Guest Essayist: David J. Bobb, Director, Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, Hillsdale College, Washington, D.C.

“Commencement Address at Howard University”

Lyndon B. Johnson

At the end of the United States Civil War, a century before President Lyndon B. Johnson’s 1965 Commencement Address at Howard University, the ex-slave turned American orator and statesman Frederick Douglass concluded that the best thing the federal government could do for Americans of African descent was to leave them alone. Read more

Guest Essayist: Dr. David Bobb, Director, Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, Hillsdale College

When in 1863 Abraham Lincoln began his address at Gettysburg battlefield with the phrase, “Four score and seven years ago,” he reminded his fellow citizens that their cause in the Civil War was also the cause of 1776.  In the year of America’s birth, Lincoln stated, “Our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”

America’s principles are liberty and equality, and our Founding understanding of their relationship was revolutionary. Read more

Guest Essayist: David J. Bobb, Director, Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., and lecturer in politics

Amendment XX, Section 3:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified, and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

On January 6, 2001, Vice President Al Gore presided over his own political funeral.  On that day, a joint session of Congress certified the final Electoral College vote that put George W. Bush into the White House.  Vice President Gore had the unenviable task of wielding the gavel at the certification of his Republican foe’s victory.

Imagine now not a political funeral at the end of a presidential election, but an actual funeral—for a president-elect—in between the November election and the January certification of electoral votes.  That’s the main scenario the third section of the Twentieth Amendment is designed to address.

Largely unrelated to the first two sections of the Twentieth Amendment, which shortened the time of the lame-duck presidency, the third section of the amendment has prompted, it seems, more unanswered hypothetical scenarios than it has answered.  Although it sought to address gaps left by previous efforts to address presidential secession, this section (and the fourth that follows) still leaves much to constitutional and legislative conjecture.

As legal scholar Akhil Amar pointed out in Senate testimony in 1994, the main problem with the Twentieth Amendment, left unanswered by the Twenty-Fifth or any legislation on the matter, is that “it is not self-evident that a person who dies before the official counting of electoral votes in Congress is formally the President elect.”  The very term “President elect” is left ambiguous, then, with the result, according to Amar, of a possible confusion about the electoral status of the decedent.

What’s worse, Amar further wonders, is what would happen if the presumed presidential election victor dies before the Electoral College meets in December?  “What is a faithful elector to do here?” Amar queries.  The elector gets no guidance from the Constitution, although Congress did refuse to count three electoral votes cast for candidate Horace Greeley, who passed away after he earned the votes but before the College had met.

Push the dismal early death scenario even earlier, and the problems mount.  What if a candidate perishes just before the November election?  Or what would happen if both president-elect and vice-president elect are simultaneously slain, in advance of the congressional certification of the electoral count?

The scenarios are endless, and while the Presidential Succession Act of 1947 tried to plug holes that existed, there are numerous scholars today that are convinced that more legislative fixes are still required.  In one notable recent move, the Continuity of Government Commission—a joint effort of the American Enterprise Institute and the Brookings Institution—offered suggested remedies to problems in presidential succession that since their 2009 proposal have not been adopted by Congress.

Despite the questions that abound about this amendment’s third section, there exists a notable irony that almost came to fruition just after the passage of the Twentieth Amendment.  As the Continuity of Government Commission’s report details, had President-elect Franklin D. Roosevelt not escaped an assassin’s bullet that claimed the life of the mayor of Chicago, the Vice President-elect, John Nance Garner, would have assumed office under the terms of the Twentieth Amendment’s third section.

David J. Bobb is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C., and lecturer in politics.


May 23, 2012

Essay #68

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

Watch or Listen to Janine Turner Read: The First Amendment: The Establishment Clause – Guest Essayist: David J. Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.


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

The First Amendment:  The Establishment Clause

The Establishment Clause of the First Amendment might be less well known today than “the wall of separation between church and state” metaphor used by President Thomas Jefferson in an 1802 letter.  This misinterpreted metaphor has come to define the modern debate over church and state, leading many Americans to believe that the Constitution calls for the strict separation of religion and politics.

In fact, what the Establishment Clause actually accomplished is nearly opposite what the Supreme Court in the twentieth century said it means.  In barring Congress from establishing a national church, the Establishment Clause marked an important commitment of the Founders to civil and religious liberty.  Unlike England, America would not have an official church.  This is good for government, and good for religion.  Congress was prohibited from imposing a one-size-fits-all religious straitjacket on the nation, leaving state governments wide latitude of operation in matters of church and state.

In the 1947 Supreme Court decision in Everson v. Board of Education, the First Amendment policy of federalism was supplanted by the doctrine of incorporation.  Ruling that the First Amendment’s Establishment Clause is applied not just against Congress but also against the states (through the Due Process Clause of the Fourteenth Amendment), the Court put itself on a quick path to becoming the national arbiter of all disputes over religious matters pertaining to public entities.  As Justice Hugo Black wrote, “The First Amendment has erected a wall between church and state.  That wall must be kept high and impregnable.  We could not approve the slightest breach . . . .”

Under this new standard, the Supreme Court found breaches in the wall nearly everywhere it looked, as it ruled unconstitutional many longstanding practices, including prayer and Bible reading in public schools.  Assuming the mantle of a “national school board,” as one scholar put it, the Court put forward various “tests” by which it sought to determine the religious or secular purpose of public assistance to religion.

