This essay continues a series exploring briefly why the Constitution is ineffective at restraining federal officials today, and illustrates how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively responding to federal overreach. The series will conclude by highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints; issue-based legislative accountability, and a convention of states to amend the US Constitution.

The Constitution and the Permissive Public

In the Federalist Papers, Alexander Hamilton made the rather unremarkable observation that “…nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society.”[1] For an example, he drew from antiquity the case of Sparta’s highly decorated admiral, Lysander, in the Peloponnesian War. Term limits in Sparta required that Lysander resign as admiral at the end of his one year term of office and that no person could hold the office of admiral a second time. Yet when Sparta suffered a naval defeat, Lysander was soon called upon to lead the Spartan Navy once more in battle. Hamilton noted “how unequal parchment provisions are to a struggle with public necessity.” To paraphrase; it isn’t a fair fight. When constitutional limitations are paired against public necessity in the boxing ring, it’s like trying to take on an opponent whose weight class is three classes higher than yours. Sure, you may get a few punches in. You may even secure a few concessions from your opponent in the process. But in the end, constitutional limitations will inevitably succumb to perceptions of public necessity.

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The three branches of the United States government are the Executive, Legislative and Judicial. The U. S. Constitution lays out the power and authority of each of these separate branches. It is important to note that the powers given to each branch are unique and separate and do not overlap or invade the authority of the other two.

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In an article by Connor Wolf called This Is The Difference Between TPP And TPA (Hint: They Are Not The Same Thing), he explains that these two bills are linked together because Trade Promotion Authority (TPA) is a means to fast track passage of the Trans-Pacific Partnership (TPP).  I am confused by this line of reasoning because as a stand-alone bill, TPA is intended to provide transparency to all trade negotiations by soliciting public and congressional input throughout the process, however, TPP as a stand -alone bill, is behemoth and most of the information to which the public has access has been leaked.  Furthermore, it was negotiated behind closed doors.  According to the verbiage of TPA, if TPP is not negotiated using TPA guidelines, the fast track option is negated. So why do news outlets and a wide range of legislators portray these two bills disingenuously? Bundling the TPA and TPP as one idea called Obamatrade is no different than bundling immigration reform and border security, which are two separate issues.  One is about drug cartels and terrorism and the other is about how we manage people who want to immigrate to the United States.

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In communities across America, parents and students are increasingly opting out of onerous standardized tests being pushed by the Department of Education. These assessments, which are directly related to both Common Core and No Child Left Behind, often put young children in high-pressure testing situations for hours on end. In fact, the length of some of these tests is comparable to state bar examinations for aspiring attorneys. And to boot, educational experts are increasingly finding that these tests have little, if any, educational value for children.  The context behind this nationwide opt out movement, and the Department of Education’s response, is a prime example of Executive overreach at work in a very intimate part of American family life.

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On December 7, 1941, Japan bombed Pearl Harbor and killed 2,500 American servicemen.  Japan’s ally, Germany, followed up the attack by declaring war on the United States.  Just after noon on the following day President Franklin D. Roosevelt addressed the shocked members of Congress and told them that the sneak attack was a “date which will live in infamy.”  The Congress declared war on Japan by an 82-0 vote in the Senate and nearly unanimous vote of 388-1 in the House.  When Japan’s allies, Germany and Italy, declared war on the United States, Congress responded in kind on December 10.  World War II became the last war in which the United States declared war against a foe.

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Expanding Presidential power usually erodes democracy, expands government, and facilitates the rise of an increasingly unaccountable “Imperial Presidency”.  Ironically, giving Presidents more power to control spending does just the opposite.

The struggle over government spending has been a fundamental point of contention since the earliest days of our Federal Government.  In the last twenty years, this issue has split the Democrats in Congress, frustrated Republican and Democratic Presidents, and generated numerous Supreme Court cases.  The 1974 effort to resolve the matter, once and for all, substantively contributed to the current explosion in federal spending.

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Guest Essayist: George Landrith, President, Frontiers of Freedom

Today, much of the national political debate centers on the size and scope of the federal government. Whether the discussion is focused on federal spending, the debt, or the merits and demerits of a nationalized healthcare system, at its core, the debate is about how much power the federal government should properly wield. Read more

Guest Essayist: Nathaniel Stewart, Attorney

Proposed Amendment: D.C. Statehood Amendment:

District of Columbia Statehood Proposal:


Section 1. For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State.


Section 2. The exercise of the rights and powers conferred under this article shall be by the people of the District constituting the seat of government, and as shall be provided by the Congress.


Section 3. The twenty-third article of amendment to the Constitution of the United States is hereby repealed.


Section 4. This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

The nation’s capital city, Washington, DC, is a federal city, and it constitutes “the seat of Government of the United States.”[1] After great debate and deliberation over the location for the nation’s capital, the Founding generation settled upon a compromise in 1791.  Congress first raised the subject of a permanent capital for the government of the United States in 1783, and it was ultimately addressed in Article I, Section 8 of the Constitution (1787), which gave the Congress legislative authority over “such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States. …”  In 1788, Maryland gave to Congress “any district in this State, not exceeding ten miles square,” and in 1789 the state of Virginia ceded an equivalent amount of land.  In accordance with the “Residence Act” passed by Congress in 1790, President Washington in 1791 personally selected the diamond-shaped area along the shores of the Potomac River that is now the District of Columbia.

The Founders well-understood that the District of Columbia was under the control and jurisdiction of Congress itself, and the city was not itself a state, nor did it sit within the boundaries of any existing state.  This helped to ensure the federal government’s independence from state politics or inter-state quarrels that might develop and hinder federal action.  As a federal district, however, the capital did not have an elected local governor, nor did city residents have the right vote in national elections.

Nearly 200 years later, in 1961, the 23rd Amendment to the Constitution granted District residents the right to vote in Presidential elections, and it gave the District the number of electors in the electoral-college that it would have if it were a state.  The amendment did go so far as to provide the District with its own Senators or members of Congress, but the District has since gained a non-voting delegate in the House of Representatives.

A decade later, the left-wing political activist Julius Hobson formed the D.C. Statehood Green Party, which began campaigning for statehood for the District.  The movement for statehood, helped by Democratic Senator Ted Kennedy, was instrumental in Congress passing the District of Columbia Home Rule Act in 1973, granting the city an elected mayor and city council.

The movement pressed on, seeking full statehood for the District, and in 1978 Congress passed the District of Columbia Voting Rights Amendment.  The amendment was then sent it to the states for ratification.  The new amendment would have repealed the 23rd Amendment and given the District four electors (instead of three), as well as voting members in the Senate and House of Representatives.  The proposed amendment met with stiff opposition from the states who feared that granting the District voting members in Congress would dilute their own representation.  According to its terms, the proposed amendment would be “inoperative” if it was not ratified within seven years of the date it was submitted for ratification.  The deadline for ratification was August 22, 1985, and only sixteen of the fifty states had ratified the proposal before the time limit had expired, well-short of the thirty-eight needed for ratification.

In 1980, DC residents passed the District of Columbia Statehood Constitutional Convention of 1979, calling for a constitutional convention for a new state. Two years later, voters ratified the constitution for “New Columbia,” the proposed 51st state in the Union, but the campaign for statehood stalled after the proposed DC Voting Rights Amendment failed in 1985.  Since then, statehood advocates have periodically proposed legislation to enact the “New Columbia” state constitution, but it has never been passed by Congress, and the last serious congressional debate on the issue took place in November 1993, when D.C. a statehood proposal was defeated in the House of Representatives by a vote of 277 to 153.  Much of the momentum has since dissipated from the statehood campaign, and it is unlikely to be revisited by Congress or ratified by the several states anytime soon.

[1] U.S. Const. Amendment 23.

Nathaniel Stewart is an attorney in Washington, D.C.

June 21, 2012 

Essay #89 

Guest Essayist: Brion McClanahan Ph.D., author of The Founding Fathers Guide to the Constitution

Amendment X:

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.

Modern Issues Of States’ Rights
Ninety percent, if not more, of what the central government does today is unconstitutional. All of the following legislation violates the Tenth Amendment: national healthcare, welfare, all federal education programs, federal highway construction and funding, the National Defense Authorization Act, gun control, the Federal Reserve System, etc., and these are just some of the large issues. An itemized list based on a modern federal budget would be too substantial to publish in a book length project, let alone a short essay. Proponents of the Tenth Amendment in the founding generation viewed it as a necessary check on the power of the general government and in particular the famous “sweeping” or “elastic” clauses of the Constitution, i.e., the “general welfare clause,” the “supremacy clause,” the “necessary and proper clause,” and now the infamous “commerce clause.” The Tenth Amendment was designed to keep domestic issues under the purview of the States and leave matters of commerce (meaning interstate and international trade) and defense in the hands of the general authority. In essence, every time the central government abuses its Constitutional authority it is violating the Tenth Amendment. But for the sake of argument, the most important and egregious violations of the Tenth Amendment today are as follows:

“Obamacare”: Regardless of what the Supreme Court decides in June, the “Affordable Care Act” is a gross violation of the Tenth Amendment to the Constitution. In fact, the States would do well to individually strike it down by invoking the Tenth Amendment, as Thomas Jefferson and James Madison did with the Virginia and Kentucky Resolutions of 1798 in response to the blatantly unconstitutional Sedition Act. As per Article 1, Section 8, regulating healthcare is not one of the delegated powers of the general government, and the commerce clause does not apply in this case because the general government cannot regulate the commercial exchange of individuals nor can it mandate that individuals engage in a commercial activity. Proponents of the Constitution continually argued in 1787 and 1788 that if the Constitution was mute on an issue, then the general government did not have the said power. The States, however, can, and thus if the States want to address healthcare, and the respective State constitution allows it, they are free to do so.

The National Defense Authorization Act for 2012: While this piece of legislation has support among Republicans, it unconstitutionally enlarges the powers of the executive branch and has the potential to place all American citizens under martial law, thus unconstitutionally suspending the civil court system in the United States. The general government cannot constitutionally interfere with the State judicial systems nor can it constitutionally give the executive branch the power to suspend habeas corpus. Those are not delegated powers in the Constitution and thus violate the Tenth Amendment. Abraham Lincoln unilaterally suspended habeas corpus in 1861 and while Attorney General Edward Bates supported it and the Congress retroactively “authorized” it, he was heavily criticized at the time. The Supreme Court even struck down his heavy handed tactics and later negated congressional attempts to supersede State courts with military tribunals during the Reconstruction era. Congress has forgotten or neglected to remember those decisions.

