Constitution, Why and What

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It appears from here that many Americans have a very strange view of their Constitution.

The United States Constitution, although frequently mentioned in our public discourse today, seems to occupy a spot in the public mind somewhere between holy writ and Delphic oracle. People attribute to it all manner of meanings, concepts, and statements that simply aren’t there. People also assign profound meaning to certain things expressly because they are not in our Constitution, claiming to understand the founders’ intent in terms of what they did not write. This is bizarre.

What the Constitution is, and all that it is, is a detailed manual of the design, structure, and operation of the United States Government. More on that soon.

Theoretically most Americans have at least a vague idea of how and when we came to have this particular document, but allow me to  touch on the historic high points briefly.

The same Continental Congress which adopted and signed the Declaration of Independence wrote and adopted a document called the Articles of Confederation, which was an attempt to codify the relationship between the 13 independent colonies who were joining together to fight the coming war.

Union between the colonies had never existed before except through England, Parliament and King. They were 13 separate colonial nations agreeing to join together and throw off their shared colonizing power. When Thomas Jefferson wrote about “my Country,” as he often did, he meant Virginia. He used the terms almost interchangeably. Maryland was no more part of his country than France was. So the Continental Congress wrote up a paper that said, in short, we’ll do this together but nobody can tell any of us anything. We are equals. Each of us is independent states, which in 1776 meant nations, but we’ll fight this war together and afterward, we’ll meet from time to time and talk.

The United States won the revolution. They threw off the English. Afterward they operated as 13 independent nations for 10 years, by which time the political leaders in each of those 13 states knew that the nation they had attempted to create was not working. A broad overview can be found on Wikipedia here and in histories of our nation.

So they trudged back to Philadelphia to work the issues out. The stated plan was to fix the Articles of Confederation so they would work. The articles turned out to be, like a poorly designed and rotting building, harder to fix than to replace. Instead, the 50 to 90 (roughly) men spent that summer designing a new government which would bind these 13 formerly free and independent nations together as subordinate units under one nationwide federal government. The government they designed was unlike any which existed, or had ever existed, anywhere on earth.

As might be expected with Version 1.0, there were a few bugs.

They did not write poetry. They did not write philosophy. They wrote a detailed how-to manual. After they finished the manual they wrote one great piece of philosophical prose, the Preamble to the Constitution for the United States, but the preamble is the only artwork in there.

The Constitution says, in a nutshell:

First, in Article One: The Congress will run the country. They will make all the laws, spend all the money, raise all the taxes. Congress will raise and equip the Militia, in a nation without a standing army. (The Constitution provides that no money can be appropriated for an army for longer than two years.) Congress will decide if and when the new nation will go to war. Congress will have the power to remove by impeachment and conviction any member, elected or appointed, of any branch of the federal government including their own.

The Constitution gives Congress these specific powers, and others, plus the world’s biggest fudge factor: Congress may pass whatever laws they might need to provide for the general Welfare and the common defense.

The Constitution lays out in detail what the two Houses of Congress will be, how they are formed, how long they serve, how often they must meet (at least one day a year). It provides an overview of the process of electing Congress , which has been amended some. General housekeeping is in there, like how often we’ll have censuses in order to apportion Congress among the states, plus the shameful and legendary pro-slavery “3/5 of a person” clause, long amended out of operation but still there to read.

There is quite a bit of text specifying how the Congress will function, including that both houses may make their own rules.

Also in Article I is the express rule that officers of the United States may not take anything of value from any foreign government. This is to prevent larger and wealthier nations from bribing United States officials. It is not at all complicated. It says, No foreign nation, king, or prince may give any gift, pay for services rendered, or title of nobility to any member of the United States government. It was the framers’ way of making sure our weak new government did not get bribed into subjection by some foreign power.

Article Two of our Constitution creates and defines a President and specifies his powers.

