Category Constitution

So you call yourself a Patriot?

It seems that everywhere you turn on the internet, someone is calling himself a “patriot.”  There are patriots, patriot groups, patriotic sentiments, patriotic language, and the list goes on.

But are all of these “patriots” operating from the same definition of the word? Does it even matter?

Words do matter.  The more complacent we become about the use of the English language, the easier it becomes for the opportunists and the more devious among us to subtly (or not so subtly) hijack the language to suit their own nefarious purposes.

This can lead to very dangerous and/or counterproductive results.  Take the co-opting of the Tea Party movement by the establishment as an example.  Because most will consider the “Tea Party” movement as patriotic on faith (thanks to clever marketing), little to no research or investigation is done before carrying the banner, or doing work on behalf of, any group labeled “Tea Party.”  While the sentiment of those following groups like this is well-intentioned, it does not absolve us of the responsibility to “think before we act” to ensure our efforts are truly constructive and effective.

So for this reason (among others), I am placing a stake in the ground to define how I evaluate whether someone or something is “patriotic.”

Let’s start with Webster’s definition:

PATRIOT

A person who loves his country, and zealously supports and defends it and its interests.

Webster’s Dictionary, 1828

There is a lot to digest in that definition dating back nearly 200 years.

“A person who loves his country…” 

When he used the word “country,” is Webster speaking of a chunk of land, a government, a people, or some combination of the three?

Digging into some of Webster’s definitions of “country” and using the context from the remainder of his definition of “patriot”, I believe the following definitions fit best:

 

  1. The kingdom , state or territory in which one is born; the land of nativity; or the particular district indefinitely in which one is born.(as it applies to natural-born citizens)
  2. a region of permanent habitation (as it applies to naturalized citizens)

We can see that Webster is not speaking about government when he refers to “country”.  He is clearly referring to a political jurisdiction that also includes a geographic boundary.

But how are the geographical boundaries of that land determined?  Well, in the case of our country the geographical boundaries are derived from the original thirteen states who “form[ed] a more perfect union” and the various annexations since then that are pursuant to Article IV, Section 3 of the U.S. Constitution which is the basis for our political jurisdiction.

But what is a country without its people?

Merely a swath of land.  Therefore, a patriot who “loves his country” by inference loves his fellow citizens as part of that country.  To substantiate this assertion, let’s look at the case of veterans of our armed forces.  Each of them volunteers to make the ultimate sacrifice, if needed, to defend his “country”.  God-given common-sense tells us that they don’t do this merely for the land, but for their loved ones who inhabit the land, and the pursuit of their livelihoods to support these loved ones once their noble service to our country is concluded.

By the way, in order for anyone to enlist or be commissioned as an officer in the armed forces of the United States, they are required to affirm that they will “…support and defend the Constitution of the United States against all enemies, foreign and domestic…”

Continuing with Webster’s definition of “patriot”…

“…and zealously supports and defends it…”

The word “zealously”, in my opinion, is one of the two major distinctions that I believe are lost in the current, myriad, and tepid interpretations of the word “patriot.”

According to Webster, zealously is defined as “with passionate ardor; with eagerness.”

In no interpretation of the word “zealously” is one left believing it can be demonstrated passively.  To be “zealous” about something requires active and enthusiastic work (or “animated” as Webster also describes the word “passionate“).

Isn’t it interesting that to define the activities of a patriot, Webster uses some of the same words that have been used since 1789 to codify our oaths of office pursuant to Article VI, Section 3 of the U.S. Constitution:  “support” and “defend”.  In fact, the very first section of the very first Act of Congress was to establish this oath.  This is no coincidence.

It seems that all roads lead back to the Constitution–the nexus of those characteristics that define a patriot in the United States of America.

Clearly, to our Founding Fathers and Framers of our Constitutional Republic, the acts of “supporting and defending” the Constitution as written and with their intent, was of paramount importance.  After all, the Constitution cannot defend itself.

Finally: “…and its interests.”

This means “in the interests of the country”.  Again, since a chunk of land cannot have interests, the implication is that a patriot supports and defends the interests of the citizens of the country.  This is distinct from the interests of a government or a political party.  Because our government’s scope is limited to enumerated powers (authority) by the Constitution, there can be many situations that a patriot must support and defend that will fall outside of this scope.  This concept is summed up by the phrase “America First” but includes the principles of “Allegiance and Protection” and federalism.