The modern legal understanding of the Establishment Clause has led to a confusing array of contradictory decisions.  For instance, whether a municipal crèche display is an unconstitutional violation of the Establishment Clause hinges in part on what other symbols—religious or secular—are included in front of city hall.  State laws allowing government funding of secular textbooks for private schools have been deemed by the Court constitutional, but government funding of field trips in private schools has been held unconstitutional.

For the Founders, public support of religion, whether by the federal or state government, was never tantamount to the unconstitutional establishment of religion. In fact, nearly all of the Founders held that the public promotion of religion and virtue was vital to the maintenance of republican institutions.  Religion was affirmed as a public good, not an evil to be kept private.  Prudence dictated, many early Americans believed, that state established churches did not make for good policy, but none argued that when a dispute arose in a state about its established church, or public support of religion, that the national government should step in and impose a solution.  That was a matter for the states to decide, and increasingly they would do so informed by constitutions and laws that upheld the full natural rights of all citizens.

Protection of religious liberty was of paramount importance to the Founders, but the means by which citizens were protected in their liberty came not mainly in the adoption of the Establishment Clause, but in the constitutional architecture as a whole.  “The Constitution is a bill of rights,” Alexander Hamilton said, emphasizing the fact that the locus of liberty is not any list, but rather the equipoise of limited government, federalism, and separation of powers that should be maintained in the Constitution’s structure.

Finally, it is worth noting that the First Amendment was not even first on the list of twelve that James Madison originally proposed in the First Congress in June 1789.  Nor was it first in the list the Congress sent to the states in September of that same year.  When the two amendments preceding what is now the First Amendment were not ratified immediately (one was about representative ratios, while the other, which was adopted as the 27th Amendment, was about congressional compensation), the Establishment Clause was thrust into its starring role as the first clause in the First Amendment.

The Establishment Clause of the First Amendment is a clear statement of the fact that the United States of America has no official church.  In endorsing the federalism of the Constitution, and explicitly barring Congress from arrogating unto itself power it does not have, the Establishment Clause reaffirms the powerful commitment of the Constitution to the promotion of civil and religious liberty.


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.  Hillsdale’s free online course, “Constitution 101,” starts this week.  The U.S. Constitution: A Reader, around which the course is based, includes 113 documents, including a complete section on religious liberty.

February 23, 2012 

Essay #4 

Interview with Janine Turner on the Janine Turner Radio Show

Dr. David Bobb, Director and Lecturer in Politics, Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship
Hillsdale College visits with Janine Turner on the Janine Turner Radio Show, Saturday, July 16th on DFW’s KLIF.  Listen as they discuss Dr. Bobb’s essay on the Preamble to the United States Constitution,  found in Constituting America’s Analyzing the Constitution Project at this link:

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.


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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

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

A republican government is one in which the people rule—indirectly.  How, not if, the people should be represented was one of the vexing questions faced by the delegates to the Constitutional Convention.  Especially tricky was determining the size of the House of Representatives, the topic Madison takes up in Federalist 55.

Until the very last day and hour of the Convention’s debate in 1787, the consensus opinion of delegates was that there would be one member of the House for every 40,000 American citizens.  On September 17, what we now know as Constitution Day, the final day of deliberations, Benjamin Franklin made a last plea for unanimity in the signing of the document.  It was a dramatic speech, and might have made a fitting coda to the Convention but for one last interjection.

Nathaniel Gorham, from Massachusetts, motioned to peg the ratio of each House member per people represented at 1:30,000 instead of 1:40,000, hoping that the new figure might bring on board a few more dissenters who wished federal elected officials to be more accountable to the people.  After the motion was seconded, George Washington, who up to that point had not spoken at all during the Convention, despite presiding over it, intervened to offer his own, weighty, second to the motion.  The new ratio passed unanimously (even if the Constitution did not).

Despite the adoption of the new ratio, and the promise of a 65-member House of Representatives if the Constitution was ratified, some anti-Federalists still thought the numbers, and the principle they represented, were not quite right.  Lower ratios meant less chance of cabal, or undue influence by forces inimical to the common good.

To these complaints Madison offers a direct rejoinder:  “Nothing can be more fallacious than to found our political calculations on arithmetical principles.”  Fiddle with the numbers all you want, he says, but you are still dealing with people who are prone to abusing power.  “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”

To avoid mobocracy, then, we must rely upon prudence.  Sixty-five House members seems a good number for now; the nation will continue to grow, of course, Madison says.  The most important point is not to get lost in the debate over numbers, because however vital it is that we get those right, we must without fail take our political bearings from human nature, not numerical calculations.

“As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence.  Republican government presupposes the existence of these qualities in a higher degree than any other form.”

Men are not angels.  But they also are not beasts.  Don’t trust human beings too much, Madison says.  Similarly, don’t get so down on human beings that self-government is thought impossible.  Virtue is required for republican, or representative, government.  What sort of virtues—“these qualities” that are mentioned by Madison—do you think are “presupposed” by republican government?

As for the numbers, it’s worth noting that had the original ratio of 1:30,000 held constant, the House today would have more than 10,000 members.  Today, an average of slightly more than 700,000 Americans are represented by a single member of the House of Representatives.  Since 1912 the number of House members has been set by law at 435.  Is this ratio in need of a readjustment?