The Federal Reserve: The FED is at the heart of the current economic meltdown, and central banking has long been a contentious issue in American politics. During the Philadelphia Convention in 1787, the Pennsylvania delegation suggested giving the power for chartering a bank to the Congress but were soundly defeated. No matter. In 1791, Alexander Hamilton made a central bank “constitutional” by stretching the “necessary and proper clause” of the Constitution, something he said would never happen when arguing for ratification in the Federalist essays. The Bank of the United States failed re-charter in 1811 but was replaced with another in 1816, with James Madison’s support. His reason was dubious. Time and circumstances, he said, had made the Bank constitutional. Central banking supporters never looked back. Of course, Andrew Jackson destroyed this Second Bank of the United States, but the legislative precedent had been set. When the “Creature of Jekyll Island,” also known as the Federal Reserve System, appeared in 1913, thanks to Hamilton, Madison, and John Marshall who ruled the Bank was constitutional in the infamous 1819 McCulloch v. Maryland decision, no one questioned its constitutionality. But, if Americans followed the Constitution as ratified and amended by the Tenth Amendment, the Federal Reserve would fail the constitutional sniff test. Chartering a bank or a central banking system is not a delegated power of the general government.

All Social Welfare Legislation Including Education and Entitlement Spending: In the 1942 Supreme Court decision Wickard v. Filburn, the Court found that anything that might be considered “interstate commerce” fell under the authority of federal regulation, including economic activity such as growing your own food on your own land. In essence, the “commerce clause” has become the “Hey, you-can-do-whatever-you-feel-like Clause,” as federal judge Alex Kozinski pointed out in 2005. All federal social welfare spending falls either under the so called “commerce clause” or the “general welfare clause,” and according to the founding generation both were restricted by the Tenth Amendment. None of this legislation can be found in the enumerated powers of Article 1, Section 8 unless they are “stretched,” something opponents of the Constitution feared would happen. That was the driving force behind a “States’ Rights” amendment in the Bill of Rights to begin with. If the States had a backbone (and were not slopping at the federal trough) they would interpose their control over such issues, invoke the Tenth Amendment, and strike them from the books.

In 1788, Tench Coxe of Pennsylvania, an ardent supporter of the Constitution and member of the Continental Congress, wrote that,

[The general government] cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns or boroughs; creating new state offices, building light houses, public wharves, county [jails], markets, or other public buildings…nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive, or judicial, civil or ecclesiastical.

And later he said, “In short besides the particulars enumerated, every thing of a domestic nature must or can be done by them [the States].” Translation, the general government in Washington D.C. cannot constitutionally do most of what it does today. To proponents of a Bill of Rights, the Tenth Amendment was there to legally ensure Coxe was correct. The Tenth Amendment is more than a protection of “States’ Rights,” it is a check on a tyrannical and unconstitutional abuse of authority by the central government.

Brion McClanahan holds a Ph.D. in American History from the University of South Carolina. He is the author of The Founding Fathers Guide to the Constitution (Regnery History, 2012), The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009), and Forgotten Conservatives in American History (forthcoming with Clyde Wilson, Pelican, 2012).

April 16, 2012 

Essay #41 

Guest Essayist: Andrew Dykstal, a Junior at Hillsdale College

Amendment III

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

The Third Amendment seldom enjoys press or study; one high school-level text dismisses it with a single sentence to the effect of “This amendment has been unimportant since its adoption.” Nevertheless, the Third Amendment offers valuable insight into the Constitution’s intended restraints on standing armies and the relationship between civil and military authorities. The Third Amendment directly protects the property and freedom of individual citizens, but it also imposes an additional limit on the power of the executive to maintain military power without the consent of the legislature.

The surface-level meaning of the Third Amendment is quite straightforward: In peacetime, the federal government cannot use any residence to house soldiers without the consent of the owner. Only in wartime–a condition that only Congress can declare–can soldiers be housed in private residences. Even in this case, Congress must provide for this mediation of property rights by an act of law distinct from a declaration of war. In the only significant court case (Engblom v. Carey, 1982) involving the Third Amendment, the Second Circuit Court of Appeals held that the concept of “soldier” can be broadly construed to include National Guardsmen. More significantly, the court held that “house” includes dwellings not owned by the inhabitant, such as apartments and rented rooms. The Third Amendment therefore constitutes a broad protection of the citizenry against legislative power in peacetime and the executive at any time.

In contemporary times, this protection may seem unnecessary or redundant with, say, the Fourth Amendment. But when the Bill of Rights was drafted, memories of royal abuse were still fresh in American minds, and the question of abusive military was a subject of intense debate between the Federalists–the people who supported the ratification of the Constitution–and the Antifederalists–the people who opposed it. The Third Amendment addresses on of the Antifederalists’ historically-grounded concerns. The Declaration of Independence reads, in part, “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. He has affected to render the Military independent of and superior to the Civil power….For Quartering large bodies of armed troops among us…” This indictment of King George III bridges two separate but equally significant issues. First was the traditional, specific aversion to the quartering of troops in private homes. Parliament passed a series of Quartering Acts beginning in 1765, directly contravening the 1689 English Bill of Rights. These acts called into question the Americans’ rights as Englishmen and subjected them to treatment unconscionable for citizens of the Empire. More pragmatically, the conduct of British troops, stationed far from home in what was often considered a colonial backwater, was often reprehensible, and crimes against colonists increased in frequency and severity as political tension grew. The colonists experienced a direct, vivid reminder of why the quartering of soldiers in homes had been explicitly forbidden under British law for decades.

The second issue at the heart of this indictment of King George III (and at the heart of the Third Amendment) is substantially more interesting from a contemporary perspective. The very existence of a standing army in the colonies was generally taken as offensive, and this sentiment influenced the development of the Constitution. The Third Amendment renders significantly more difficult the maintenance of “in times of peace, Standing Armies without the Consent of our Legislatures.” Specifically, the Third Amendment checks executive and military power by increasing the cost of maintaining a standing army. In Federalist 26, Alexander Hamilton describes the way in which regular funding renewal forces the legislature to continuously revisit the question of a standing army. Under Article One, Section 8, the executive is reliant on legislative approval to fund the military, and the Third Amendment helps to prevent an end run around these measures; the federal government must make appropriations via Congress to support the military. The military cannot support itself directly from the people unwilling hospitality. With the memory of the threat a standing army can pose to liberty in mind, the Constitution’s framers put in place both primary and incidental restrictions on the nature of executive and military power.

The specific protection afforded by the Third Amendment has not, thankfully, seen as much use as those afforded elsewhere in the Bill of Rights, but the ideas and intent behind this amendment can still educate us about our nation’s history and inform our current policies. The Third Amendment speaks to the grave responsibility in the hands of the legislature as long as the United States maintains a powerful military in war and peacetime alike, and it speaks to the care necessary in the exercise even of necessary power.

March 8, 2012

Essay #14

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment X

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 last amendment in the Bill of Rights, the 10th, is an apt bookend for the 1st.  In fact, taken together with the 9th Amendment, it can be said that the entire vision the founders had for the United States can be found in these two amendments.

The Founders were inherently skeptical of concentrated government power—it is why we were initially conceived as a loose confederacy of sovereign states.  When that ultimately collapsed, the Founders looked towards federalism, a political system in which power is diffused among various branches and levels of government.  As the Supreme Court said only 20 years ago, “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”[1]

What was envisioned was a system of “dual sovereigns,” separate, but  (at least as conceived) co-equal systems of government, a system in which the federal government had carefully enumerated powers, the states had carefully enumerated powers, and that which had not been delegated would be retained by the people.  In other words, power flows from the people to the government, and as the High Court said 70 years ago:  “The amendment states but a truism that all is retained which has not been surrendered.”[2]

Abuse of the Commerce Clause led to a near-ignoring of the 10th Amendment by federal authorities for decades.  It was only in the 1990s that there began a resurgence of these principles, as the High Court finally began to recognize that the Founder’s vision of the nation had become rather twisted.  They began to restate that vision, and the reason why, re-affirming that efforts to grow federal power should only be undertaken with great deliberation.  In one of the most poetic Supreme Court passages ever written, Justice Sandra Day O’Connor wrote:

[T]he Constitution protects us from our own best intentions: it divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.[3]

How often have we seen federal power enlarged, or attempts made to grow federal power, for just those reasons?

Many of the cases brought to the Supreme Court in the 1990s and beyond have centered on the problem of Congress essentially compelling the states to act in a particular manner—or forcing those states to act as agents of the federal government.  There are a number of problems with this, from a basic “good government” perspective—not the very least being it forces those states to spend money on federal priorities, rather than their own.  Moreover, it removes policy prioritization an additional level away from an impacted population.

Again, as the High Court said in New York v. United States:

States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government’s most detailed organizational chart. The Constitution instead “leaves to the several States a residuary and inviolable sovereignty,” The Federalist No. 39, p. 246 (C. Rossiter ed. 1961), reserved explicitly to the States by the Tenth Amendment.[4]

Since the 1990s, there has been a line of cases in which these principles have been reasserted by the High Court.  In 1995, the Supreme Court finally found a limit to the Commerce Clause by striking down the Gun-Free School Zones act in United States v. Lopez. Two years later, in Printz v. United States, the Court struck down portions of the “Brady Bill”.  The court has repeatedly stated now that regardless of how well-intentioned a federal law might be, Congress cannot ignore the Constitution’s precepts on limiting federal power and not forcing a state to substitute federal priorities for its own.  The federal government can encourage, it can even “bribe” with federal funds, but it cannot out-and-out compel a state to act in an area in which the states hold their own sovereign power.

In New York v. United States, Justice O’Connor called the 10th a “tautology”, a restatement of what is obviously true.  But given the erosion of the 10th Amendment over the course of the republic’s history, and the even greater erosion of constitutional knowledge, this so-called tautology needs to be restated.  When discussing the principles undergirding our founding, regardless of the audience, it is helpful to reiterate the following, as underscored by the 10th Amendment:  government does not have rights.  People have rights.  Government has powers—powers that we have narrowly and carefully ceded to it by limiting some measure of our rights.  All that we have not surrendered, we have retained, and we must defend those rights earnestly and vigorously.