So far the characteristics that define a patriot are:

  • Citizenship–A citizen of the United States who:
    • Activity–will actively and passionately support and defend:
      • the Constitution of the United States of America against all enemies foreign and domestic, and
      • the interests of his fellow citizens ahead of any other nation’s interests thereby demonstrating his love for his countrymen.

Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it.

–Thomas Paine

So what does it mean to “support and defend” the Constitution?

This is the second major distinction between the common use of the word patriot, and my understanding of the effective definition.

Again from Webster’s 1828 definitionSupport – To vindicate; to maintain; to defend successfully; as, to be able to support one’s own cause.”

A “patriot” cannot passively sit by as the Constitution is attacked, undermined, usurped, infringed upon, or directly violated and still claim to be supporting it.  It is not enough to be mad about it.  But this begs the question: “how will one know if this is happening?”

There is a two-part answer:

Thomas Paine

Thomas Paine

  1.  A patriot must pay attention to politics in order to know something is afoot
  2.  A patriot must know and understand the Constitution to determine if it is in jeopardy

And once a patriot becomes aware of such an attack on his Constitution, by his oath of allegiance, he is committed to a course of defending it until such time as the threat or violation is neutralized.

This is a significant undertaking, but we were warned by Thomas Paine who said:

“Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it.  “

So be very careful when calling yourself a “patriot” for you will have committed to course that will last your entire lifetime.

Truth be told, all who pledge allegiance to our Republic are duty-bound to “support and defend” it, but by proclaiming to the world you are a patriot, you receive a double-dose of scrutiny.

But while this is a heavy burden to bear, you do not have to do it alone.  Working together with other patriots in an organized, common direction and aligned to the same strategy makes for more effective use of our time in “support[ing] and defend[ing] the Constitution of the United States against all enemies foreign and domestic.”

Visit http://www.PatriotCoalition.org/join-us to learn more.

Read More

Article V: Defend not Amend

It is called by many names:  Constitutional Convention, Con-Con, Convention of States, Article V Convention.

But just because we can have one, doesn’t mean we should have one.  In fact, the opposite is true.

Fox News recently published an article in their Politics section entitled “States’ rights advocates eye convention to bypass Congress, amend Constitution.”  As the title implies, the article discusses the efforts by what they refer to as “States’ Rights advocates” to call for a “convention of states.”  Right out of the gate, the deception begins–be it intentional or simply due to ignorance and lazy reporting.

With all of these references to the states, you would think that an Article V Convention (as it is most precisely called) is controlled by the states.  However, this is not the case.

Let’s review exactly what Article V of the U.S. Constitution says.

The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents, and purposes as part of this Constitution when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”  Article V, U.S. Constitution

So there are two phases to the amendment process.

A) Amendment Phase

B) Ratification Phase

Additionally, there are 4 types of actors involved.

  1. Congress
  2. State Legislatures
  3. National Convention
  4. Conventions in the States

 

ArtV - Phases and actors new

 

Let us set aside the case in which Congress proposes amendments, since that is not being discussed in this article.  The next case in which an amendment can be proposed initiates with the state legislatures.

The Congress… on the application of the legislatures of two-thirds of the several states shall call a convention for proposing amendments…

This is the “convention” that is referred to when you hear all the various names of an Article V Convention including “Convention of States.”  And this is where the involvement of the states ends until the ratification phase.  While proponents of an Article V Convention attempt to deceive the general public (and uninformed state legislators) into thinking that a “Convention of the States” is comprised of the several states, it is not the case at all.

Notice that in the language of Article V, two-thirds of the state legislatures must apply, but Congress is the actor who “call[s] a convention for proposing amendments.”  This is a significant point.

 

ArtV - Convention called new

 

 

How are the delegates selected? What are the rules of the convention?  How many votes does each state or delegate receive?

For the answers to these, we need to refer to another clause of the U.S. Constitution–specifically Article I, Section 8, Clause 17–otherwise known as the “Necessary and Proper” clause.

The Congress shall have power…To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”  U.S. Constitution, Article I, Section 8, Clause 17 (Emphasis added)

As you can see, because the power of Congress to call an Article V Convention is vested by the Constitution, Congress may decide the how delegates are selected, how the rules are established, and potentially how many votes each state or delegate will receive.

So the bottom line is that this will be a federal convention, not a “Convention of States” as the name implies.

