A speech presented 9/17/17 at The Called Church, Chesapeake, VA, on the occasion of Staying True to America’s National Destiny’s (STAND) Constitutional Day Program, by Gary Porter, Executive Director of the Constitution Leadership Initiative, Inc.In May, 1776, roughly 41.7 miles from here as the crow flies, some fine gentlemen gathered in Williamsburg to draft a new Constitution for the colony of Virginia, soon to become the state of Virginia. Before designing a new government for themselves, and by doing so declaring their independence from Great Britain, the men decided that any new plan of government must be preceded by a declaration of the rights which that government should secure.
Section 15 of what became known as the Virginia Declaration of Rights, drafted by George Mason of Fairfax County, with some help from James Madison, of Orange County, reads:
No free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.
“Frequent recurrence to fundamental principles.” No free government can be preserved—the blessings of liberty cannot be preserved—without frequently reviewing the principles upon which that government was built.
Today we meet, as a free people, in what remains the freest country on the earth, although that distinction is becoming less certain, to do just that: review the principles upon which our form of government was and is built. If we lose sight of those principles, say the Founders, freedom itself will be imperiled.
Perhaps more than any other country, America was built upon principles. Many of these can be found embedded in the Constitution, as you’ll see, and many others, such as the equality of man, are embedded in the Declaration which preceded it. If you go to the web and search on the phrase “principles of the Constitution” you will find various lists, some contain four principles, some six, some seven. In the interest of time, I’ve settled on what I feel are the most important 47 … alright I’ll cut it to five.
Principle #1. Republicanism & Popular Sovereignty
Republicanism & Popular Sovereignty (with “republicanism” spelled with a small “r” to differentiate it from a similarly named party) are so closely related principles that I feel safe combining them. They lay at the heart of our Constitutional order. Republicanism is itself built upon the principle of popular sovereignty.
As Mr. Franklin confirmed, we were given a republic, not a democracy or a monarchy, but it is up to us to keep it.
The republican is the only form of government (wrote Jefferson) which is not eternally at open or secret war with the rights of mankind.
“Democracies” on the other hand, observed James Madison:
have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.
Our Constitution requires our national government to guarantee to each new state a republican form of government. It accomplishes this by having Congress examine the proposed Constitution of each territory applying for statehood, and ensuring it conforms to republican principles.
That popular sovereignty was itself a foundational principle was confirmed by the Virginia Ratification Convention, which wrote:
In his initial draft of the Bill of Rights Madison included a similar statement; Congress saw no need for it, it would have been like saying the sun rises in the East.
the powers granted under the Constitution, being derived from the people of the United States may be presumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will …
Government derives all its “just” powers, as Jefferson called them, from the consent of the governed. But this is not passive consent of the people; government does not receive legitimate power if we sit idly by and say or do nothing; it is through our active consent and our constitution-making that we delegate a portion of our sovereign power—power endowed to us by God—to our governments.
Principle #2. Limited, Enumerated Powers
That ours was to be a government of limited and enumerated powers was so widely understood at the time of ratification as to be a commonplace. Madison explained this principle in multiple ways at multiple times. If it had not been so, the Constitution would never have been ratified. It was the states’ reluctance to give up power to the Articles of Confederation Congress that fatally wounded that document. They reluctantly gave up a little more to form our present government, but the 10th Amendment confirms that the states and the people kept the rest.
If there is one Constitutional principle that has been most egregiously violated today it is this one. The idea of a limited and enumerated powers Constitution was cast aside in 1936 soon after FDR’s attempt to pack the high Court with six new Justices. Opinions such as U.S. v Butler and Helvering v. Davis gave Congress the power to spend money on anything that pertains to the general welfare, and the Court said Congress could define that term anyway they wished. Congress can now spend money on anything, whether or not it pertains to their enumerated powers. Madison warned that this interpretation would produce an unlimited government—and it has; “the federal government can do most anything in this country,” in the remarkable worlds of former Congressman Peter Stark of California.
This is one principle of which we need to constantly remind our elected officials at all levels. The Constitution created a government of limited and enumerated powers and we should expect them to work to restore that principle.
Principle #3. Federalism
Federalism simply means shared power, power shared both horizontally and vertically. Power is shared vertically between local, state, and national governments, with each having its own assigned powers, as well as some concurrent powers. Power is shared horizontally within a government by the various branches of that government. The Constitution envisioned that power, once delegated, would remain fairly constant unless and until the Constitution was amended to provide some branch with new powers.
They didn’t count on the craftiness of the Courts, which through various opinions have effectively re-written the laws and given various branches of the national government new powers never before envisioned; the power to redefine a millennia-old institution called marriage, being one.
Principle #4. Separation of Powers
The Constitution, Hamilton told the New York Ratifying Convention, gave the new government: “a perfect proportion and balance to its parts.”