[1] New York v. United States, Coleman v Thompson, etc

[2] United States v. Darby, 312 US 100, 124 (1941)

[3] New York v. United States, 505 US 144 (1992)

[4] Ibid.


Andrew Langer is President of the Institute for Liberty


Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

Article 1, Section 9, Clause 8

8:  No Title of Nobility shall be granted by the United States:  And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Following Section 8, in which the powers of Congress are enumerated, Section 9 enumerates the restrictions that the Constitution places on Congress. The final clause of Section 9 states that Congress cannot grant titles of nobility nor anyone holding any state or federal office can accept a title from a foreign state unless first approved by Congress.

The first part of Clause 8 is perhaps the most cited and directly applicable to contemporary concerns. Think of all the czars who have been appointed recently by the President. It can be argued that being a czar is not noble, nor is the title one of British nobility, but that would construe the term and the intent far too narrowly. The Founders did not want an aristocratic ruling class who were insulated from the public. That seems to be the very definition of the recently appointed czars who usually have close personal ties with the appointing President or one of his officials. Furthermore, theses czars are insulated from the influence of the public and congressional oversight.

This is the obvious interpretation of the Clause. What usually goes unnoticed is the second part.

The first thing that strikes me when reading this Clause is the phrase “no Person holding any Office of Profit or Trust under them,” specifically the use of the term “them”. It is uncommon for most of us to use the pronoun “them” instead of “it” when referring to the United States. Reading this sentence in conjunction with the Preamble, we can better understand what the Founders meant when they wrote, “We the People, of the United States of America.” If their view held consistent between the Preamble and Article I, which it surely did, then We the People would seem to mean the people of the states rather than a single national people. This is more than just a pedantic discussion of constitutional interpretation however, but instead one more instance of how a close reading of the Constitution can provide solutions to contemporary political debates.

Here is how.

The national government overshadows our states which is partially due to, or has at least led to, our viewing the United States as a singular rather than a plural. In viewing the United States as a plural we can understand it as a compact between the states, and their citizens, rather than between the people of a national, single United States. This understanding is quite consistent with the view expressed by Madison and Jefferson in the Virginia and Kentucky Resolutions respectively. If we were to adopt this reading of the American Constitutional tradition, and its implications as articulated by Madison and Jefferson, we would have a more decentralized regime, and the national government would be more limited as a result. If national action required the consent of the states, and the people of the states as citizens of their respective states rather than national citizens, there would be a more significant check on the national government’s ability to push through controversial legislation or for the growing bureaucracy to implement plans inconsistent with the will of the people. If we had maintained this view of the Constitution, chances are the recent health care reform would have been blocked, or at least restricted to only those states that supported the reform. It would also be unlikely that federal agencies like the EPA would be able to force states to abide by their administrative rules without the consent of the states.

The common thread that runs through the first and second parts of Clause 8 is an aspiration towards limited government, which then makes this Clause thematically consistent with all of Section 9 as it is here that the limitations on Congress are enumerated.

It is no surprise to anyone that the Founders wanted limited government, but it is important to understand why and how they went about trying to achieve it. And while it is easy to cite specific sections and clauses to this effect, it is more important to explain what those citations mean. The Constitution demands a reading that searches for a political theory for it is only then that we can formulate a coherent argument about what the Founders would have to say about contemporary matters.

Kyle Scott is a lecturer in the Department of Political Science and Honors College at the University of Houston. His third book, Federalism, is due out March 17th. Dr. Scott has written on the Federalist Papers for Constituting America and proudly serves as a member of its Constitutional Advisory Board. He can be reached at Or, you can follow his blog at

Guest Essayist: David Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.

The Preamble to the United States Constitution

We the People  of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Preamble to the Constitution was added at the last minute by the Constitutional Convention, roundly criticized upon its announcement, and even today lacks any legal standing.  So what does it mean, and why does it matter?

“We the People” was a powerful and even revolutionary way to announce the Americans’ new form of government, for encapsulated in these three opening words was the argument for a new regime that is in keeping with the principles advanced in the Declaration of 1776, and defended in the War for Independence.

Whereas the previous compact of the United States, the Articles of Confederation, had been a “firm league of friendship” joined by states, the new Constitution was formed by the people as a whole.  The national government was sovereign, not the states.  To Anti-Federalists, the Constitution went awry from the outset, for in its first phrase, they held, it announced a form of government that would eliminate the power of the states and thereby destroy the liberties of the people.  Nothing could be further from the truth, Federalists responded correctly, for unless the nation wished to continue in abject weakness, it needed to empower the national government to do what the states could not, thus ensuring that the liberties of the people would be secure.

Owing to the fluid style and incisive intellect of Pennsylvanian Gouverneur Morris, who despite being the most loquacious of the delegates to the Constitutional Convention was also among the most profound, the Preamble was his parting gift to the nation, drafted as he did the final edits to the document as a whole.  Remedying the weaknesses of the Articles, the new Constitution would accomplish all of ends stated in its Preamble.  Morris gave those ends concise expression, and despite his clarity, they were misunderstood in his day, and often, for very different reasons, continue to be misunderstood in ours.  Take, for example, two of the six ends, or goals, adduced in the Preamble:  the first, which is “to form a more perfect Union,” and the fifth, to “promote the general Welfare.”

To some Anti-Federalists, the phrase “to form a more perfect Union” was taken to entail a process of perfection whereby the states would be gradually crowded out, and more and more power would be given to the central government, so that when the evolution was complete all three main functions—legislative, executive, and judicial—would be held by one consolidated power.  Such would not only be a violation of the Constitution’s set-up, it would also trammel everything the Declaration had stated against the King’s own arrogation of authority.  Publius and many other Federalists had a ready response for this erroneous reading.

There are many who today take the phrase, “to form a more perfect Union,” to mean that the steady march of Progress must carry us closer and closer to perfection.  Intent on leaving behind old, outdated ideas, and replacing them with a “new foundation” for our government, contemporary Progressives take the Preamble out of context in supposing it an endorsement of their agenda.

“To form a more perfect Union” meant nothing about the future, and everything about the past.  It meant, simply, that the Constitution would be an improvement upon the Articles of Confederation, which left much to be desired in its anemic, nearly non-existent central government.  The Constitution is the architecture of our equality and liberty not because of some supposed Progressivism in the Preamble, but rather because of its foundation in principles that are enduring.

While some Anti-Federalists wondered whether the fifth end, or purpose, of the Preamble, to “promote the general Welfare,” would, along with its recapitulation later in the first article of the Constitution, create too broad a grant of power, the overwhelming consensus at the time of the Founding was that the word “general” precluded the kind of projects that today we know as “pork.”  Today the Preamble’s “general Welfare” reference is occasionally cited in error as a constitutional grant of authority.  The Preamble can confer no such legal boon, and even if it could, the phrase “general Welfare” would allow very little, if any, of the legislative activity that the frequent misreading of the first clause of the Constitution’s Article I, Section 8, has permitted.  In other words, to “promote the general Welfare” must be understood within the limited government context in which it was written.

Limited government for the Founders did not mean weak government.  On the contrary, government had to be strong to secure the rights of the people.  This is obvious when three other ends not examined in detail here are considered.  To “establish Justice,” “insure domestic Tranquility,” and “provide for the common defence”:  How do each of these ends require strong government—stronger than provided under the Articles of Confederation?

The Constitution’s Preamble states six ends of government, the sixth of which is, to “secure the Blessings of Liberty to ourselves and our Posterity.”  It is this phrase, especially, that might remind us of the president of the Constitutional Convention, and the “Father of our Country,” George Washington, whose birthday should remind us how much we owe to him for the “blessings of liberty” that we so richly enjoy today.

David J. Bobb, Ph.D. is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C. Click on to read Dr. Bobb’s biography.


This entry was posted on Sunday, February 20th, 2011 at 11:18 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

46 Responses to “February 21, 2011 – Analyzing the Constitution for 90 Days – The Preamble to the United States Constitution – Guest Essayist: David Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.”

  1. Trevor says:

February 21, 2011 at 3:50 am

The Preamble was considered in the debate in the States prior to ratification. It is an integral part of The Constitution and thus must have legal standing. “We the People” is an important bridge from America’s founding document The Declaration of Independence, particularly the second paragraph, which lays out the hierarchy of authority and the rationale that “…Governments are instituted among Men, deriving their just powers from the consent of the governed”.

You state, “The national government was sovereign, not the states.” I disagree entirely. The Constitution grants dual sovereignty by establishing vertical checks and balances in the form of a Federal Republic where the national government is sovereign in those matters related to its delegated powers listed in Article I, Section 8 while the states are sovereign in all other areas. This was further affirmed in the Bill of Rights Preamble and the Ninth and Tenth Amendments.

I agree with your analysis of the “General Welfare” clause in the Preamble. This meaning is reconfirmed in Article I, Section 8 as I believe Madison further explained in the Federalist Papers.

  1. Lucy says:

February 21, 2011 at 8:13 am

I am so ever thankful that the Preamble was included , even if it was at the last minute. For me, personally, it sets a clear tone as to WHO the Constitution was a voice for.

As Dr. Bobb states: ““We the People” was a powerful and even revolutionary way to announce the Americans’ new form of government, for encapsulated in these three opening words was the argument for a new regime that is in keeping with the principles advanced in the Declaration of 1776, and defended in the War for Independence. ” It continued the theme that it was “WE THE PEOPLE”… not the King, Queen, or anyother ruling person.. but the PEOPLE. It is the People that want this gov’t and our responsibility.

Our founding fathers were brilliant.

  1. Roberta Castillo says:

February 21, 2011 at 8:48 am

First of all, I think your word “defence” in the preamble is spelled incorrectly. DEFENSE is better

  1. Susan says:

February 21, 2011 at 9:21 am

If by sovereignty it was meant that the Federal could contract in the name of the States as an entity rather than requiring separate ratifications I have no problems with the statement but if it means a superceding of sovereignth of the States I object.

  1. Shannon_Atlanta says:

February 21, 2011 at 9:34 am

I am interested in hearing other’s views on whether or not the Ant-Federalists were correct (in their interpretation of the future problem with the preamble) now that we have had 200 plus years to look back.

I have heard many times the argument that “promote the general Welfare” means to provide everything for everyone. I know that the Founder’s definition of Welfare was that which helped to keep the states together; however, that has been lost in the 20th and 21st centuries.