So why does Fox News align this movement with States’ Rights?  Part of the answer lies in the quote from the Texas Public Policy Forum president:

The American people are mad and they’re looking for a way to say, ‘No more,

the U.S. Constitution is not a self-enforcing document

Proponents of an Article V convention are attempting to tap into this anger; specifically in those who, without researching the actual mechanics of a convention, will latch onto the rallying cry of “States’ rights!”  Unfortunately, as I have described above, states may have nothing to do with the actual proposing of amendments which will happen on the floor of the convention by the delegates Congress authorizes.

Even Fox News in their shoddy reporting gets it wrong when they say, “Article V of the Constitution allows a minimum of two-thirds of the states to call for a convention to propose amendments, in turn going around Congress. ”  Article V does not “allow.. the states to call for a convention.”  Only Congress can do that as it is plainly written in Article V.

While there are many other dangers inherent in an Article V conventions, I will only briefly mention a couple here for you to consider and then move on to more important matters.

  1. An amendment to the Constitution can change just one comma or everything except one comma.  Despite the claims to the contrary, there is no such thing as a limited Article V Convention.
  2. Four simple words can change everything “States’ sovereignty is abolished.”  Although lawyers today would add 40, 400, or even 4,000 words to obfuscate this simple concept.

The sad part of this entire discussion to this point is that it is all smoke and mirrors.  Proponents of an Article V Convention misdiagnose the problem and then proceed to prescribe the wrong solution hoping to keep your attention away from the root causes of our failing republic.

The Wrong Solution to the Wrong Problem

what we have is a people problem, not a document problem

Anyone with an ounce of God-given common-sense will tell you that the first step to solving a problem is correctly identifying the problem.

So what do the advocates of an Article V Convention tell us is the problem?   An out-of-control federal government.

Let’s break this down…

Our republican form of government is made up of the people we elect and their appointees.  To be precise, it is not the government that is out-of-control; it is our public servants who we allow to run the government that are exhibiting “out-of-control” behavior–individually and en masse.  Our minimum expectation of these officials (elected and otherwise) should be to “support and defend the Constitution of the United States against all enemies foreign and domestic.”  The problem is that they are not.

They do not support and defend the Constitution because “we the people” do not hold them accountable when they fail to do so.  Unfortunately for the lazy, complacent, and apathetic Americans, the U.S. Constitution is not a self-enforcing document.

In “The American Crisis, No. 4” written in 1777, Thomas Paine says:

Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it.

Advocates of an Article V Convention are trying to convince us that there is something wrong with the Constitution.  That if we can just make a few tweaks, everything will be back on track.  But, what we have is a people problem, not a document problem.

So after they have misdiagnosed the problem as an out-of-control federal government (or public servants in effect), proponents of an Article V convention propose that in order to fix this “problem” we should change the Constitution.

But, if public servants won’t uphold the Constitution, why is amending it the solution?

Will we add an amendment that says “We really mean it this time!”?

Should we then amend the 10 commandments because people won’t obey them?

The real problem is not an out-of-control government, nor even our public servants.  After all, we already have term limits on our elected officials…they are called elections!

The real problem is a complacent public who would rather choose the simple solution of allowing professional, well-organized, and well-funded organizations to promote an Article V Convention, because it gives us the feeling that something is being done rather than do the hard work of staying informed and holding our public servants accountable for their individual actions.

The root problem with the Republic is that “We the People” are not holding our public servants accountable.  Until we hold them accountable, no change to the Constitution will matter.  Once we hold them accountable, no change to the Constitution will be necessary.

Read More

Judicial Shell Game: Kim Davis and the Case of the Missing Statute

The other day, as I scanned my news feed on Facebook, I read a comment that caught my eye.  In it, a woman who was clearly in support of marriage between sodomites said she wished she could punch Kim Davis in the throat.  My first thought was, “that seems like a visceral reaction to a woman she had probably never met!”  When I looked closer, I noticed that she was not the only one who had this reaction.

So I stopped and took the time to watch the video that elicited this type of reaction.  In it, Kim Davis was just released from jail and walked to a microphone where she 1) thanked her supporters, 2) told them that she loved them, 3) gave God the glory, 4) affirmed the strength of her supporters, 5) acknowledged that God knows each of us intimately, and 6) encouraged them to “keep pressing”.