The President will oversee the Congress, but he can’t overrule them. If he doesn’t like a bill they have enacted it he can force them to reconsider it, and require that they pass it by 2/3 majority in order that it become law. He cannot veto it outright; if 2/3 of both houses agree that some bill should be law they can enact it over the President’s objections.

The Constitution expressly provides that the President shall be the public face of the United States to the world. He (now it can also be she) speaks for us to all people and negotiates all agreements. The Senate can say yes or no on an agreement with another nation, but only the President may negotiate it.

The President is required to tell Congress from time to time how the nation is doing, and what laws they ought to pass to help it do better.

The President appoints all judges, ambassadors, and certain other public officials. The Senate has the power to “advise and consent” to the appointments. The Constitution doesn’t address lunacy like a Senate just refusing to seat any judge a President might appoint because they are denying that President his Constitutional power; our Founders were more-or-less honest men and didn’t foresee a time when we would be governed so dishonestly.

After Congress sends us to war the President commands our forces. He (or, again, she) is Commander in Chief.

And finally, the President of the United States is charged with seeing that the laws Congress passes – specifically all the laws – be faithfully executed. This is what makes the President look so powerful: He or She has the Constitutional obligation and power to make every single American obey every single law Congress ever passed.

It’s absurd, of course. No single human has the reach. However, even an approximation makes him look like a Pretty Big Dog.

Article II also contains the rules for electing a President.The electors are in here, although technically the term Electoral College is not. There have been numerous attempts to eliminate the Electoral College by amendment; none have succeeded. The Electoral College is a deep and emotionally charged topic; I am not going to address it here beyond acknowledging its existence.

Article II contains a second clause about taking money from governments, a clause that applies expressly to the President: The President will be paid a salary for his services, and otherwise may not receive any money in any way from the United States government or from any state government.

While the first emoluments clause was to prevent bribery, this clause prohibits theft by corruption. A President would be in a unique position to steer treasury money to his own pocket so the framers specifically prohibited that.

There are some other details but that is the main focus of the President’s job.

Article Three creates a supreme Court (lower-case “s” in original) and gives Congress power to create lesser courts. It provides that judges will serve “during good behavior.” Then our Constitution grants our supreme Court jurisdiction over absolutely everything that ever happens period. Congress has the power to do anything; the supreme Court has the power to undo anything.

The supreme Court has jurisdiction over “all cases” in “law and equity.” No limits whatsoever. The supreme Court is the final judge over Fact and Law. The supreme Court has specific, Constitutionally spelled out authority over all cases where any state or the United States is involved, over all cases on land or sea, everything. The supreme Court has absolute jurisdiction in the United States.

The rest of the Constitution is simple rules for managing a nation made up of semi-independent states, defining in broad terms what those states may do and may not do, and for doing things like amending itself. Our Constitution states that the nation through its government owns its land and owns its debts. There are important issues there. The only way to actually know the rules of life in America is to read the Constitution; that’s where they start.

The entire document, although written a long time ago, is easily understood by anyone who reads at the level expected of a high school graduate and who possesses a decent vocabulary. A dictionary is useful to refresh the reader on moderately archaic but still clear terms like emolument. The Constitution is not a bunch of mumbo jumbo that only Learned Attorneys and Judges can understand. It was written by reasonably clear thinking people in as clear a language as would express their instructions. The Constitution for the United States is every American’s property; having at least a working knowledge of it could be said to be a responsibility of every citizen. Particularly now, in 2017, when so many fictions about our Constitution float unchallenged through the ether and the people running our government appear to operate above or immune to our laws, it behooves Americans to learn their Constitution.