Another thing I find interesting is this: If one reads closely, he or she will have the answer spelled out clearly as to what the Founders meant.

They want to PROVIDE for the defence (that action takes a proactive, monetary avenue) yet only PROMOTE the general Welfare (ie, kinda like creating an atmosphere whereby the states can do their business without the federal government ‘providing’ anything of monetary value.) In today’s society to promote is kinda like doing PSA’s and having the president speaking out about the dangers of drunk driving, while ‘providing’ is actually funding.

  1. CAPT JACK says:

February 21, 2011 at 9:39 am

Liberty and the framers and founding fathers never knew how the people that live under these protections would defame and protest and denounce it.That the men and women that fought, bled, and died for the right of free speech and liberty would be so defamed and spat upon when they came home from 12,000 miles away from family and friend’s in Viet Nam.This government,and congress has become a joke.we need another George Washington NOW before we destroy ourselves and this country.In the words of Thomas Jefferson,(If the govt. is big enough to give you everything you need, it is big enough to take them away.)

  1. Brad says:

February 21, 2011 at 9:59 am

Janine and Cathy,
I am so grateful to you both for resuming the dialogue and blogs of last year. I enjoyed the Federalist Papers and now truly look forward to the Constitution. What you do for us as citizens of this great Republic is nothing short of true patriotism.
Let the reading begin !!!

  1. Vicki says:

February 21, 2011 at 10:13 am

Imagine encountering the Constitution without its preamble, never having heard of it, and knowing nothing about the United States of America.

It is still the same document, but the statement up front that provides the reader with context is missing.

  1. Donna Hardeman says:

February 21, 2011 at 10:50 am

Is Dr. Bobb going to come back at the end of the day and respond to some of the questions raised? I would like his answer to Trevor’s comment about vertical checks and balances. There is so much awareness recently of the abrogation of states’ rights and the federal government announcing its sovereignty in any area it so chooses. I actually think Dr. Bobb would agree with Trevor’s statement that federal government has sovereignty in the “biggies” listed in Article I, Section 8 but, Dr. Bobb, wouldn’t you agree that the states have sovereignty over everything else not specifically delegated to the federal government?

  1. Ralph T. Howarth, Jr. says:

February 21, 2011 at 11:09 am

For perspective, the 1st draft of August 6, 1787 was a preamble written as follows:

“We the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.”

Similar; but different. The preamble apparently was amended to reflect the more national intents; but that nationalization is limited to Art 1, Sec 8. It is that design that specifically makes a federal system, to which we do not constitutionally have a national government; but open license of federal government has formed a defacto national government that ignores the enumerated powers of Art 1, Sec 8. Case in point:

Records of the Federal Convention
Published Under Direction Of The United States Government
From The Original Manuscripts.
Reprinted 1895 Albert, Scott, Chicago, Page 725
Article 1, Section 8, Clause 7

[2:615; Madison, 14 Sept. 1787]

Doctor Franklin moved to add after the words “post roads” Article I Sect. 8. “a power to provide for cutting canals where deemed necessary”.

Mr Wilson seconded the motion.

Mr Sherman objected. The expense in such cases will fall on the United States, and the benefit accrue to the places where the canals may be cut.

Mr King thought the power unneccessary.

Mr King — The States will be prejudiced and divided into parties by it. In Philadelphia and New York, it will be referred to the establishment of a bank, which has been a subject of contention in those cities. In other places it will be referred to mercantile monopolies.

Mr. Wilson mentioned the importance of facilitating by canals the communication with the Western Settlements. As to Banks he did not think with Mr. King that the power in that point of view would excite the prejudices and parties apprehended. As to mercantile monopolies they are already included in the power to regulate trade.

Col: Mason was for limiting the power to the single case of Canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by Mr. Wilson.

The motion being so modified as to admit a distinct question specifying & limited to the case of canals.

New Hampshire — Massachusetts — Connecticut — New Jersey– Delaware –Maryland — North Carolina — South Carolina — no

Georgia — Pennsylvania — Virgina — aye [ Ayes–3; noes–8. ] The motion was not agreed to.

  1. arthur says:

February 21, 2011 at 11:31 am

We the people, the people of what? The citizens of the sovereign States, who sent representatives to the convention. To form a more perfect union, a union of what? The States, who sent representatives to the convention. To provide for the common defense and general welfare of what and who? The States and the citizens that lived within them. Dr Bobb states that the Articles of confederation was a compact, a“firm league of friendship” but forgets that the confederation also states “in perpetuity”. What was the weaknesses of the Articles? He doesn’t answer that question, I will, the one reason for the constitution convention was to agree on a way to force the States to pay it’s share of the debt accrued during the war of independence by the union. Who is Publius? An alias on essays to be published in news papers anonymously. They are not legal anything. The weight that they are given because they were printed in a volume titled the federalist papers is an illusion. If you want a better understanding of the constitution, read Madison’s notes on the convention taken down at the time. You can find them at the Avalon Project website. If the federal entity is sovereign then why doesn’t the representative from the District of Colombia have a vote? People certainly live there. I’m just getting started and I will post more to help in the understanding of our union of “nations” with constitutions written before the federal and which our federal constitution reflects.

  1. Susan says:

February 21, 2011 at 12:03 pm

arthur, the weakness was in the structure that demanded unanimity before any measure could go forward. This resulted in one state blocking almost all regulations on commerce. This state was Rhode Island. This caused paralysis of all.

  1. Ron Meier says:

February 21, 2011 at 12:07 pm

Janine & Cathy,

Thanks so much for continuing your program. I was concerned after finishing last year’s program on the Federalist Papers that Constituting America would die. I learned much about our founder’s intentions by the studies on the Federalist Papers, and have found it useful when crossing swords with people I know who pontificate on the Constitution’s meaning but who have not read the Constitution and FP or tried to understand their meaning. You’re doing a great service to our society. Blessings to both of you.

  1. Ralph T. Howarth, Jr. says:

February 21, 2011 at 12:36 pm

At the time of the writing of the Constitution, the word “welfare” had the meaning of “happiness” or “prosperity”. So it can be said, “to promote the general happiness/prosperity”. Many today come to associate that clause with the societal safety net of unemployment and disability welfare, which still would not be a “general welfare” but that of a particular welfare and not that of charity: charity is the conscientious and voluntary giving to a particular cause where welfare is operative from the mandated taxation to a general treasury.

In addition, the Preamble was revised in part because when the original draft’s Preamble named New York, it was New York, if I recall right, objected and abstained in participating in the 1787 ConCon. Since New York was not present, it precipitated either striking New York from the Preamble or another option such as a more collective term of United States.

I say the Anti-Federalist were right in their concerns of a runaway federal government. George Mason’s objections in September 7-15, 1787 included a statement:

“Under their own construction of the general clause, at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitue new crimes, inflict unusual and severe punishements [realize Mason is the father of the Bill of Rights that came up after], and extend their powers as far as they shall think proper; so that the State legislatures have no security for the powers now presumed to remain to them, or the people for their rights.

The government will set out a moderate aristocracy: it is at present impossible to forsee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the onr or the other.”

Mr. Gerry had likewise this to say also among other things: “…By the general power of the Legislature to make what laws they may please to call necessary and proper…”

And more can be illuminated of sentiments of dissent on the Constitution just within the 1787 ConCon, let alone the Anti-Federalist debates that followed during the ratification process into the 1790s. In terms of Mason’s forsight, we are presently in the moderate aristocracy stage vibrating between a defacto monarchy in the President that assumes legislative powers in extended Executive Orders and a tyrannical aristocracy in the Congress that presumes executive powers in regulatory oversight. One will upstage the other eventually if the course is not changed. At present we have the SCOTUS that passes judgement on state laws for powers not granted to the Congress to legislate upon; but with consensual validation of aggregation of jurisdication, has now put the rights of the people subject to the opinions of a few.

Oh, and DEFENCE is the spelling used in the original, not DEFENSE of our present English.

  1. Shannon_Atlanta says:

February 21, 2011 at 12:47 pm

Arthur, you said:”Who is Publius? An alias on essays to be published in news papers anonymously. They are not legal anything.”

True, the papers weren’t legally binding. However, they were a DEFENSE of the COTUS. In those papers we find WHY the framers thought the way they did. It is a good way to see why the COTUS came out the way it did.

True, Madison’s notes are a great insight; but the Constituting America site deals with the Federalist Papers, not Madison’s notes. Therefore, it may be better to discuss the narrow points made within them and the COTUS-or else we will get off on a tangent that will take away from why we are all here. Maybe you can start a blog that deals with Madison’s notes on the Convention?

  1. zac allen says:

February 21, 2011 at 2:24 pm

I may have been confuse on how it was written, but the States are the Sovereign, not the Federal Government, even with the Constitution. The Federal Government is merely an agent of the States. I one said earlier, the Preamble set the tone , and was not supposed to be used to supercede or define any of the articles that follow. Great stuff!!!! I like it!!!

  1. Rudolph Moreno Pena says:

February 21, 2011 at 2:25 pm

With respect to the question, “What does the Preamble to the United States Constitution mean to you?”.

Though in my late 50′s and a college drop out early on, my desire and capacity to seek knowledge and understanding has never been greater than in these times of witnessing the aggressive march of Liberal-Progressivism in America. I greatly appreciate the efforts and perseverance of Janine, Cathy & the Constituting Crew for bringing this important online study of America’s foundation to the general public. This is a good reliable source for understanding and motivation for advancing to other levels.

In my (humble) estimation, the Preamble was an obvious and much needed statement of intent aimed directly at the King of England with no room for doubt as to our resolve to be free of British rule. The boldness and timing of it seems that it could have been a last minute dare with defiance and determination. It is that kind of American resolve that makes me such a proud American of Hispanic ancestry. A mere and common blue collar citizen, though I have never been in the military, being yet in my late 50′s, well worn and still somewhat physically able, I would not hesitate to do and give whatever sacrifice is required to protect this country from enemies both foreign and domestic. To preserve America, I would give my all. To that end, if the intention of the Preamble could be painted in the expression of an American face, it would present nothing less than a countenance of stalwart love with a determined look of duty and honor, and service to country. This, while in stride with a faithful reliance on God.

For a solid parallel to the Preamble, I would encourage all to read General MacArthur’s May 12, 1962 West Point speech, “Duty, Honor, Country”. To me, it states the ironic beauty of American character and the selfless will of sacrifice. To me it absolutely defines the Preamble and the incredible courage that it took to express it.

