Weekly WhitakerOnline.org Articles
July 23, 2005
The Annotated Constitution
“We the People”
OUR Posterity
Fun Quote:
You know the place in the Post Office where they put up pictures of escaped felons and Public Enemies?
I saw my photo up there. Underneath it said,
“Least Wanted.”
.
The Annotated Constitution
A book I will never write would be called The Annotated Constitution. It would go through the Constitution line by line and say what the courts have done with each clause.
I have studied constitutional law and I have instructed constitutional law. The entire course consists of opinions by various judges. What hits you first is how short the Constitution is and how endless the judicial opinions are. The books of them fill whole rooms.
When you comment that much on a short document the document itself gets completely lost.
So I thought it would be fun to go through the tiny Constitution itself and talk about what Judicial Opinion has made of it.
I am not about to write another book now. Nobody’s interested.
But I do have an internet program and some points to make, so I decided to make a start at an Annotated Constitution there.
I did almost an hour on the Preamble to the Constitution alone. You can listen to it this Saturday at 2 pm at
THE UNTRAINED EYE will be called “Annotated Constitution – Preamble.”
-. -. -. -. -. -. -. -. -. -. -. -. -. -. -. -. -. -.
“We the People”
One thing everybody agrees on today is that America is a Principle. As National Review says, America is a Propositional State. According to the flag ship of respectable conservatism, you and I, whose families have been in this country for hundreds of years, have nothing to do with The Real Meaning of America.
Thailand may be the Thais, Japan is the Japanese, but America has nothing to do with the people who happen to inhabit it. America is based on a Proposition, a Set of Ideas. A Patriot is one who is loyal to those Ideas.
In other words, National Review agrees with liberals that you can be loyal to America without having any loyalty at all to the American people. Respectable conservatives feel Americans should be grateful because they do not actually HATE Americans the way liberals do.
Liberals feel they are being most loyal to the real America when they are blaming Americans for every evil in the world. Respectable conservatives want to give the little people who happen to be here a little credit. They don’t know Latin or Greek, but they do try to be loyal to the proposition, the principles, of America.
It never occurs to any conservative, much less any liberal, that it is not up to Americans to be loyal to THEIR principles. The idea that they can only be patriots if they are loyal to Americans never occurs to them.
At all.
Every Judicial Opinion agrees with this.
So it comes as a shock to read the Preamble to the United States Constitution.
It begins with “We the people of the United States of America,” and conservatives don’t mind that so much.
But it gets worse. And no conservative EVER quotes the rest. You see, “We the people of the United States in 1789 could have been very idealistic and they could have set down some ideals that America would follow after they died.
But the Founders added a fatal phrase, which no conservative EVER quotes:
“And OUR posterity.”
-. -. -. -. -. -. -. -. -. -. -. -. -. -. -. -. -. -.
OUR Posterity
“To secure the blessings of liberty to ourselves and our posterity.” That is the purpose of the Constitution.
That is the ONLY purpose of the Constitution, that is the only authority it rests on. The Constitution says nothing about All Mankind. The writers of the Constitution were trying to get it adopted by Americans. So they only claimed the authority of the American people.
You see, those same Founding fathers had just had experience with people who insisted that THEY knew what all mankind should do. America had declared its independence of such people. The whole point of the Revolution was that AMERICANS ruled America.
It never occurred to the Founding Fathers that they were writing a Constitution that told the rest of the world what it should do.
Nothing could have been more alien to those who wrote the Constitution than the idea that they were writing abstract principles that All Mankind was required to follow.
About fifty years after the Constitution was adopted, John Quincey Adams stated this principle again. Someone was asking America to defend freedom around the world (sound familiar?) and John Quincey Adams replied:
“America is the friend of all people’s freedom, but we are the defenders only of our own.”
Loyalty to America is precisely what every liberal and every respectable conservative says it is not.
Loyalty to America is loyalty to “We the people fo the United States of America… and OUR posterity.”
#1 by Catherine on 07/23/2005 - 2:19 pm
I see you have concluded what Lysander Spooner did. No one, not even our “forefathers” can enter into a binding contract on our behalf. What it was assumed, *I assume*, is that each subsequent generation would be trained in taking up responsibility for the gift of our God-given Liberty in Christ. This is the job of each generation, to pass the baton, to understand individual, self-governing responsibility for ourselves to our Ruler, Christ.
Carry on, brother~
Catherine
Oklahoma
#2 by Trager Smith on 07/24/2005 - 10:36 am
Bob,
It is plainly not true that there exists no annotated Constitution. I have in front of me a 2444 pp. book put out by the Government Printing Office called _The Constitution of the United States: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 29, 1992_. This edition was published in 1996 and costs over $100.
Particularly useful are appendices listing Acts of Congress and State Acts held unconstitutional in whole or part. True, the 14th Amendment extended part of the Fifth Amendment about due process of law to the States, but it was only in 1897 in Quincy Railways vs. Chicago that it “incorporated” another part, “nor shall private property be taken for public use without just compensation,” applying it to State actions. There may have been an earlier incorporation, but I’d have to carefully check.