Nothing that should cause such a reaction from a rational individual.  So that is when I began to consider the possibility that it wasn’t the video to which they were reacting, but more than likely the strong moral stand that Mrs. Davis took; and her willingness to stand up to unlawful orders.  Next, it occurred to me that these social media commentators probably did not have a firm grasp how federalism works, or the doctrine of “separation of powers” as codified in the U.S. Constitution.  For that matter, depending on the quality of their education, many of them may not have ever read the Constitution or remember it well enough to understand how the 1st, 5th, 10th, and 14th Amendments apply or don’t apply.

I guess I cannot blame them…neither did the attorneys and judges in the case!

So, let’s dive into this case and reveal why, for several reasons, Mrs. Davis should never have been incarcerated.kim davis

Mrs. Davis first appeared on the legal radar when she was sued in Federal District Court for choosing not to issue marriage licenses to sodomites for religious reasons.  In the end the court ordered that Mrs. Davis was prevented from maintaining her policy of “no marriage licenses.”  At best, this order amounts to the circumvention of an elected official by a judge to prevent her from representing her constituents.  At worst, it compels an elected official to disregard her constituents and perform a specific act against her judgement.

At this point in the discussion, it is important to note that Mrs. Davis’ job, when issuing marriage certificates, is precisely to discriminate: against the mentally disabled, against the currently married, against more than 2 people, against “members of the same sex,” etc.  That is the subject of an entire sub-chapter in the Kentucky Revised Statutes 402.020.

Imagine if a federal judge ordered your congressman to vote a certain way on a bill (oh, I don’t know….an immigration bill perhaps) because to do otherwise would violate an equal protection decision by the Supreme Court!  In both cases, the office-holder was elected to represent a constituency’s principles and values, yet those principles and values are subjugated to the whims of one man who is unelected.  This is scary stuff, gang!

This brings us to the meat of our discussion.

law book

Reason #1:  What law was broken?

The reason given for Mrs. Davis’ incarceration was “contempt of court” implying that she did not comply with a “lawful order” of Judge Bunning, who presided over the case.  The problem is that the judge’s order was not lawful.  He did not cite one law that Mrs. Davis was violating through the course of action she chose in her elected position as county clerk.  In his ruling, Judge Bunning wrongly assumes that Mrs. Davis must issue marriage licenses in all cases.

The Supreme Court’s opinion in Obergefell v. Hodges relied on yet other Supreme Court opinions that claim that the Equal Protection and Due Process clauses of the 14th amendment guarantee the right to marry.  Yet, there was no discussion of the distinction between a religious ceremony which truly cannot be infringed, and a civil document (or license) which is at the discretion of the states to grant according to their own laws.

There are no rights, privileges, or liberties for sodomites seeking to receive marriage licenses in Kentucky that are a) secured by the Constitution, and b) are being deprived.  In fact, it is quite the opposite! There are laws that restrict sodomites from receiving marriage licenses, but none that restrict them from performing a ceremony in a religious setting.  The bottom line is anyone who wishes to receive a marriage license (including the parties to the law suit), must follow the state laws that have been properly enacted.  This brings us to Reason #2…

Reason #2: States’ Rights and Federalism. tenth amendment

The 10th Amendment of the U.S. Constitution states, “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  Granting marriage licenses is not a power that the Constitution delegated to the United States, but it is also not prohibited by the Constitution to the states.  As a result, the power to issue marriage licenses, as well as any guidelines and restriction, is reserved for each state to decide individually.

In the case of the Commonwealth of Kentucky, the issue was fundamental enough to codify in the state Constitution in Section 233A which states, “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”  This section in the Kentucky Constitution is further supported in the Kentucky Revised Statutes 402.020(1)(d).

The crazy thing to remember about all of this nonsense is that it is essentially a shell game.  There is no law that is central to the case against Mrs. Davis!  The supreme court case Obergefell v. Hodges is not a law–only an opinion of the Supreme Court.  Judge Bunning’s order was unlawful because it was not based on any federal or state law that mandates the granting of marriage licenses.  A judge cannot simply give any unlawful order he comes up with, where if a citizen refuses, he can unilateral send them to prison.  This is exactly why we are protected by the 5th Amendment against the deprivation of liberty without due process which brings us to Reason #3.

jefferson on jury trials

Reason #3: All trials must be by jury. 