God Bless “Constituting America

  1. zac allen says:

February 21, 2011 at 2:30 pm

Also…. As I consider myself a Jeffersonian Anti-Ferderalist, I must make note, that what the Anti-Federalist feared has come to fruition today… It is the dumbing down of our society that has allowed it to happen. Things like this can only help, if it will reach the right people.

  1. Trevor says:

February 21, 2011 at 3:26 pm

The Federalist Papers were important because they were intended to sell the States on the Constitution and show why the Anti-Federalist fears were unfounded. In other words, for the most part they confirm that even the Federalists (Madison, Hamilton, Jay, Washington et al) intended the national government to be limited to those powers enumerated in Article I, Section 8 and why the term “General Welfare” was not an open ended power.

  1. Gary says:

February 21, 2011 at 6:50 pm

To me, the preamble to the Constitution is a stirring introduction that sums up the intention of the founding fathers in what was to follow after in the articles. It sets the tone for what is spelled out in greater detail later. As such, I have always found the preamble to the Constitution to be inspiring and a wonderful reminder of what our federal government is supposed to be about. When comptemplated as a whole, and compared to what we find now in practice, it’s pretty obvious that over the last 230 years, the three branches of our federal government have grossly over-extended their powers. The preamble to the Constitution, in this matter then, is a rallying cry for those of us who believe that a limited form of government is not only what was intended by our founding fathers, but it is what we so sorely need again today.

  1. Luci says:

February 21, 2011 at 8:12 pm

Everyone seems in agreement that our three branches of government have gotten way out of hand from what they were supposed to be but most are forgetting that it is “we the people” who allowed it. We were so busy believing the “media” that formed our minds to accept “patient gradualism” that we little by little didn’t even notice the subtle changes they shoved at us – TV, movies, stories, articles, music, art, immorality,you name it – and so here we are – unable to even recognize the great Country and people we once were.
‘They” wanted to get us from A to Z but we’d rebel and so they took us from A to B to C and pretty soon we are at Z and we wonder how we got here. Well, now we know. We were asleep. God gave us Obama for a reason. He’s thrown us from A to Z in such a whirlwind that we finally said WHOA! And now, with God’s help, wide awake, WE WILL TAKE OUR COUNTRY BACK!

  1. Ralph T. Howarth, Jr. says:

February 21, 2011 at 8:51 pm

The Federalist Papers experience was last year’s project. This year is on the Constittuion itself. Constituting America is about all matters that concern the formation, proclamation, and ratification of the US Constitution as it was put into affect. As James Madison’s 1787 ConCon notes is our only window of a detailed account of what transpired in that secret meeting to change the operation of government, Madison’s information is very relevant to this year’ project on analysis of the U.S. Constitution rather than the Federalist Papers to promote ratification of the U.S. Constitution as the ConCon dialog tells us just what were precisely going on in the minds of the framers of the same as the document instrument was drafted.

  1. Alyssa says:

February 21, 2011 at 9:12 pm

To me, the premable of the consitution means that the people decided what kind of government they wanted to live under.

  1. Thomas S Mackie says:

February 21, 2011 at 10:15 pm

At the time the Constitution was written, ALL thriteen colonies were established under the common law of England. King George signed over his sovereign authority to each one of these colonies in the Treaty of Paris. It is very confusing that these men would have chosen these words since it would have been impossible for such a group to exist as “We the People” of anything…each was citizen of his own Colony (State if you wish). While I share your enthusiasm, it is somewhat “telling” that these individuals chose to so word this organic document, a document that is nothing more than the organizational document outlining the duties and responsibilities of that corporation….”telling” in that they apparently intended for the Federal Animal to flourish…it did. The Federalist Papers were nothing more than the sales and marketing effort of those men. The Antifederalist Papers tell the true story and foretold as much way back then.

  1. Cutler says:

February 21, 2011 at 10:25 pm

The Preamble, in my opinion, in one, concise paragraph, adequately describes our founding father’s intentions for this country’s government and the Constitution, limiting it to six, “missions” if you will, to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the general welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”

  1. Ron Meier says:

February 22, 2011 at 12:15 am

To those anti-Federalists out there, I have a question. How would it have worked out better to have retained the Confederation? If you would not have retained the Confederation, what would you have put in its place? Why would that have worked better than the Constitution?

  1. Judy says:

February 22, 2011 at 1:26 am

What a utopia our country would be if our federal and state governments would have followed just the preamble let alone the entire constitution.

I could be off on a couple of these but I am really tired at the moment.


“We the People of the United States”

No longer the people of another country, king or territory but one people. No longer the people whose allegiance if for their sovereign state but allegiance to state and federal union

“in Order to form a more perfect Union”

States would acknowledge and encourage the union to be accountable to the constitution.

“establish Justice”

The federal union would no longer tolerate the injustice of oppression, tyranny, slavery or unlawful imprisonment

“insure domestic Tranquility”

The federal union would keep states accountable for keeping liberty and freedom for all people

“provide for the common defence”

The federal union would keep the sovereignty of the nation safe

“promote the general Welfare”

Key word: Promote NOT Provide: The people’s constitutional rights would be a priority

“secure the Blessings of Liberty to ourselves and our Posterity”

The freedom and liberty of the people would not be infringed upon by state or federal governments

“do ordain and establish this Constitution for the United States of America.”

This constitution is a bond between states and the federal; people and federal; people and states

  1. Richard says:

February 22, 2011 at 4:10 am

Trevor made an excellent point about the dual sovereignty with both the National government being sovereign as well as the States being Sovereign. David J. Bobb stated the the National government was sovereign but the States were not. It is my understanding that Trevors view is correct. If we want to have a correct understanding of these daily teachings, it seems we need to have the authors of these contributions address these stated contradictions or some means to set the record straight.

  1. James Burtner says:

February 22, 2011 at 9:42 am

Let me start by stating what the preamble means to me, then I will go on to comment on his blog. In my mind, the preamble is similar to a business mission statement or a personal mission statement, which lays out the goals and purpose of uniting the states into a whole, while at the same time allowing the people and individual states to govern themselves in most every other area of life.

It continued the idea established in the Declaration of Independence that men are born free, but establishes the reality that some men will use their freedom, and governments will use their power, to infringe upon the rights and freedom of others. For this reason, the people must relinquish a limited amount of their own freedom in order to establish a government to conduct the business of the nation, and to protect each man’s individual freedom. It requires citizens to follow good conduct in their dealings with others, and laws are established to this end.

The preamble lists the general duties of the federal government, and limits the federal government to those duties alone. The entire purpose of the Constitution was to lay out the federal government’s specific responsibilities as granted to them by the people of the nation, and was designed to specifically rectify problems they had faced due to the weakness of the Articles of Confederation.

In his blog, Dr. Bobb points out that it was a last minute addition to the Constitution. This is a little surprising because it so beautifully lays out the general role of the federal government. He also points out that there are those today who see the phrase, “to form a more perfect union”, as a means of continuing to evolve to a point where the states would lose their power and the federal government would be the sole governing power. This is a serious misreading of the constitution, as he points out, and the reason the country is where it is today. As he states, “to create a more perfect union” is based not on the future, but on the past, and the weakness they had found the Articles of Confederation to contain. The Constitution was designed to remedy those problems, not take the power of the states away, but to unite them as one nation that could operate and function as a whole without betraying the local interests of individual states.

  1. Ralph T. Howarth, Jr. says:

February 22, 2011 at 3:33 pm

The “insure domestic Tranquility” clause rode upon the coat tails of the Shay’s Rebellion that had just occurred up to the 1787 ConCon. Having a strong federal government insured that the states could call upon the federal for help with insurrection and rebellion going on in the state, and by having free trade and a standard of weights and measures among the states would help assure lower and fairer prices of products and prevent shortages that might precipitate a rebellion. This measure was not intended to be a federal grant to impose jurisdiction on the plenary police powers of states.

The U.S. Constitution was written to define and limit the federal government and only left a provision that the federal will guarantee to ever state a republican form of government. Not until the 14th amendment was there federal supervision on the plenary police powers of states in the form of questions on Due Process (rights to defend oneself in court) and Equal Protection of the Laws (rights to sue someone in court). Those matters, of course, is a latter reading in this 90 days Constitution reading.

  1. Mark Carr says:

February 22, 2011 at 8:21 pm

It is interesting how the Constitution has taken on so many meanings to so many people. I am very concerned about our current leaders who want to quote from the Preamble as if it is the whole document. They cherry-pick the things they want to reach their own progressive ends, most of which are directly against the word and spirit of the whole document. We need people to realize the Preamble is the introduction to the main body of the Constitution and that we all need to learn the whole thing in context before jumping off in the wrong direction.

Thank you for this opportunity to write to you all.

  1. Debbie Bridges says:

February 22, 2011 at 8:38 pm

The Constitution was created for several reasons. The Constitution created a Federal government that would have the power to collect taxes, pay debts, regulate trade amongst the States, negotiate peace treaties with Indians and negotiate with foreign countries. Other countries would not recognize the Untied States in foreign trade agreements and treaties because we didn’t have a unifying Federal government. They were not willing (rightly so) to deal with 13 individual States when negotiating with the United States. Hence, the Articles of Confederation wasn’t working for this reason as well as the other problems already discussed in this thread. The Preamble beautifully announced to the world that we had come together as One Nation with One Federal government to be our voice and protector while at the same time retaining and protecting the individual sovereignty of the separate States and their citizens.

  1. Janine Turner says:

February 23, 2011 at 11:55 am

Dr. Bobb, I thank you for your fabulous essay and for your generosity of time!
I never knew that Governeur Morris wrote the Preamble and that it was written last.
Knowkedge is power and only by truly understanding the words of the Constitution can one debate the wide array of misinterpretations that bombard citizens today. Your words enlighten the path one journeys on his/her destiny to defend our Republic.

  1. Jerry Turner says:

February 23, 2011 at 4:08 pm

WOW. It is so refreshing to read the words all of you have written. I thought I must be the only person left in common America who understood the general ideas and principles of the Constitution. People say all kinds of “stuff.” But they can never back it up with real source material. This was more informative and educational than any class I’ve ever taken. Maybe there is hope. I still doubt it, but with the middle east transforming their governments and all you intelligent individuals out there teaching fellow Americans; it gives me just a little hope.