The Framers learned the idea of separated powers from “the celebrated Montesquieu,” the most quoted political philosopher at the Convention of 1787. But Baron Montesquieu learned the necessity of separating governmental powers from observing man. He wrote in Spirit of Laws:
Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.
But Madison warned us in Federalist 48:
[A] mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands. … The essence of Government is power (he added, paraphrasing Montesquieu) and power, lodged as it must be in human hands, will ever be liable to abuse.
These men knew their Bibles as well as they knew Montesquieu:
The heart is deceitful above all things, and desperately wicked: who can know it? wrote Jeremiah.
“Good fences make good neighbors,” replied Robert Frost, and the same goes for branches of government. George Mason simply put it this way in the Virginia Declaration of Rights:
The legislative and executive powers of the state should be separate and distinct from the judiciary.
That’s why we should be greatly alarmed when the judiciary effectively re-writes statute law, as the high court has done on numerous occasions, and as it did not so long ago when it declared the Obamacare mandate to be a tax. The government had asserted the mandate was authorized by the Commerce Clause; the Court said that argument was ridiculous; if we treat it as a tax, that would be allowed. And so it became. But in so doing the Supreme Court took on the role of a legislature. Because they are appointed, the Justices have no accountability to the people; they are not our representatives. Only elected representatives can pass laws.
Principle #5. Checks & Balances
Even though each branch of government is given its own unique and separate powers, Madison knew there had to be built within the plan a certain tension. We call it today, checks and balances.
Congress drafts and passes the laws, but the President can veto them, but the Congress can then override the President’s veto. The Supreme Court interprets the Constitution; but Congress can limit the court’s appellate jurisdiction; they can propose constitutional amendments that reverse the Court’s decisions, as they did in the 11th Amendment; and can impeach rogue judges. The President can appoint judges and ambassadors, but the Senate must confirm them. The President can negotiate treaties, but the Senate must ratify them. The President can try to become a King, but the Congress can impeach him. There are other examples, of course.
We often complain about the inability of the national government to “get things done;” they often seem stalemated. There is absolutely nothing wrong with this, “do not adjust your television set,” as the old saying goes.
The passions of one group are merely being balanced by those of another. Our nation is deeply divided along party lines, perhaps more so than at any time since the un-Civil War, and the Congress simply reflects that division. Madison and the other Framers wanted to ensure that a simple majority could not usurp the rights of the minority and that one branch could not overwhelm the powers of the others. They pursued this goal through checks and balances.
I hate to paint such a bleak picture of our constitutional order today, but the ugly truth is that we have neglected our fundamental principles. We have failed to understand them and we have failed to hold our government accountable to them.In a letter he wrote in 1820, six years before he would die on the 50th Anniversary of the Declaration of Independence, Thomas Jefferson said this:
I regret that I am now to die in the belief, that the useless sacrifice of themselves by the generation of 1776, to acquire self-government and happiness to their country, is to be thrown away by the unwise and unworthy passions of their sons, and that my only consolation is to be, that I live not to weep over it.
Even then, nearly two hundred years ago, Jefferson could see that we were beginning to depart from fundamental principles.
We risk today throwing away our wonderful inheritance. The “unwise and unworthy passions” of we sons and daughters place this great experiment at risk.
I will leave you with two quotations from favorite Founders, one a Founding Father, the other a Founding Mother; yes, there were some of those.
Mercy Otis Warren, daughter of the great patriot James Otis, who John Adams said “lit the spark of independence,” wrote, quote:
It is necessary for every American, with becoming energy to endeavor to stop the dissemination of principles evidently destructive of the cause for which they have bled. It must be the combined virtue of the rulers and of the people to do this, and to rescue and save their civil and religious rights from the outstretched arm of tyranny, which may appear under any mode or form of government.
We should be alert to those who would teach our children principles evidently destructive of freedom and liberty, and stop them from doing so—with, and Warren puts it, “becoming energy.”
In addressing a grand jury in late 1777, future first Chief Justice of the Supreme Court, John Jay, said:
Every member of the State ought diligently to read and to study the constitution of his country and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.
This is a charge to each of us. A rising generation is coming after us, and, hopefully, one will come after them.
I commend you for taking time this afternoon from your busy schedules to do just what John Jay urged: both read and study your Constitution.
The Annenberg Public Policy Center five days ago released their annual survey of Constitutional knowledge. They found that an astonishing 37% of Americans could not name any of the five freedoms found in the First Amendment; 33% could not name the three branches of the national government. Happily, you will not be among that number by the end of this day.
The success of the American experiment in self-government is in our hands, not some undefined “them” or “they;” and it does not rest merely in the hands of those we send to the Chesapeake City Council, to Richmond, or to Washington, rather it rests with us: we the people.
Thank you for your kind attention and the opportunity to help us all with this “recurrence to fundamental principles.”