Tuesday, July 13th, 2010

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.


Guest Essayist: David Bobb, Director and Lecturer in Political Science | Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship | Hillsdale College

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”

This complaint, however current it might sound, was lodged not against any occupant of the White House.  Rather, American revolutionaries made this claim against King George III in the Declaration of Independence.

Imbued with the “Spirit of ’76,” and given voice by a young Thomas Jefferson, early Americans also indicted the British King in the Declaration “for suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”

The Crown had assumed all legislative, executive, and judicial powers, the colonists claimed.  Thus they declared that the “prince” (King George III) had become a “tyrant.”  And a tyrant “is unfit to be the ruler of a free people.”

To understand Article I of the Constitution—and the entirety of the “supreme law of the land”—you have to understand the argument of the Declaration of Independence.  The Declaration indicts the King for aggrandizing his power at the expense of the people.  It also acts as a blueprint for limited government by making the bold claim that our rights come not from any government but instead from the Creator.

The Constitution, then, gives structure to our liberties—and to limited government.  Article I of the Constitution is the foundation of this structure. Made up of ten sections, Article I is the longest of the Constitution’s seven articles.  Its length should not confuse us, however, for its meaning is clear if we read it carefully.

Article I, Section 1 says that the law-making authority in the national government resides in Congress.  Not in the Crown, and not directly with the people.  We the people should not vote directly on every issue, the Founding Fathers held.  That strictly democratic form of government can too easily lead to tyranny.  Instead, we the people will elect representatives.  This is republican rule, and conduces more to liberty than any other form of government.

The national legislature is bicameral, with a House of Representatives elected directly by the people, and a Senate originally composed of members elected by the state legislatures.  The Seventeenth Amendment, adopted as part of Progressive reforms in the early 20th century, required direct election of senators, a significant departure from the Founders’ Constitution.  Each state, the original Constitution specified, gets two senators (this is the only part of the Constitution today that cannot be amended).

Article I, Section 8 gives an enumeration, or list, of the powers of Congress.  When compared to the anemic Articles of Confederation, which even denied Congress the power to tax, the enumerated powers were quite expansive.  Compared to the scope and scale of congressional authority today, the enumerated powers seem quaint, kind of like a powdered wig or tri-cornered hat.

“That’s all we get to do?  That’s it?”  One can almost hear the response of many members of Congress today if they were to read Article I, Section 8 of the Constitution.  Asked to cite the constitutional justification for the recent health care bill, for example, one member of Congress said he doesn’t “worry about the Constitution on this.”  Another member, the chairman of the House Judiciary Committee, claimed that the legislation was authorized by the “good and welfare clause” (he was probably thinking of the General Welfare Clause of Article I, Section 8, Clause 1)  Still others have cited the Interstate Commerce Clause (I.8.3), while a number have cited the Necessary and Proper Clause (I.8.18).

I hope that we can discuss and debate the constitutional status of the health care law as part of this blog.  Whether you’re a Republican or Democrat, for or against the law, it seems that we should all agree that for a bill to legitimately become law it has to be grounded in the Constitution.  Otherwise Article I doesn’t mean what it says, and the foundation of our liberties is left shaky and unsure.

It’s lately been said that politicians should prepare for elections by abiding by one simple rule, “It’s the economy, stupid.”  The economy is important, to be sure, but I hope that in our national debate, today we can remember most of all that “It’s the Constitution.”  We’d be stupid not to.

Wednesday, April 21st, 2010

Posted in Article I of the United States Constitution, Constitutional Scholar Essays | Edit | 138 Comments »

140 Responses to “April 21, 2010Article I of the U.S. ConstitutionGuest Blogger: David Bobb, Director and Lecturer in Political Science | Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship | Hillsdale College

  1. Richard says:

    This is certainly an enlightening dialogue and many of the comments are well supported. I would like to add that taxes “being applied uniformly throughout the States” is interesting because we certainly do not have a fair tax system as so many pay nothing and get most of the benefits. Our Founding Fathers never intended to have this extreme level of “vote buying” by taxpayers funds. The progressive tax we have today is applied uniformly within the states, however it is not applied uniformly among the people. Whereas a flat tax would do this. A constitutional amendment limiting the tax to less than 15% would take away the congressional power and ability to “buy votes” through entitlements. Another view might be to restrict a citizens vote in any year in which they receive an entitlement exceeding $1000.00 or some similar amount. Niether would be unconstitutional.