  1. Shelby Seymore says:

February 23, 2011 at 4:38 pm

We provide for the common Welfare. Not provide Welfare. Which is one of the biggest reasons we are in a 14+ trillion dollar debt. I know welfare is a “good thing,” but only when churches or private businesses try to help the needy. Period. John Locke said the government provides protection from foreign attacks, protection from criminals, and actual needed infrastructure (which turtle crossings don’t count!). Welfare started when the poverty was 13%. Now in 2011, it’s still 13%! It didn’t help, in fact it’s making the rest of the nation less wealthy.

  1. Gene Hinders says:

February 24, 2011 at 12:52 am

The Preamble, to me was a way to sum up what the Founding Fathers had laid out for us…an 18th century “sound bite” if you will…and one of the most powerful statements to ever had been made.

  1. yguy says:

February 24, 2011 at 4:08 pm

The Preamble to the Constitution was added at the last minute by the Constitutional Convention, roundly criticized upon its announcement, and even today lacks any legal standing.

How can it have any less “legal standing” than the rest of the Constitution which was ratified along with it?

So what does it mean, and why does it matter?

In maximal contravention of those who make it out to be a throwaway line, I submit that the Preamble is properly viewed relative to the rest of the Constitution as Christ said the two Great Commandments ought to be viewed relative to Mosaic law; i.e., the Preamble tells us where we’re going, and the rest of the Constitution tells us how we mean to get there. In the same vein, I would call attention to Christ’s act of healing on the day of rest; and just as the Sabbath was made for man rather than man for the Sabbath, the Constitution was made for America rather than America for the Constitution. One consequence of this view is that regardless of whether a President can constitutionally suspend the Great Writ (which he can, IMO), Lincoln acted constitutionally by doing so during the Civil War.

  1. yguy says:

February 24, 2011 at 4:16 pm

The Constitution grants dual sovereignty by establishing vertical checks and balances in the form of a Federal Republic where the national government is sovereign in those matters related to its delegated powers listed in Article I, Section 8 while the states are sovereign in all other areas.

I say baloney. I say there is only one sovereign entity according to the Constitution, and that is We the People, our will being expressed by a supermajority of states per A5. No government entity has ANY sovereignty under the Constitution, as they are all vassals of those who consent to be governed by them.

  1. Todd says:

February 24, 2011 at 7:32 pm

I think you are picking nits regarding soverignty. Government, in the context of the document is “the people”. I think this goes without saying. But you are correct.

  1. yguy says:

February 24, 2011 at 9:45 pm

Government, in the context of the document is “the people”.

If that’s true, then the master is his servant, and his command to the servant is a command to himself. Obviously that makes no sense, since We the People delegate certain tasks to our servants in government because we can’t or won’t do them ourselves.

  1. Ruth Harper says:

February 25, 2011 at 11:17 pm

As the name “Preamble” says, it “walks before,” or introduces, the Constitution. As such, it identifies the parties: in this case “We the People” and “the United States,” and it establishes the nexus or connection that binds them together. According to my Black’s Fifth, the preamble is also “explanatory of the reasons for its enactment” the pronoun referring to the Constitution)and states “the objects … to be accomplished.” In that sense, it is indeed analogous to a mission statement as someone has already said.

It is true that it does not grant any powers; Black’s again, this time quoting a particular case: it “neither enlarges nor confers powers.”

  1. Ruth Harper says:

February 26, 2011 at 6:58 am

A Caveat Against Injustice
– or –
An Inquiry into the Evils of a Fluctuating Medium of Exchange

Oddly, the specific issue under the Articles… that caused great problems and inequities, as stated in a book called Miracle on Main Street, and explicated in another, called E Pluribus Unum, was the lack of a lawful “money of account” among the states. Some places used specie coin, others paper “money” that was essentially worthless, with resulting chaos, rioting, and bloodshed.

The most familiar example was Shay’s Rebellion which arose at least in part because those western farmers had no specie money (gold or silver coin) with which to pay taxes demanded by their brethren in Boston on the East Coast who only dealt in specie because they could demand it for the products they traded with foreigners.

Thus, with Shay’s as a trigger, the Constitutional Convention was called in large measure to solve the problem of a lack of uniform currency or money of account (as opposed to the paper “continentals” that were “of no account” or just plain worthless).

Hence the specific concerns listed in the Preamble

“…to form a more perfect union,” (one money; uniform currency),

“establish justice,” (paper, like corn or apples, does not last or hold value as do gold and silver),

“ensure domestic tranquillity” (There was contemporary fighting over money issues),

“provide for the common defense,” (pay soldiers in money that has real value),” and especially,

“promote the general welfare,” (general well-being does not happen with a fluctuating medium of exchange! It happens with business and enterprise done with a stable medium of exchange; something that holds intrinsic value),”

“and secure the blessings of liberty to ourselves and our posterity…,” (what greater blessing than being able to buy and sell and save for a rainy day in something that has enduring value, and then even pass it on to our offspring?)

  1. Ruth Harper says:

February 26, 2011 at 8:18 am

Oops! The author of the “Caveat …,” was Roger Sherman, the only Founder to sign and/or help write all four of our really important founding documents: the Continental Association of 1774, the Declaration of Independence, the Articles of Confederation, and the Constitution of the United States.

But his “Caveat Against Injustice – or – An Inquiry into the Evils of a Fluctuating Medium of Exchange,” predated all those by more than 20 years! He wrote the Caveat in 1752, based on real-life experience. Like the authors of the Federalist Papers, Sherman modestly hid behind a pseudonym: He called himself a “Lover of Good Law” which, borrowing Greek, was “Philo eu nomos” (though not spaced as I did it here). When only two copies were known to exist, F. Tupper Saussy, author of The Miracle on Main Street saw the copy inscribed by Mr. Sherman to a friend wherein he had crossed off the Greek nom de plume and wrote in his own name.

One can go to the Connecticut State Library in Hartford and search out the file of a lawsuit in which Roger and his brother William sued James Battle for “paying” a debt of 129 pounds with nearly worthless paper from the “Rogue State” of Rhode Island. The Sherman brothers lost the case, but won the war, so to speak, because Roger lived to write into the new 1787 Constitution, Article I, section 10, that “No State shall … make any Thing but Gold and Silver coin a tender in payment of debts….” I believe his imprint is on other clauses as well, but just that one would be sufficient glory could we but interest state authorities in living up to it by demanding that the Federal Reserve be audited, and then sent packing, and that our mints resume making real money so we could all give up the “paper is money”charade!

  1. Susan says:

February 26, 2011 at 12:42 pm

yguy, I believe the thinking for the representative republic was to hire a ‘representative’ to take care of that portion of the business of governance so that the majority of the people could continue in a more efficient day-to-day operation of life and the provision for his family and community.

  1. Ralph T. Howarth, Jr. says:

February 26, 2011 at 3:24 pm

Ruth, I had no idea that Philoeunomos was Roger Sherman. I thought the name/title had something to do with the Bible’s Philemon. Now I know different and pleasantly something more. Thank you very much!

  1. craig eyrich says:

February 28, 2011 at 6:22 pm

dear janine and cathy, i am so happy that ‘classes’ have resumed!–i will follow this assiduously and try to support your website as best i can!– as i’ve said in the past–i never learned anything from opening my mouth and i am truly grateful for the learned commentaries from the other devotees of this website!–your friend in liberty, c.eyrich

Saturday, May 29th, 2010

As I read Federalist 23, I thought about attacks the United States has endured in the last century: especially the air attack on Pearl Harbor, and September 11, when hijacked commercial airliners were flown into the World Trade Center and the Pentagon, and United Airlines Flight 93 was crashed before it could reach its target.  These types of attacks have been unimaginable to the people of the United States, even our leaders at the highest levels of government, until they occur.  And the only certainty is that our country will eventually be attacked again, in a new creative way, that we once again cannot imagine.

Alexander Hamilton knew this. His words, “The circumstances that endanger the safety of nations are infinite….” and, “it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them,” ring true as we remember the wars our country has fought through the years since 1787, and the many times the President has had to send troops into hostile situations.

The founders wisely built checks and balances into our national defense.  While the Congress is given the power in Article I, Section 8 to declare war and to raise and support troops, the President is designated as the Commander in Chief in Article II, Section II, a power used broadly by Presidents to send troops where the President has deemed necessary. The War Powers Act of 1973 attempted to clarify and formalize consultation with Congress by the President when sending troops into hostile situations, and put a time limit on troops sent by the President without Congressional approval.  The Constitutionality of this law has been questioned, some have advocated for its repeal, and most recently in July, 2008 a bi-partisan Commission led by former Secretaries of State James Baker and Warren Christopher, recommended improvements.

While there is tension between the executive and congressional branches over the parameters of their war powers, it is imperative that our government provide for our defense, and be given the power to do so. Whether it be stopping Hitler and Japan in World War II, halting the spread of communism, as was attempted in Vietnam, or fighting terrorists in Afghanistan and Iraq, our American Troops, directed by our Commander in Chief, have bravely kept our country safe and preserved our liberty.

It is fitting we read Federalist No. 23 on this Memorial Day Weekend.  Let us honor those men and women who have sacrificed their lives so that our freedom lives on, and let us be thankful for the wisdom of our founders who knew that providing for the common defense was best left in the hands of our federal government.

Cathy Gillespie


Monday, May 31st, 2010

It is interesting that in the early days of the republic, people feared a standing army. The Pennsylvania and North Carolina Constitutions went so far as to say, “As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up.”  This was a legitimate fear, based on history, as Allison Hayward points out in her essay today.  (Thank you, Allison, by the way, for your second Guest Blogger essay!! We appreciate your insights!!)

Our founders addressed this possible threat to the peoples’ liberty by placing the power of Commander in Chief with the executive branch (Article II, Section II of the Constitution), but the power to raise armies with the legislative branch (Article I, Section VIII of the Constitution).  And they even included a clause which forbade the appropriation of money for the support of an army for any longer period than two years, as a precaution to keeping troops without necessity.

Today, on Memorial Day 2010, most Americans look at our military not with the suspicious eye of our forefathers, but with heartfelt pride and gratitude.  Two days ago Rasmussen announced a poll showing that 74% of Americans have a favorable view of the U.S. Military.  Only 12% had an unfavorable opinion and 13% weren’t sure.

I believe part of this strong support for our troops is due to the founding fathers’ wise use of checks and balances in structuring the government’s control of the military, balancing power between the legislative and executive branches.  The abuses that the anti-federalists feared have not come to pass.