Article III, Section 2 of the U.S. Constitution states, “The trial of all crimes, except in cases of impeachment, shall be by jury…”  (emphasis added).  Additionally, the 6th Amendment to the Constitution states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…” (emphasis added).  When Mrs. Davis was ordered to jail for allegedly committing the crime of “contempt of court”, she was not granted a trial by jury.  The Constitution could not have been clearer in two distinct places (one of them specifically outlining the protections of all Americans) about which trials and criminal prosecutions must be by jury: all of them.   Even in a Supreme Court opinion nearly 50 years ago, the justices recognized this danger and reaffirmed the Framer’s intent:

“Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right trial by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” (Duncan v. Louisiana, 391 U.S. 145 (1968))

As a final note, though it is technically not a reason that Mrs. Davis should not have been jailed, it should be equally as alarming to you that the doctrine of “separation of powers” is clearly violated in this case.

An elected official in the executive branch of government of a county, was ordered by an appointed official in the federal judicial branch to perform one of her discretionary duties in a specific manner (against her discretion and in contravention of state law and the U.S. Constitution) thereby circumventing and disenfranchising her constituents and resulting in her incarceration without “due process” or the option of a jury trial as required by the Constitution.

That about sums it up!  Nothing to see here….please move along.

 

Read More

Achor (babies) Away!

In a recent article in The Texas Observer, the subject was raised about whether or not to grant American citizenship to children of illegal aliens. These children are more commonly known as “Anchor Babies” because they are used as an anchor to secure their family to this country illegally.

The most common justification for allowing this practice of granting citizenship to anchor babies is Section 1 of the 14th Amendment which reads

 

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” (Emphasis added)

That pesky phrase underlined above somehow has been ignored for decades when applied to anchor baby cases.

As you know, whenever possible, I will go back to original sources in order to draw out the intent and context of the period in which the law was written to apply the most accurate representation.  So here we go…

The 14th amendment was ratified on July 9th, 1868.  During the debates surrounding the amendment, the author of Section 1, Congressman Jacob Howard of Michigan, describes his intent for the section:

“The first amendment is to section one, declaring that all “persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion.  This amendment which I have offered is simply declaratory of what I regard as the law of the land already , that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course,include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.” (Emphasis added) — Congressional Globe, 39th Congress, 1866, pg. 2890

Clearly, as the author of this section states, even those born in the United States who are foreigners (as all aliens are–legal and illegal–until they are naturalized), are not intended to be granted citizenship by this amendment.

Furthermore, this language and intent is consistent with the Civil Rights act of 1866 which passed two years earlier on April 9th 1866 which, in part, reads:

Be it enacted . . ., That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” (Emphasis added)

All illegal aliens are subject to the power of the foreign government to which they owe their allegiance–not to the United States.  This, in my opinion, cuts to the reason behind the phrase “and  subject to the jurisdiction therein.”  We should not make citizens, those foreign nationals who are loyal to another nation!  We are seeing the results of this folly today in spades with the balkanization of our own country.

It does not matter which judge gives an opinion, or which Congress enacts a law to the contrary, neither one trumps the Constitution!

The intent of the 14th Amendment has not changed over the years, only the political views of judges offering opinions on it or those defying their oaths to “support and defend the Constitution of the United States against all enemies foreign and domestic”

So, God Bless Texas for taking a stand, although the article does claim that the Texas Department of State Health services would accept a foreign passport with valid visa, which would still place the mother and the child in a foreign status and consequently ineligible for citizenship according to the original intent of the 14th Amendment.

There is still much to do in this country…

Read More

On “General Welfare”

One of the rare, positive effects that has come out of Congress recently is the introduction into the Rules of the House of Representatives the requirement to cite “as specifically as practicable (sic) the power or powers granted to Congress in the Constitution to enact the bill…” (113th Congress, House Rules, Rule XII, paragraph 7c).

Sounds great, right?  Well, unfortunately these days, when an equally rare Constitutional challenge is leveled against legislation making its way through Congress, more often than not, the knee-jerk response is that the “general welfare” clause gives them carte blanche authority to spend our tax money on social welfare programs.

To those who have not had the opportunity to closely study our founding documents and the primary sources of information from which we discern their original intent, this may sound legitimate–overly vague–but legitimate.

So, let’s dig into these original documents, debates, and correspondence which helped frame and clarify them.

President James Madison

President James Madison

First, we should see what the Constitution has to say about the “general welfare” of the United States.