  2. Richard says:

    This is certainly an enlightening dialogue and many of the comments are well supported. I would like to add that taxes “being applied uniformly throughout the States” is interesting because we certainly do not have a fair tax system as so many pay nothing and get most of the benefits while a few pay the majority and are constantly asked for more. It is a path to economic destruction. I have visited several socialist and communist nations in my travels and Americans have no idea of the human suffering, death, and poverty of a controlling communist or socialist goverment that always limits the individual freedoms we take for granted. Our Founding Fathers never intended for our “tax system” to have this extreme level of “vote buying” by taxpayers funds or social engineering. Envy is one of the biblical seven sins for a good reason. We have lost our national moral compass as we pit hatred (class envy) against hard work and success. Some citizens with a lacking moral compass want to covet what thier neighbor has. The Founding Fathers wanted to remove the chains of government on the individual and let them strive for thier own happiness and dreams. Progressives were certainly instumental in removing the biblical moral teaching from our schools. The progressive tax we have today is applied uniformly within the states, however it is not applied uniformly among the people. Whereas a flat tax would do this. A constitutional amendment limiting the tax to less than 15% would take away the congressional power and ability to “buy votes” through entitlements. Another view might be to restrict a citizens vote in any year in which they receive an entitlement exceeding $1,000.00 or some similar low amount. Niether would be unconstitutional.
    The constitution also grants power to the federal government to provide for the common defense. If we have to disband the armed forces every two years we would soon be overtaken by our enimies and if Officers we appointed by the states there would be no uniformity within the military. We would have lost WWII if we had to disband after two years, ditto for the Civil War, Revolutionary War, WWI, Korean War. We gain peace through military strength by constantly training, testing, and improving weapons systems so our enimies understand the high price they would pay for trying to dominate or rule our citizens.
    On heathcare, I beleive it violates all aspects of “the Right to Life, Liberty and the Pursuit of Happiness” as unelected goverment workers will decide who and what type of care an idividual may have. (Surgery or pain pills). A citizen can no longer pursue thier individual health choices. Government can directly limit thier life and happiness. I hope this can be repealed as it will cause severe pain to citizens to watch loved ones be denied the proper healthcare because the govenment has to ration care as in all other nations that have moved to socialized government healthcare.
    I look forward to tomorrows comments….

  3. Lillian Harvey says:

    Article 1, Section 7: the process for passing legislation states “..the votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.”

    When House Minority Leader Boehner called for the vote of each individual to be recorded at least one week before the Healthcare vote was taken in the House, and also that night on the floor of the House again, why did the “Speaker” ignore the request or call it “out of order”? It seems to me that it is out of order for the people being represented not to know exactly who voted Yes to this bill. We know all the Republicans voted no, but not which Democrats voted yes or no. It seems to me that this tactic makes things very slippery and murky for those being represented.

    Raymond mentioned needing an amendment to force government to be open. It appears the mechanism for transparency in the votes already in place for 220 years isn’t honored and We the People are left guessing. Someone above mentioned that the devil is in the details. I think God is in the details and this is another one of them for us to look at carefully.

  4. Tammy Beard says:

    Question: If “all Duties, Imposts and Excises shall be uniform throughout the United States;”
    how can there constitutionally be different income tax brackets? Doesn’t seem very uniform.

    This deals with indirect taxes, not income taxes. The indirect taxes must be the same from state to state. In 1913, the Sixteenth Amendment was passed allowing income taxes.

  5. Richard says:

    I wanted to add one thought to my earlier comment on taxes. Actually the Constitution specifically said there will be no tax on individuals (Income Tax), but the progressives worked around this by adding the XVI amendment which will come later in our readings. This Amendment was originally passed to fund WWII and who was going to vote against funds to fight Germany and Japan’s agressive war of world dominance. It was to be repealed after the War but amazingly was not and has been modified to mirror class envy and morphed into a progressive tax on those who work hard and are successful. It will be interesting to hear the history from those who know on this matter as the current administration has openly confirmed the goal of redistribution of individual wealth by the government to whim they choose. It is similar to the british crown taxing colonist hard work to support the royal elitists power and position.

  6. Gitel says:

    @Richard – I’m not sure where you got your information. The income tax was proposed in 1909 and ratified in 1913. That was before WWI, and years before WWII.

  7. Gitel says:

    Actually, I meant to say the 16th Amendment, not “income tax.” There were income taxes before the 16th Amendment.

  8. Kristine says:

    Well-framed question, Debbie Beardsley, to which I say amen! What your blog entry asks is precisely what I would like to know. And in a related sense, Party aparatus in the Houses seem to be causing we the people who are supposed to be represented to feel as though we are being completely ignored! How can this be. How can Representatives be made to represent when they do not even listen? Being only 1/300 millionth of the population and with powerful moneyed interests, how do we know OUR STAND is represented for sure? We suspect, it is NOT. That begs the questions, WHAT DO WE DO ABOUT THAT?

  9. Will says:

    Anna Marie says:
    April 22, 2010 at 12:56 am
    “… in the end we will become a stronger nation, a nation UNDER GOD!!!”

    Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.

  10. Thomas Soyars says:

    I have to disagree with some of what R. B. McGinnis said in relation to the economy. The power to tax, though no direct, capitated or income tax, tariffs, regulation of interstate commerce were not designed to regulate the economy but to pay for the functions of government enumerated in the Constitution. How else were they to pay the debt, their own salaries and the salaries of the militia? Was the intent to fund the limited operations of government laid out in the constitution or was the goal to regulate the economy?