The Constitution is not philosophy, it is instructions. And it most expressly is not some “string of pearls” from which one can pluck free standing phrases of wisdom. The Constitution – the original, pre-Amendment, pre-Bill of Rights Constitution, is one coherent whole document spelling out the details of one coherent and complete national government. The Congress does not exist without the President. Neither exist without states, and elections. Our nation does not exist without an independent judiciary. The Constitution is one thing, which must be viewed in its entirety to have any meaning whatever. Then after one obtains a grasp of the entire Constitution  one can use it as a source for verifying specific rules applicable to specific parts of our national structure. One can say, I think that particular rule is somewhere in Article III, and look it up to make sure. These are the rules of the game, just like the rules of poker. Or bridge. The Constitution is the Hoyle of nationhood.

Governing, being a nation, is like any other human activity: one can either agree on rules or squabble endlessly. Constitutions are rules for the activity of being a nation.

The above is drastically shortened from the full scope of the Constitution. There are few if any wasted words in the long document. I’m just trying to give the reader a feel for what’s in there. These men from these 13 separate nations gathered together and designed a nation, by designing one top-down, sovereign government. Now they had to go home and sell their neighbors on the idea of giving up their hard-won independent sovereignty to this new single nation. Not everyone agreed. Thomas Jefferson wasn’t a big fan of the idea at all, and people listened when he talked.

That’s how all that slavery crap got in there. I’m not making excuses for slavers, but they wrote this thing in 1787 and needed to get a bunch of slave-owning independent sovereign nations to sign on. Or not. So they protected slavery from any amendment or outlawing for 20 years. Our past has its ugly parts.

The rules at the start were, if any 9 states ratify this Constitution, those 9 states are a nation. The rest of you can come or not; your choice.  All 13 ratified it.

This history matters today. Our existence as a nation is being widely challenged, by Americans, some of them perhaps well meaning. The very idea of a national government is again being challenged, expressly by the party that is running it as well as by other people. The idea of a federal government which had authority over all states and all people in the nation was never universally accepted.

Before ratification there were Federalists, who get mentioned frequently these days, and Anti-Federalists, who have mostly vanished. Thomas Jefferson was an Anti-Federalist. When the Federalists won the election he accepted that and participated to the best of his ability as Secretary of State and as President.

The men of the Constitutional Convention were so busy designing a government that they forgot to even specify what rights the people would have, i.e. limits on that government, The first ten amendments, – the bill of rights – were an afterthought. Important, but still, not the original focus. Just: write the rules for a nation and a national government, which are inseparable.

We had another round of the Federalist : Anti-Federalist argument, with gunfire, about 80 years later. We call it the Civil War. Yes, the Civil War was about slavery, but the way it expressed itself before the shooting started was in terms of states being free of the impositions of a national government. The resultant entity after secession took its name from the name of our governing document before the Constitution. calling itself the Confederated States. The justification of the war was the states’ alleged right to disassociate themselves from some busybody government who was going to take their slaves away from them. No more of this All One Country crap, we’re going back to being independent nations. With slaves.

Look around you. The concept of one sovereign nation is being challenged from both sides.

My side is legalizing pot and telling the Federal government to buzz off. The other side is working on a Jim Crow / Taliban south and midwest. Both sides, alas, have blown off the concept of Federalism.

I am a Federalist. I admit it. I think in order to survive we need to retain one Constitutional republic from sea to shining sea, out into the Pacific Ocean and almost to Russia.

If we are to succeed, it would be best we do so under our existing Constitution. Not because it’s perfect, but because it’s a set of rules everybody can read and agree on, it has functioned reasonably well for almost a quarter of a millennium, and it’s already there.

If the reader wishes more detail on our Constitution, I offer the complete text, with simple translation into modern English, here: The Annotated Constitution,

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One thought on “Constitution, Why and What”

  1. Hey Jeff! Just finished reading this essay. I was a fool as a teen and didn’t apply myself to my studies, I barely made it to 11th grade and quit just after school year started. I say that to say this: Thanks for such an easy to read and understand paper. I knew a very sketchy outline but you filled much of that in for me. It’s exciting to know such thought and care was put into the formation of this union of states.
    Your work is appreciated, again.

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