An equally important factor responsible for American support of our troops is the quality of the men and women who, since the elimination of the draft, have chosen to serve. These are brave, selfless men and women – fathers and mothers – who leave their families for years at a time to go to foreign lands and defend freedom.  These members of the armed services make sacrifices in their personal life, their financial life, their physical and mental health, and sometimes make the ultimate sacrifice, all to defend our liberty.  I am honored and blessed to count many active duty members of the military as friends, and I cannot think of any people with higher character, sense of patriotism and duty to country than these service members.

God bless those who have sacrificed their lives in defense of our freedom, may God be with their families, and may God be with and bless our active duty military and veterans.  Our country owes you all a huge debt of gratitude.  Thank you, from the bottom of our hearts.

Cathy Gillespie


Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

In various essays, the reader has met Alexander Hamilton, polemicist; in Federalist No. 32, Alexander Hamilton, constitutional lawyer, takes a turn. The topic is whether the power to tax granted to the national government under Article I, Section 8, clause 1, of the Constitution deprives states of the power to tax. In a logical and (mostly) clear progression of premises and conclusions rooted in classic exegesis of the Constitution, Hamilton lays out the argument that the state and national governments have concurrent powers to tax. The matter of “exclusive” and “concurrent” powers is an exploration of the mechanics of our federalism.

From the perspective of government, the power to tax is an essential aspect of sovereignty and self-determination. Our personal experience tells us that dependence on others for funds makes one less fully autonomous and in control of one’s life. Just as an invigoration of Congress’s power to tax was an essential part of the Philadelphia Convention’s mission, retaining the power to tax is essential to state sovereignty, and Hamilton seeks to assuage concerns on that point.

Powers granted to the national government are exclusive only if the Constitution says so (such as the power to make laws for the District of Columbia), if the power is expressly prohibited to the states in some manner (such as the states’ lack of power to tax imports and exports), or if a reservation of the same power to the states would be “absolutely and totally contradictory and repugnant” [italics in original] to the national government’s exercise of the power. All other powers are concurrent, and any conflict between the governments over whether one should tax an activity that the other is already taxing is merely a matter of pragmatic policy. Based on the language of the clause that grants the power to tax to the national government, and the clause in Article I, Section 10, that expressly prohibits the states from taxing imports and exports without Congress’s assent, Hamilton concludes that the power to tax is concurrent, not exclusive.

Today, interpreting powers as concurrent is preferred. That maximizes the residual sovereignty of the states. But, since it does nothing to reduce the powers of the national government, reading a power as concurrent merely multiplies the layers of (often duplicative) government regulations, as, for example, applicants for many types of permits know well.

Hamilton’s argument seems so clear, one wonders why he even made the effort. The answer lies in the sophisticated attacks from the Antifederalists that foretell of political conflict over the practical ability of both the national government and the states to seek tax revenues from the same sources, and over the broader issue of overlapping powers in this novel federal system.

The opponents, led by “Brutus,” see a deeper constitutional problem rooted in an inevitable grab for power by a national government that will seek ever-greater amounts of revenue, to the detriment of the states.“The power to tax is the power to destroy,” as Chief Justice Marshall would write later in McCulloch v. Maryland. Ultimately, the individuals or assets taxed will bear no further assessments. At that point, Brutus predicts, the national government will use the taxing power, the necessary and proper clause, and the supremacy clause to pass laws to gain pre-eminent access to available revenues and to preclude the states from gaining revenues needed to maintain their governments.

While one may question whether such a dire scenario will ever play itself out at a constitutional level through explicit federal legislation to prohibit state taxes (or whether such a law would even be constitutional), it is already happening indirectly. The national government’s hunger for tax revenues is becoming more voracious as ever more aspects of individual lifestyle choices are transferred to national bureaucracies. That leaves the states increasingly hard-pressed to find sources for taxes not yet tapped to the hilt by Congress, though it must be recognized that California politicians, at least, seem to be very creative in finding new turnips from which to squeeze figurative blood.

The national government has long exercised control over the states by distributing to them grants subject to conditions intended to induce state compliance with federal mandates. Those grants are funded through taxes that, if the national government did not levy them, would be available to the states, which could spend the revenues raised without needing to comply with federal mandates. This creeping control over state sovereignty through the taxing and spending powers is one aspect of the lawsuit by various state attorneys-general against the recently-adopted health care reform law.

Hamilton also contrasts the situation of an exclusive federal power where no state participation in the area is constitutionally permitted, with the case where, though the states have concurrent power constitutionally with the national government to legislate, there are “occasional interferences in the policy [italics in original] of any branch of administration [that] would not imply any direct contradiction…of constitutional authority.” A slightly modified version of the latter is the current interpretation of Congress’s expansive power to regulate interstate commerce. That power is concurrent, and the states are able, within broad limits, to regulate interstate commerce through, for example, inspection laws and truck weight regulations.

Congress also can pass laws under its constitutional powers that, under the supremacy clause, override (“preempt”) the states’ otherwise proper concurrent regulations. It was precisely this type of scenario that Brutus raised in his alarm about the effect of the Congress’s taxing power on the states’ power to raise revenue. Hamilton has not directly addressed that argument in Federalist No. 32. He attempts a response in the next essay.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is

Thursday, June 10th, 2010

In Federalist No. 33, Hamilton defends the Necessary and Proper clause, found in Article I, Section 8 of the United States Constitution:

The Congress shall have Power To…….. make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Hamilton’s main defense of the clause, as Professor Knipprath points out, is to say that the clause merely restates a power that exists with or without the clause.

Driven by curiosity as to why the framers included the controversial words, if the power existed with or without them, I did some research.

I found the following information in the excellent resource book, The Heritage Guide to the Constitution, Edwin Meese III Chairman of the Editorial Advisory Board:

The necessary and proper clause served two purposes in the framers’ minds:

1. to allow the Congress to do what was necessary to organize the government (create executive departments, set the number of Supreme Court Justices, divide out judicial power among courts).

2. to help carry out Congress’s enumerated powers contained in Article I, Section 8.

In his essay on pages 146-150, in The Heritage Guide to the Constitution, David Engdahl tells us the opponents of the Constitution nicknamed this clause the “sweeping clause,” or the “general clause,” and Brutus, their spokesperson, said it “leaves the national legislature at liberty, to do everything, which in their judgment is best.”

Engdahl tells us that James Wilson who authored the clause, explained at Pennsylvania’s ratification convention that he saw the clause as “limited,” and “for carrying into execution the foregoing powers.”  Wilson stated that the clause authorizes what is “necessary to render effectual the particular powers that are granted.” In other words, the clause authorizes no more than the powers already enumerated, and is to assist in fully effectuating those powers.

The Necessary and Proper Clause has become the proverbial camel’s nose under the tent, much as the anti-federalists feared.  Congress is able to justify certain laws constitutionally by enacting legislation that is within the scope of its enumerated powers, but the same legislation may also affect areas outside of the enumerated powers, adding to the “federal creep,” unintended by the founders and predicted by the anti-federalists.  As Professor Knipprath points out, the Necessary and Proper Clause is aptly nicknamed the “elastic clause.”

Hamilton’s answer to this problem is clear,

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”

This is why it is so important that “We The People” are educated, and understand the “just bounds of authority.” If we don’t know the Constitution, how will we know when it is injured?

Thank you to all of you who are joining us on this educational journey! Your energy and enthusiasm is inspiring, and we are learning from every comment on the blog!

Please continue to forward our web address, to your friends, and encourage them to join us.

If you are silently reading along, please add your voice to our blog!!  90 in 90: = 180 is not complete, without YOUR thoughts!!

Have a great weekend!

God Bless,

Cathy Gillespie

Friday, June 11th, 2010

Guest Essayist: Robert Lowry Clinton, Professor and Chair of the Department of Political Science at Southern Illinois University Carbondale

In Federalist 82, Alexander Hamilton continues his defense of the federal judicial arrangements proposed in the Constitution, focusing here upon the relation between the national and state judicial systems. In brief, Hamilton argues that the jurisdiction of the national and state courts is concurrent with respect to any issue not strictly forbidden to the states by the Constitution or laws. To understand the doctrine of concurrent jurisdiction, a brief look at the power structure elaborated in the Constitution will be helpful.

The Constitution establishes three main branches of government. In Article I, Section 8, specific lawmaking powers are assigned to Congress. In Article II, Sections 2 and 3, executive powers are assigned to the President. Judicial power is assigned to the Supreme Court (and lower federal courts that Congress chooses to establish) in Article III, Section 2. The judicial power is precisely stated to be the power to decide cases and controversies arising under the Constitution, laws and treaties of the United States.

After establishing and assigning powers to the national government, the Constitution then places some limits on how national power can be exercised. This is done first in Article I, Section 9, where the government is denied the power to pass ex post facto laws or bills of attainder, for example. Article I, Section 10 places a similar set of limitations on the state governments. After the Constitution was adopted, the First Congress proposed twelve amendments, ten of which were adopted. These amendments, now referred to as the Bill of Rights, were designed to impose additional limits on the national government.

The final article in the Bill of Rights is the Tenth Amendment. This provision is declaratory, meaning that it simply states what was already implicit in the Constitution. It reserves to the states all powers not assigned to the nation (e.g., in Articles I, II, or III) or denied to the states (e.g., in Article I, Section 10). Some powers granted to the nation are obviously allowed to the states as well (e.g., taxation, general law enforcement, and application of law by courts). These are called “concurrent” powers.

Hamilton’s argument in Federalist 82 is simply that one of the concurrent powers shared by both the state and national judiciaries is the power to apply federal law in cases properly arising in the courts. This means that state courts are empowered to decide federal questions (whether constitutional or statutory) in the first instance, subject to appeal to the U. S. Supreme Court or to inferior federal courts that Congress chooses to establish. This reading of the Constitution is necessitated by the fact that the Constitution itself established no inferior federal courts at all and severely restricted the Supreme Court’s trial jurisdiction to a narrow range of cases.

This reading of the Constitution is also necessitated by the very nature of judicial power. According to Hamilton, “The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union where it was not expressly prohibited.”