    Another item relates to the quote relating to the KATZENBACH v. McCLUNG, 379 U.S. 294 (1964) case. The court ruling said “Confronted as we are with the facts laid before Congress, we must conclude that it had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce….” Note the term rational basis. It was not decided on a constitutional basis but on what they could rationally support. The court has continued to swing on the issue of what is allowed under the commerce clause. Cases have been decided that operating a steamship on a river within one state is interstate commerce and subject to regulation. Minimum wage, child labor, and agricultural relief laws were all found to be items that the U.S. government had no right to regulate under the commerce clause. Mining, liquor, oil and electrical production were all deemed to be outside the commerce clause while meat production and wheat were found to be within (production of wheat for one’s own consumption could be subject to national quotas because that could impact national wheat prices). After, Gibson v. United States, 166 U.S. 269 (1897) the court rarely ruled on the commerce clause. During the New Deal the court changed the focus of how the court viewed commerce and what was to be regulated. A central issue was whether the courts or the legislature should decide what commerce is and the courts began deferring to congress saying that determining whether legislation impacted commerce was a legislative function. At question was whether it was more appropriate to address the issue through the courts or the ballot box and they basically fell on the side of the ballot box, thereby abdicating their responsibility to be a check and balance over congress. Finally, the Supreme Court in United States v. Darby Lumber Co., 312 U.S. 100 (1941) said that the 10th Amendment is but a truism and was not considered to be an independent limitation on Congressional power, thereby essentially ruling that congress is not limited by the Constitution.

    I agree with the decisions of the court in the cases of Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) and Daniel v. Paul. 395 U.S. 298 (1969) but not based on the commerce clause. For that, I go back to the preamble and rely on establish Justice. Slavery, the treatment of Native Americans, and Asians Americans during World War II and

  11. Thomas Soyars says:

    Debbie, there is no prohibition on the President proposing legislation to Congress or lobbying for specific items. the Constitution prohibits the President from passing legislation or acting as a judge over it other than by veto. The problem arises when one party holds the presidency and both houses of congress by a super-majority. In that case the president can propose legislation and have limited resistance.

  12. Ann says:

    How are the classes for Senators determined? Is it by State? My State has 1 class I Senator and 1 Class 2 Senator. Does that ever change? Am I correct in assuming the class only has to do with making sure only 1/3 is up for re-election at a time? They all serve 6 years regardless of class right?

  13. I must confess that I’m going to have to reread after I finish this 90/180. I’ve read the Amendments, but this is the first time I’ve read the Articles of the Constitution. Apparently I’m not the only one having a little trouble with the double negatives. I’ve been telling everyone I know about this, hopefully they will be able to go back on this Web site to the days they haven’t read to catch up. I love the dialogue and the experts input on the Constitution. I have just recently purchased “Original Intent” by David Barton I haven’t read it yet I’m trying to keep up with all the reading recommendations. I do know that “America’s God and Country” by William Federer is a must have, I love this book. It is an Encyclopedia of Quotations from our Founding Fathers and others. There is no question what the intent of the Constitution was and that it we were designed to be a Christian Nation.

  14. Thomas Soyars says:

    One last comment on commerce, in Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), the U.S. Supreme Court held that marijuana gone at home for personal use was subject to the Commerce Clause. Justice Thomas dissented saying “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers.”

  15. Robert Shanbaum says:

    The question was raised as to whether the health care reform bill, as a bill requiring appropriations (whether that makes it a “bill for raising revenue” notwithstanding), did not have to originate in the House.

    The question may be mooted by the fact that it did originate in the House, having been introduced as H.R.3590 on 9/17/2009 by Rep. Rangel – even though it eventually became known as “the Senate Bill.”

    But there is an interesting Constitutional question here: the original contents of H.R.3590 were completely replaced by amendment in the Senate. So, did the bill “originate in the House?”

  16. Debbie Beardsley says:

    It just seems to me that by the President strong arming members of Congress or bribing them to vote the way he wants he is in effect legislating. Isn’t Congress supposed to represent the people and not the President?? Once it is submitted to him he can then decide to sign it or veto it but until it gets to him he should keep his hands off.

  17. Spider says:

    I have seen a few comments on the 17th Amendment, and thought I might expand on it here, as well as give a couple of reasons why I believe it should be repealed. We will get into the Amendments when we read them on Monday, April 26, but I wanted to include this here, as it pertains directly to Article 1, Section 3, Clause 1.

    James Madison explained States representation in the Federal Government as such:

    “Whenever power may be necessary for the national government, a certain portion must be necessarily left with the states, it is impossible for one power to pervade the extreme parts of the United States so as to carry equal justice to them. The state legislatures also ought to have some means of defending themselves against the encroachments of the national government. In every other department we have studiously endeavored to provide for its self-defense. Shall we leave the states alone un-provided with the means for this purpose? And what better means can be provided than by giving them some share in, or rather make them a constituent part of, the national government?”

    At the time the Constitution was written, U.S. Representatives were to represent the people and were to be elected by the general population of a state by popular vote.

    U.S. Senators were to represent the States and were to be elected by the State Legislatures. From Wiki: “It was believed that while an unqualified candidate might win a popular-vote majority through demagoguery or superficial qualities, the legislature, which could deliberate on its choice, and whose members had been selected by their constituents and had experience in politics, would be safe from such folly.”

    The 17th Amendment took away the States representation by requiring that U.S. Senators be elected by the general population of a state, effectively reducing them from an equal partner with the Federal Government to, at best, another Representative, and at worst just another lobbyist, vulnerable to special interests influence, which has resulted with the loss of State Sovereignty and States’ Rights.

    There were two main reasons the 17th Amendment was adopted in 1913; One was the deadlock of State Legislatures when electing U.S. Senators. The other was the corruption of the State Legislators.

    One possible protection from dead-locked State Legislatures is the provision that if a State Legislature does not fill a vacancy or elect a U.S. Senator within say, 30 days for example, the Governor shall appoint the U.S. Senator.