I just checked: this is not quite accurate. Here’s what the Bill of Rights Institute says:
http://www.billofrightsinstitute.org/search/dtsearch.asp?cmd=getdoc&maxSize=200000&DocId=93&Index=D%3a%5cDTS%5fIndex%5cBRI%5fMain&HitCount=4&hits=78+9fc+d96+15e2+&hc=5&req=incorporation
Quincy Railways v. Chicago (1897)
The Court ruled that the state of Illinois acted unconstitutionally when it took property without paying just compensation. The Court ruled that Illinois had violated Quincy’s Fourteenth Amendment right to due process. The Court never actually said Illinois had to abide by the Fifth Amendment’s just compensation clause, but by using the Fourteenth Amendment to apply part of the Bill of Rights to a state action, the Court opened the door for similar protection of other provisions.
The following portions of the Bill of Rights have been incorporated against actions by state governments:
o Freedom of Speech, Gitlow v. New York (1925)
o Freedom of the Press, Near v. Minnesota (1931)
o Right to Counsel in Capital Cases, Powell v. Alabama (1932)
o Freedom of Assembly, DeJonge v. Oregon (1937)
o Free Exercise of Religion, Cantwell v. Connecticut (1940)
o No Established National Religion, Everson v. Board of Ed.(1947)
o Right to Public Trial, In re: Oliver (1948)
o Ban on Unreasonable Search and Seizure, Wolf v. Colorado (1949)
o No Evidence from Illegal Searches, Mapp v. Ohio (1961)
o No Cruel and Unusual Punishment, Robinson v. California (1962)
o Right to Counsel in all Felony Cases, Gideon v. Wainwright (1963)
o No Self-Incrimination, Malloy v. Hogan (1964)
o Right to Confront Adverse Witnesses, Pointer v. Texas (1965)
o Right to Impartial Jury, Parker v. Gladden (1966)
o Right to Obtain Defense Witnesses, Washington v. Texas (1967)
o Right to Speedy Trial, Klopfer v. North Carolina (1967)
o No Double Jeopardy, Benton v. Maryland (1968)
o Right to Counsel for Imprisonable Misdemeanors, Argersinger v. Hamlin (1972)
o Right to Notice of Accusation, Rabe v. Washington (1972)
Earlier editions of this book go back to at least 1939, the date of the copy in my high school library. In addition, West Law has published, as a supplement to _U.S. Code Annotated_ a thirty or so volume set dealing with the Constitution itself.
By the way, no Supreme Court decision has dealt with the Third Amendment, “No Soldier shall, in time of peace be quartered in any house, without the consent or the Owner, nor in time of war, but in a manner prescribed by law.” If this Amendment were given an interpretation no less expansive as has been given other Amendments, clearly it would be applied to the War on Drugs and the War on Poverty, both of which involve putting the soldiers of these wars into the homes of the people.
#3 by Trager Smith on 07/26/2005 - 9:22 am
Catherine, how did Jesus enter the picture? The Founding Fathers were generally deists. I don’t that any regarded Jesus as their personal saviour (from Hell). Franklin Steiner, in his book, The Religious Beliefs of Our Presidents, categorized Benjamin Harrison as the first president who was unquestionably a communicant in an orthodox church at the time he was elected.
#4 by H.S. on 07/26/2005 - 12:29 pm
The “generally deists” myth was debunked long ago by several studies of their many writings and personal correspondences. References are available on Google and Yahoo.
#5 by Trager Smith on 07/30/2005 - 11:15 am
Try this: http://en.wikipedia.org/wiki/List_of_U.S._Presidential_religious_affiliations
Note this: “Franklin Steiner, in his book The Religious Beliefs Of Our Presidents, categorized Harrison as the first President who was unquestionably a communicant in an orthodox Church at the time he was elected. And then: Franklin Steiner: The Religious Beliefs Of Our Presidents
http://www.buffaloatheists.com/articles/group1/religious%20beliefs%20of%20presidents.htm
You’ll find that, while several early Presidents were nominal Episcopalians (remember that that was the established church of Virginia until Mr. Jefferson got it repealed), very few accepted Jesus as their personal saviour (from Hell).
John Jay comes closest: http://www.geocities.com/peterroberts.geo/Relig-Politics/JJay.html says ” Religious Affiliation: Episcopalian
Summary of Religious Views:
Jay came from a Huguenot family, but ultimately adopted Episcopalianism. He seems to have been a believing Christian throughout his life, and took great pains to avoid discussing religion with those who did not agree with him. Like many others of his era, Jay harbored anti-Catholic feelings.
Views on Religion & Politics:
During the drafting of the New York constitution and bill of rights, Jay proposed several amendments to the religious tolerance clause, restricting the rights of Catholics unless they swore allegiance to the state superceding any allegiance to their Church or Pope. These amendments were defeated