When concurrent powers exercised by both the state and national governments conflict, Article VI of the Constitution grants supremacy to the nation, stating that “This Constitution, the Laws Pursuant to it, and federal Treaties are the Supreme Law of the Land, anything in the constitution or laws of a state to the contrary notwithstanding.” Thus state judges are instructed to invalidate conflicting state laws. If they fail to do this, Article III, Section 2, which extends national judicial power to all cases arising under the Constitution, empowers the federal courts to overrule the state courts.

In the Judiciary Act of 1789, Section 25, the First Congress enacted Hamilton’s understanding of concurrent jurisdiction explicitly, authorizing the United States Supreme Court to reverse or affirm any judgment of a state’s highest court in which a national law is invalidated or in which a state law is upheld against a federal constitutional challenge. In other words, if a state court invalidates a national law, then the Supreme Court is authorized to reverse or affirm that state court decision. This means that the concurrent jurisdiction of the state and national courts extends even to federal constitutional issues.

The bottom line in Hamilton’s argument about concurrent jurisdiction is that there is no strict separation of national and state judicial authority under the Constitution. The Founders envisioned a more flexible arrangement that allows courts to draw upon all legitimate legal authorities and sources in order to resolve disputes peacefully. That is the essence of the judicial function.

Wednesday, August 18th, 2010

Robert Lowry Clinton is professor and chair of the Department of Political Science at Southern Illinois University Carbondale.


Howdy from Texas! What a great first day of blogging. How exciting to be having a national conversation about the reading of the U.S. Constitution. Don’t forget to read it with your kids at the dinner table, in the car, before bedtime! Perhaps they will then want to enter our, “We the People 9.17 Contest” for kids.

I want to thank David Bobb for being our first Guest Blogger. We have the link to his site at the Kirby Center on our site and they offer a fabulous five hour seminar about the Constitution that is broken down into 45 minute segments.

I get such a thrill when I read the Constitution. Our forefathers had such vision and  such wisdom! The Preamble is masterful and within it lies thoughts to ponder. Some relevant phrases today are: “promote the general welfare.” It does not say “specific welfare of every individual.” We are given liberty to pursue our welfare as we wish.

This leads to the second relevant phrase: “secure the Blessings of Liberty to ourselves and our Posterity.” Well, let’s see.. the word Blessings is in there. Blessings are not from “government” but from God. We then have the word, “Liberty.”  How does one define Liberty? I looked up the word, “Liberty.” Here are two of the definitions:  “immunity from arbitrary exercise of authority: political independence.” Another definition is: “freedom of choice”; “liberty of opinion”; “liberty of worship..” If we are to take an inventory of our immunity form arbitrary exercise of authority and/or political independence today, then I think it is safe to say that these liberties are being infringed upon. How about freedom of opinion? It would certainly appear that the negative labeling of the Tea Party is an attempt to stifle freedom of opinion. How about freedom of worship?  What about the child in Massachusetts who was taken out of class and sent to the psychiatrist because the child drew a picture of the cross of Jesus?  Thus, in the Preamble, alone, I see many aspects that are both relevant and endangered.

Article I Section 8 drew my fascination. Our founding fathers intended for the two Senators from each state to be chosen by the State Legislature. The Senate was to be the State’s house and the House of Representatives the People’s House. This was changed, as we read today, by the XVII Amendment in 1913  – during the Progressive era. This was not our forefather’s intention. One has to ask  would the healthcare bill have passed today if the Senate was operating within it’s original intent – the Senate representing the States? Somehow, I do not think so.˜

The other clause that captured my attention was in Article 1 Section 8 Clause 8: “to promote the Progress of Science and useful Arts, by securing for Limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” I think that this security of ownership gave people the desire and passion to spread their wings and fly. This clause gave Americans the burst of inventions and creativity that made America great. Promoting progress and giving the Inventors exclusive rights – in other words- giving the people their Liberty and keeping government out of their affairs – led to the fulfillment of human genius. Big government, the kind we face today, stifles the spirit of democratic ingenuity and deflates desire.

The list goes on and the study is broad. Yet, I am so grateful to have this opportunity to be reading, blogging, thinking about the U.S. Constitution with you all. I thank you for your participation. I look forward to hearing from you tomorrow and spread the word!


Janine Turner

April 21, 2010

Posted in Article I of the United States Constitution, Constitutional Essays by Janine | Edit | 10 Comments »

10 Responses to “April 21, 2010 Article I of the U.S. Constitution – Janine Turner”

  1. Jeff Phinney says:

    Last year I bought and began reading “The Words We Live By – Your Annotated Guide to the Constitution” by Linda R. Monk.

    One of the passages I highlighted was a quote by Judge Learned Hand during WWII that emphasizes that the constitution depends on the citizens for its support:

    “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it”

    Miss Turner, thank you for the opportunity to allow us citizens to learn and hopefully support our Constitution and the documents that are the foundation of this great nation.

  2. Kristine says:

    Good of you to point out in your blog the distinction of who elects members of each house (originally): state legistlators to elect Senators and the people to elect Representatives . I read but did not register the import of the words written.

  3. Robert Shanbaum says:

    It is certainly interesting to see how a given passage (of any kind, I suppose) can be read so differently by different people. For example, Article I, section 8, paragraph 8 is usually read to empower the federal government to award copyrights and patents – both of which are an intrusion of the government into what would otherwise be an unregulated marketplace for intellectual property. That hardly can be said to constitute “keeping the government out of [the people’s] affairs.” On the contrary, like all the grants of power in the Constitution, it is a grant of power to the government to establish and enforce laws intended to produce a civil society that promotes “life, liberty, and the pursuit of happiness”, or if you prefer, the “general welfare”, better than one that lacks such laws, or such a government.

  4. Dale Pettit says:

    Shame on all of us for neglecting our citizenship responsibilities to the United States Constitution. We have, over the past 100 years or so, been willing to allow our so called elected leaders to deviate from the true meaning of Liberty and Freedom! We could of course, claim we were busy making a living, busy with our own lives. Yes, fiddling while “Rome” burned or the “Titanic” sank etc.

    The media of the day, News Papers previously, TV comentators later and those same so called elected governement officails were and still do believe that the “common citizens” are not intelligent enough to govern ourselves. Now, the internet has opened up the shared discovery of this responsibility at the speed of light.

    We Trusted for too long our responsibilities to others. This program of self study of the constitution demonstrates the importance and true nature of the US citizens. Congratulations for a great spark of ingenuity, may it flame across America and the world.

    Thank you!

  5. Susan Craig says:

    It was originally thought that the Senators would be the advocates for the State the represented as a whole while the Representative proposed to be the populist advocates.

  6. John says:

    the 16th amendment my not have been ratified properly ???? this needs more investagtion

  7. Louis Palermo says:

    The Constitution must be understood as a catalyst to the events that preceded it! The Constitution is the Symbol of the United States- a sacred symbol. It is a symbol for liberty and justice. It is our attempt to limit its ability to be victimized; to protect itself from itself. The power behind the Constitution is that it limits government and protects our most sacred rights!
Article I creates legislative power and vests it in Congress. It creates national government and separates power. It accomplishes this by dividing power between the federal and state governments. This is Federalism in its most fundamental state. The Constitution may only be amended and not changed by statute. This important to understand because it conveys the history of this very instrument and how it was created in the first place. It was the founding father’s insight that was desired to be governed under it. 
Article I specifically drafted by the forefathers to create ’specific’ powers of Congress. Not powers of ’statute’ which could be altered by a tyrannical government. We need to keep the separation of powers- and the Constitution is the instrument that has stood the test of time and kept our most cherished values. We should continue to be suspicious by powers or persons that doubt the power of the Constitution. There is reason why those in power are required to take an oath to uphold the Constitution and that is primarily to limit any change by the ‘political’ majority. That is to keep a system of checks and more checks. Article I is the system of checks and balances that accomplishes that. 
So, furthermore, Article one is relevant today as it was 200 years ago to Keep the Power balanced! So the final issue is how the Constitution goes about keeping the balance. This ‘balance’ manifest itself through ‘interpretation’ of the very instrument-the Constitution.

  8. R. B. McGinnis says:

    Article I Section 8 drew my fascination. Our founding fathers intended for the two Senators from each state to be chosen by the State Legislature. The Senate was to be the State’s house and the House of Representatives the People’s House. This was changed, as we read today, by the XII Amendment in 1913 – during the Progressive era. This was not our forefather’s intention. One has to ask would the healthcare bill have passed today if the Senate was operating within it’s original intent – the Senate representing the States? Somehow, I do not think so.˜

    Ms Turner, With all due respect you may wish to review the historical context in which the XII amendment was adopted. Contrary to the opinions of Glenn Beck and other revisionist historians the early 1900s under the leadership of Presidents Roosevelt and Taft was an extremely necessary readjustment the American society. As a result of excesses of the robber barons in creating the cartels and trusts the interests of the ordinary citizens of the United States were protected from rapacious greed by the adoption of laws such as the food and drugs legislation providing for food inspection and safe medicine. All you have to do is read the “Jungle” to see the excesses of meat packing industry in the way immigrant labor was treated and the tainted meat that was being sold to the public. The creation of the Interstate Commerce Commission protected the interests of American framers from the exorbitant freight rates charged by the railroad cartels.
    I would also suggest that you make self of aware of the history of Montana, my state, regarding the election of William A. Clark as one of the first Senators of Montana. He essentially bought the Montana Legislature to secure his election. He bribed each legislator on the average of $12,000 per vote. The election was so fraudulent that the Senate refused to seat him. I will be happy to provide you with several historical references to this event. But, this blatant act of fraud was the major impedance for the adoption of 12th amendment.

  9. Sean Montgomery says:

    Janine, I heard you and about this on Bill Bennett Monday morning, and I’m so glad I did. My eight-year-old wrote down on his to-do for today to “Read Constitution first seven articles” which I printed for him. We will be discussing each Article each night at the dinner table so the whole family can benefit.

    God bless you.

  10. yguy says:

    “The Preamble is masterful and within it lies thoughts to ponder.”

    I’d go a lot farther than that. I’d say the Preamble is to the rest of the Constitution what the Two Great Commandments are to Mosaic law, which is to say any act or law which is a hindrance to the objectives in the Preamble is unconstitutional.

    I think a good example of this is Lincoln’s suspension of the Great Writ during the civil war, an act thought by many to be unconstitutional, but evidently deemed necessary by Lincoln to preserve the Union. Assuming he was correct, one only need look at Zimbabwe to reasonably surmise that the consequences of his failure in that regard would have been grim at best and horrific at worst.