    Our protection from corrupt State Legislatures are open caucuses, campaign disclosure statements, term limits, and the fact that we now have highly visible public information, freely accessible with the World Wide Web.

    Thanks for letting me expand on this subject. Tell me what you think, and keep up the great discussion!

  18. Robert Shanbaum says:

    @Gitel, a minor correction: there were indeed income taxes prior to the XVIth Amendment, from 1862-72, and again in 1894-95, when taxes based on income derived from property (interest, dividends, rents) were ruled unconstitutional by the Supreme Court in Pollock v. Farmer’s Loan & Trust (by a 5-4 vote!).

  19. Sharon Pharr says:

    It seems to me so far, that the Congress was to hold a few specific roles and jurisdictions, and the people, then the states everything else. Things are turning upside down. I think we should repeal the 17th amendment, return the selection of Senators to the states, and expand the 22nd Amendment, to include restricting terms of the members of Congress. The wisdom of that provision is shown in the career politicians that now dominate Congress, with power empires, and inflated influence. This would also attract talented people who have successful careers in other areas to serve. I also believe that in returning power to the states and local jurisdictions, it would be easier to weed out the potentially corrupt.

    I have a question, if the Healthcare Bill coerces a citizen to buy insurance under penalty of fines, and enforced by the IRS, doesn’t that make the insurance payment a form of taxation, even though the money goes to a 3rd party, the insurance company?

  20. Philip Thorrez says:

    I’m new at blogging and if my protocols and forms are incorrect, please excuse me:
    I realize I’m a bit late to this reading but have to ask:
    @Thomas Soyars said: “Finally, the Supreme Court in United States v. Darby Lumber Co., 312 U.S. 100 (1941) said that the 10th Amendment is but a truism and was not considered to be an independent limitation on Congressional power, thereby essentially ruling that congress is not limited by the Constitution.”

    This is the scariest comment I’ve ever heard and I wonder: has there been much further testing of this ruling and how entrenched in precedent is it? I mean “a truism”?! How much clearer does it need to be that this amendment was MEANT to be a restriction of federal power.

  21. Spider says:

    @Philip Thorrez: Welcome to the discussion – better late than never. Your “protocols and forms” are just fine. Leaving comments in a public forum such as this is just like any other public interaction; be polite and civil, and you’re way ahead of the game.

    As to your question, might I suggest taking a look at West’s Encyclopedia of American Law for a comprehensive overview of the Supreme Court’s various interpretations of the 10th Amendment through history.

    It’s really pretty stunning to realize just how often the 10th Amendment, something Thomas Jefferson once described as “the foundation of the Constitution,” has been virtually ignored or trivialized.

    I truly hope the upcoming challenges to the President’s health care reform law will once again put some more authority back into the 10th Amendment. I’ll probably be disappointed, but one can ‘hope,’ right?

  22. Anthony Viola says:

    Will says “Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.”

    You missed ths: “In the Year of our Lord one thousand seven hundred and eighty seven..”

  23. AllisonW says:

    Interesting fact I thought to share:

    According to Article I Section III, the Vice President, President of the Senate, can vote on any piece of legislation whenever the members of the Senate are “equally divided.” So whenever the vote is split 50-50, the Vice President can essentially decide the fate of the bill.

  24. […] April 21, 2010Article I of the U.S. ConstitutionGuest Blogger: David Bobb, Director and Le… […]

  25. Taylor Michael says:

    A very intriguing paragraph I discovered in the first article is the last paragraph in Section 9.
    It says ;

    “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”

    What I find so interesting about the subject is the fact that America already declared itself independent from Monarchal England, however the founding fathers make sure that we as a country do not associate ourselves at all with any Monarchy, and if someone does, than the United States shall not recognize it at all, and they will not accept any “present … of any kind whatever, from any King, Prince, or foreign State”, thus putting the icing on the cake, so to speak, of total detachment from any kind of English Monarchal society.

  26. Kristine says:

    I would like to understand the electoral college better from Article 1, section 2.

    I realize we are now beyond that, but it is not clear to me if we directly elect our representatives as I thought we did, or if electors are doing the electing .

    If anybody has insights and links, please reply.



  27. Kristine says:

    I figured it out. Article 1, Section. 2 first paragraph meaning of Electors refers to a state’s voters and not electors in the electoral college for the presidential elections. That is what I thought; however, for a while there I thought I might have been wrong all my voting life. I’m relieved to have this cleared up and it was good to re-read Articles 1 and 2.

  28. Bob Greenslade says:

    Kristine-hope this helps.

    What are the constitutional provisions for the electoral system?

    The electoral process is set forth in Article II, Section I, Clauses 2-4 of the Constitution for the United States. Clause 3 has been superseded by the 12th Amendment as ratified by the several States in 1804. Provisions of the 12th Amendment have been superseded by the 20th Amendment as ratified by the States in 1933.

    Do the American people vote directly for a President and Vice President when they cast their ballot?

    No. When the American people cast their vote in a presidential election they are actually voting for individual within their State called an “elector.”

    Who are the electors?

    The electors are representatives just like the members of Congress. Unlike members of Congress who are elected for a specific term of years and cast numerous votes while in office, electors perform a single function once every four years. They are entrusted with the responsibility of voting for the President and Vice President of the United States.

    How are the electors chosen?

