a loose confederation of intellectuals, academics, jurists, journalists and entertainers to compromise the truth that would be told to the People from their first day of school to their last testament.
But it was the courts, who would find hidden meanings in the words of the Constitution that would fundamentally change the character of America. By arguing that the Constitution is a “living document” they found that they could make the written words of the Founders mean anything they would want despite strict cautions from the Founders themselves. “Learned counsel in Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 187, having suggested that the Constitution should be strictly construed, this Court, speaking by (the great) Chief Justice (John) Marshall, said that when the original states:
“…converted their league into a government, when they converted their Congress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature empowered to enact laws on the most interesting subjects, the whole character in which the states appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected… What do gentlemen mean,” the Court inquired, “by a strict construction?”
“If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, one might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent — then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded.”
What Marshall has cautioned in this passage is that some – otherwise permissible – approaches to interpreting the Constitution, other than strict construction, does not include the authority to change the original meaning, intention, interpretation, understanding and/or implementation of the words of the written Constitution.
Of course, in Roe v. Wade and NFIB v. Sebelius, to name just two of many cases, as we shall see, Marshall’s cautions about these critical elements of the written words of the Constitution – “…natural and obvious import”; “…usually and fairly understood”; “…consistent with the general views” – of the Constitutional language were utterly demolished, leading to tragic, though not unintended, consequences.
Somehow, equality before the law in 1865 and equality of opportunity in 1954 became equality in outcomes, specifically the People’s wealth – however meager, through an intentional policy of income redistribution, beginning in January 2009.
If these defilers were to lead America into the future, how had they come to challenge the purpose and direction of America’s founders and its “greatest generation” and what would become of all of us? “Auntie Ayn” worried also.