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, 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.”  (Preamble to the U.S. Constitution / Emphasis added)

…and…

“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;” (U.S. Constitution, Article I, Section 8; Emphasis added)

Aside from the definition of the word “welfare” from Webster’s Dictionary in 1828 which defines it as “ordinary blessings of society and civil government; applied to states,” there are several primary sources to which we can turn to understand the intent of these phrases.

The first set of sources we will consider are The Federalist Papers which were written after the Convention to articulate to the public why the proposed Constitution was the right replacement to the Articles of Confederation.

The Federalist Papers

The Federalist Papers

A key factor we must consider when studying the Constitution is that the document was written with the average man in mind–not for lawyers, judges, academics, etc.  James Madison, considered the primary author of the Constitution, confirmed this for us in The Federalist Papers.

“It will be of little avail to the people… if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood;” (The Federalist No. 62)

Madison (and other framers) feared that the language and volume of our laws, beginning with the Constitution, could soon spiral out of control.  To keep it in check, we would need to ensure that all of our legislators were not replaced at the same time in order to keep some institutional knowledge, and that the laws were written plainly for the common man to understand minimizing the need to re-write or amend them for clarity.  This tells us that the framers carefully crafted the wording of the Constitution to keep it free from hidden, double, vague, or ambiguous meanings.

Bearing in mind the simple language with which the framers intended to write the Constitution, we should also review the debates of the framers during the Constitutional Convention of 1787.  Fortunately for us, several of the framers (including Madison) kept notes about the proceedings at the Convention from which we can glean even further insight into the original intent of the various clauses of the document.  A terrific source for this purpose is the Records of the Federal Convention of 1787 (Vol. 1, Vol. 2, and Vol. 3) which chronicles from several perspectives the debates, findings, and conclusions of the various committees at the convention.  This is an invaluable treasure for those seeking the original intent of the framers.

Welfare — ordinary blessings of society and civil government; applied to states.

-Webster’s Dictionary 1828

The first we learn about the phrase “general welfare” is from Edmund Randolph of the Virginia delegation.  On May 29th, 1787, Mr. Randolph introduced what is now referred to as the Virginia Plan or Randolph Resolutions.  The very first resolution advocates that the “articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely ‘common defence, security of liberty and general welfare'”.  Notice the phrase “corrected & enlarged”–keep this phrase in mind and we will revisit it shortly.

In fact Article III of the Articles of Confederation read, “the said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare.”  So as we can plainly see, the phrase was borrowed from our first attempt at constituting our nation.

Convention of 1787

Through the rest of the proceedings of the Convention, anytime the clause containing “general welfare” is brought up (August 11th and August 25th, 1787), it is in the context of paying the debts owed from the Revolutionary War that were secured to “provide for the common defense and general welfare” of the newly formed nation.  Also notice when the phrase is used in Article I, Section 8 (see above), it immediately follows the phrase “pay the debts”.

In fact, as Madison described in his letter to Andrew Stevenson on November 17, 1830 (which can be viewed in the Records of the Federal Convention of 1787, Vol. 3, page 483), there was no need to refer to any future debts for those were already accounted for in the powers granted to Congress in Section 8.  The only reason to include this phrase was to satisfy debts for “common defense and general welfare” prior to the new Constitution.

The final source we will look at is the correspondence of the primary author of the Constitution.  Specifically we will look at the letter James Madison wrote to Andrew Stevenson in which he conveyed his intent and understanding of the incorporation of the phrase.

In addition to the argument presented above, Madison goes on to argue that the “general welfare” phrase could not be construed as unlimited and indefinite.  If so, then how could it be “enlarged” as Edmund Randolph proposes on May 29th (remember his resolution from above?).  A corollary to that argument is that there would not have been a need to enumerate such specific powers if the intent was to allow for unlimited scope of the phrase.

Finally, in the same letter, Madison argues that “it exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant & cautious definition of federal powers, should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions & definitions elaborated by them”

Moreover, in the dozens of proposals by way of the Convention in 1787, the subsequent debates between the colonies prior to ratification in 1789, and the many proposed amendments to limit the power of the new federal government prior to 1791, it defies logic that this phrase would have escaped notice–especially from those who were still fearful of an out-of-control centralized government similar to the one for which they sacrificed their lives and treasures to separate from in the first place!

While this is just one of many phrases of the Constitution that has been warped and twisted for political purposes in recent years, what we should also take away from this study is that all it takes is a careful examination of the original documents to help us understand, return to, and ultimately defend the values and principles laid out by our Founding Fathers in the Constitution.

Read More