    The legislature of each State is authorized by Article II, Section I, Clause 2 of the Constitution to prescribe the mode for appointing its electors. State election laws generally entrust that duty to the various political parties because each party has a slate of electors pledged to their candidates. Thus, if a State has five political parties qualified for the ballot, it will have five separate blocks of electors―one block for each political party.

    How are the electors in each State chosen to vote?

    The electors chosen to vote for each State are those of the political party that wins a plurality of the popular vote within the State. For example. If an Independent Party candidate wins the popular vote in California by one vote, then that party’s slate of electors are elected to vote for the State of California. In Maine and Nebraska, two electors are chosen at-large by the statewide popular vote and the rest are selected by the popular vote in each congressional district. This allows for a split slate of electors to be chosen in those two States.

    In the event of a tie in a State’s popular vote, the laws of that State would determine the procedure for breaking the tie. If there was still a tie after a re-count, there would probably be a run-off election to determine the winner.

  29. Lillian Harvey says:

    Thomas, Philip & Spider, well said! I appreciate the real push back to what you’ve all implied is the trivializaion of the 10th Amendment. Almost half of the States are involved at this time, 42%. In an earlier post, I was reacting to these readings by thinking a Constitutional Convention was needed to solve some of the problems. Now, I feel that some amendments may need to be repealed and others have their language clarified to reflect life today, like the recess appointments clause. But even allowing a small opportunity for any group to do away with this incredible document is inconceivable to me. No convention for sure. But calls for Constititutional language that fortifies Amendments like the 10th, oh yes! I love that our clarifications and corrections are recorded into the document as amendments. As humans, we make mistakes, learn and grow. This amazing document records our growth as a free society, correction & forgiveness of mistakes included. The Federal gov’t has taken powers from the States never intended for it. No matter how long it takes, we can’t give up the fight to re-fortify the 10th Amendment. Enough is enough.

    I love the phrase, think globally and act locally. It is a modern day sound bite for James Madison’s eloquent explanation of where power really resides in a free society. A state or community problem may become part of the national narrative, but the way to resolve it works best as locally as possible. Let each community see the problem through its own special lens, apply meaningful solutions and the people are served well. If a national element is needed, add an amendment to the Constitution. It takes time to do that and, if the locality can’t resolve the problem themselves, the final amendment will help the process along.

    Taylor, I feel your post underscores the “kick in the gut” reaction most people have when they see any of our Presidents bowing to kings or foreign rulers. They represent the United States of America – We the People. We the People do not bow to kings. We do not serve their will. Americans shake hands in greeting. If these kings do not want to shake hands, fine. But no bowing in our name, thank you very much.

    Allison, great question! If a bill must be passed by 2/3 of the Senate, how is a tie ever significant? The bill passes or it doesn’t. Too simple?

  30. Bob Greenslade says:

    Philip Thorrez-the reason the 10th Amendment is a truism can be found in the words of James Wilson.

    In October of 1787, in a speech at Independence Hall, Wilson, a Federalist from Pennsylvania, explained the proposed constitution and answered some of the criticisms being leveled against it. In his speech, Wilson succinctly stated why a bill of rights had been omitted from the proposed constitution. He also explained the system of limited government that would be established if the document was ratified:

    “It will be proper…to mark the leading discrimination between the State constitutions and the Constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve…if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything that is not reserved is given; but in the latter the reverse of the proposition prevails, and everything that is not given is reserved.

    This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence. For instance, the liberty of the press…what control can proceed from the Federal government to shackle or destroy that sacred palladium of national freedom? * * [T]he proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject—nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.”

    Wilson, who had unsuccessfully advocated a strong national form of government in the Federal Convention, clearly understood the system of limited government that would be established by the proposed constitution. Since the federal government would be granted limited enumerated powers, every power not granted would be denied irrespective of whether the document contained a bill of rights.

    Thus, even if the 10th Amendment, which was part of the Bill of Rights, had not been adopted, the principle, as stated by Wilson, that “everything…not given is reserved” would still be in operation-just not enumerated.

    The Amendment is a re-statement and affirmation of the principles of limited government and enumerated powers. They exist independent of the 10th Amendment.

  31. Robert Shanbaum says:

    @Lillian – Here’s an historical note that you may find interesting, since you mentioned shaking hands. After having been inaugurated as president, Washington refused to shake hands, thinking it beneath the dignity of the office.

    Also, for a bill to finally pass the Senate does not require a 2/3 vote – the procedural step that requires a 2/3 vote is to end debate on a motion (called “cloture”, a feature of the rules of the Senate, which you now know are left up to the Senate by the Constitution), which is a necessary step that precedes an actual vote on whether the motion shall be adopted or rejected.

    Yesterday, for example, in a vote to end debate on a motion to allow a financial reform bill to proceed to the floor (which is itself a required procedural step) the yeas came up short of the 60 votes required by the rules… so technically, I guess you could say that the debate on that motion will go on until the end of the current session, at which point, the motion vanishes, having never been directly voted upon.

    As mentioned, the only relation of Congressional rules to the Constitution is that it explicitly leaves them up to the each House. But I rather doubt that any of the participants at the Philadelphia Convention would have aniticpated a rule effectively requiring a supermajority in the Senate.

  32. Robert Shanbaum says:

    @Lillian – I neglected to mention Washington’s preferred mode of greeting, given that he did not shake hands.

    He bowed.

  33. Debbie Beardsley says:

    Re: Anthoney Viola – I do not think there was any reference to God intended by placing Year of our Lord before a date. It was a common term used at the time and is included in the Julian and Gregorain Calendars to reference the epoch after Jesus was born. Anno Domini is the Latin way to say the same thing.

    Stop looking for religious reference where none was intended. Thats how we get in trouble and move very far away from the Constitution.

    I fully believe the founders intent was not to support a specific belief or church but to allow everyone the freedom to choose what they belive in.

  34. yguy says:

    ‘…the 10th Amendment is a truism…’

    ‘Thus, even if the 10th Amendment, which was part of the Bill of Rights, had not been adopted, the principle, as stated by Wilson, that “everything…not given is reserved” would still be in operation-just not enumerated.’

    Similarly it could be argued that Congress would have no authority to legislate against freedom of speech and so on had the first amendment not been ratified, but I don’t think I’d call it a truism; and if Justice Marshall’s observation that “[i]t cannot be presumed that any clause in the Constitution is intended to be without effect” is accurate, I think we may rest assured that the framers of the tenth amendment considered it as necessary as the other “declaratory and restrictive clauses” in the Bill of Rights.

  35. JoeSwiss says:

    Art 1, S 10: No state shall, without the consent of Congress, … or engage in War, unless actually invaded …

    This was a point I had missed.

    First, it seems a state may engage in war with the consent of Congress.

    Second, it seems a state may engage in war without the consent of Congress once it has actually been invaded.

    Seem to be relevant points in the current contest of opinions over Arizona’s late legislative actions. Arizona is currently under invasion by illegal aliens.

  36. al williams says:

    Can anyone explain article 1 sec 9 para 4
    “No Capitation, or other direct, Tax shall be laid,unless in Proportion to the Census or Enumeration herein before directed to be taken.”

  37. Susan Craig says:

    Yes they did not want to tax incomes (head tax).

  38. al williams says:

    So,was this section repealed by the 16th amendment?

  39. Ralph T. Howarth, Jr. says:

    Will says:
    April 22, 2010 at 1:59 pm

    Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.
    True; but a strict constructionist must be thorough and construct from all the organic documents declared by the First Congress in the midst of passing the Bill of Rights.

    They are:

    1) The Unanimous Declaration (of Independence)
    2) US Articles of Confederation
    3) The Northwest Ordinance
    4) US Constitution

    Such can be found reproduced here and is at the very beginning of the US Code 1.

    The very first congress instituted the Organic Laws declaration as a reference of the founding documents of the US as a collection foundational proofs of where rights, laws, and governance comes from. The US Constitution alone does not stand alone and provide enough information to describe what the legal basis of the document stands on. Legal basis did not just appear out of thin air but is predicated on legal terms and underpinnings found in the Constitution that correlate to the English Common Law and the history of constitution writing.

    Inspection of the Organic Laws finds the following words concerning religion and morality:

    Year of our Lord (Constitution, Articles, Ordinance)
    Divine Providence (Declaration)
    Creator (Declaration)
    Nature’s God (Declaration)
    Appealing to the Supreme Judge of the world (Declaration)
    the Great Governor of the world (Articles)
    Religion (Bill of Rights, Articles, Ordinance)
    Establishment of Religion (Bill of Rights) [aka: state run church]
    Morality (Ordinance)
    Mode of worship (Ordinance)
    Religious sentiments (Ordinance)
    Blessings of Liberty (Constitution) [blessings: lit. “anoint with blood”]
    Good Behavior (Constitution, Ordinance) [syn. “morality”]
    Common law (Bill of Rights, Ordinance) [that law contains many Biblical references]

    Remember also, that some states would not ratify the Constitution without assurances of a bill or rights, which includes free exercise of religion. If you strictly construct just from the text of the Constitution alone without the amendments, you can rest assure that the Constitution would not have been ratified and be moot. The Bill of Rights had to be pushed for ratification quickly to head of a call for another constitutional convention that would have rewritten the constitution. Had that movement been successful, then it may have happened that the original would have been another anal to the Organic Laws and we have a different constitution today.

    So for a strict constructionist to stop right at the Constitution and observe Jesus and God is not mentioned, and to possibly excuse Lord as being a cultural custom, and not consult supporting text, is akin to taking out an insurance policy and saying that any riders, insurance laws, and governing policies have no place in insurance governance and insurance claims.

  40. Ralph T. Howarth, Jr. says:

    @yguy — James Madison, and other Federalists, contended that the Constitution did not need a bill of rights because it was strictly a positive law document: what the federal government can do. He contended that introducing a negative law document such as a bill or rights: what the federal government cannot do, would wiggle leave room for creative inventions of new powers of government by implication and completely bypass the amendment process.

    @al williams says: so,was this section repealed by the 16th amendment?
    –Capitation tax is a head tax…not exactly an income tax. Such was more akin to a poll tax or census tax. A direct tax essentially was any tax on property like real estate or durable goods; hence the federal government does not do property taxes; but such was not entirely prohibited. If the federal made a capitation or direct tax scheme that was proportional to actual populations in a state, then the federal could lay such a tax and it would be regardless of a person’s level of income. When the income tax amendment came along, it removed the census proportion requirement on that form of tax as it would be construed as a direct tax on property being income considered as a form of your property or estate. For perspective: an indirect tax would be akin to a sales tax as a tax on commerce.