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writing for godot

Three Constitutions

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Written by Larry Allen Brown   
Monday, 09 October 2017 01:33

Three Constitutions

by Larry Allen Brown

The statement that "Some scholars would argue that the only source of meaning in the Constitution comes from the text itself.", begs the question; Which Constitution? I would argue that we've had three, and that the Civil War, gave us the third version which is what we live under today.

Members of Congress carry pocket versions of the Constitution with them and wave it in your face at every opportunity, and won’t hesitate in telling you how devoted to it they are. Most of them probably have never read it, and most of them would say that we are functioning under the Constitution of 1789. But we aren’t.

Our Constitution now is different in significant ways from the founders Constitution. The Constitution we live under today, in theory and in practice, is the Reconstruction Constitution. Think about the big cases that define constitutional law. Gideon, Mapp, Miranda, Brown, Roe. What do all these cases have in common?

They all could never have arisen, they could never have been decided, under the Founders' Constitution. They are all 14th Amendment cases, federal rights against the states.

So, our Constitution, the cases we talk about, the rights we cherish, is not the Founders' Constitution.

And we haven't had it for over 200 years. We've had it for about 140 and some of the most important parts of it didn't really get enforced until about 60 years ago.

In many ways, the Civil War is like a second American Revolution and also like a second founding. Here's how.

The secession letters of the Southern states mirror the Declaration of Independence in some very important ways. Both the Declaration and the Secession letters have a statement of values. The Declaration states that, “All men are created equal and are endowed by their creator with unalienable rights”, and it had a political theory that people give power to the government and if it fails to protect them and their rights, they can take that power back. They can alter or abolish their form of government.

The secession letters actually take the same form. In fact, many of them relied on the Declaration for their justification. Their statement of values however is radically different. They don't say “equality.” They say inequality. They don't say liberty. They say slavery. But they point to a similar political theory. The states gave power to the federal government. Things didn't work out and we're taking it back.

But the states didn't give power to the federal government, the people did. And states can't take back what was never theirs. The political visions that clashed in the Civil War are really about who is the highest authority in our system. Is it the states, as the Confederates argue? Or is it the people, as Lincoln claims? The Constitution was written for the people. Not for the States. The Preamble says; “We the People”. Not We the States.

So, what the secessionists are doing; by their reasoning, is no different than the patriots that signed the Declaration at the time of the founding. And if the South had won, people in that new nation, the Confederate States of America, would see those secession letters as the Declaration of Independence for the second American Revolution. A new nation built on slavery.

But when the South didn't win, a second founding took place anyway.  It just wasn't the one the secessionists wanted. In fact, it was just the opposite.

The Declaration for the Second Founding, is the Gettysburg Address.

“Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this

But, in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

Like the Declaration, this has a statement of values, and it’s a statement of values that come to the forefront of American life. We are no longer a nation that subscribes to the institution of slavery. That institution is abolished and the Federal Government will enforce that action by force if necessary.

When Lincoln says. “Four score and seven years ago, our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.” That's the value to which the nation is dedicated. And what's his political theory? It's that the people are sovereign, not the states.  And that the federal government represents the people. In asserting the superiority of federal power over the states, in McCulloch v. Maryland (1819) Chief Justice Marshall stated: "The government of the Union, then (whatever may be the influence of this fact on the case), is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit."

That's the government that is of the people, by the people, for the people; the federal government.

This is almost the opposite of the theory of the revolution.

The theory of the revolution is that the general government is a threat to liberty and the states are its protectors. That's the idea of the Founders' Constitution too. That's what the Second Amendment is about, states standing up against the tyrannical federal government. Well, maybe not. More then likely it was put there as a protection against a slave uprising. I'm pretty sure that a tyrannical federal government wasn't at the forefront of the concerns of plantation owners that had perhaps 200 slaves that might just want to rise up against the master and his family. That would be a more immediate threat that they could see every day. But, that's the stated idea of the secessionists. That's what they think they're doing.

Lincoln's theory is instead that the federal government can protect liberty. It can protect people from the states.  The Founders' Constitution doesn't do this, but the Reconstruction Constitution will.

That's the new birth of freedom that the Gettysburg Address promises, the Reconstruction Amendments, the 13th, 14th, and 15th.

It’s important to remember that slavery was codified into our Constitution with Article I, Section 2, ( the 3/5th’s compromise) ; Article I Section 9 ( barring congress from abolishing the slave trade before 1808), and Article 4 Section 2 ( providing for the return of runaway slaves). Slavery was an accepted institution at the beginning. The Reconstruction Constitution, with the 13, 14, and 15th Amendments radically changed the Constitution in fundamental ways. Slavery was abolished and those former slaves were now US Citizens with the right to vote.

These amendments constitute a second founding. They give us a very different constitution than the one the founders imagined. If States are oppressive to their citizens, then the Federal Government will intervene to protect them.

The federal government now is the good guys. So what does all this mean?

We like to say that the Constitution is a success, that it served us well for over 200 years. But, the Founders' Constitution was in significant ways... a failure. It didn't do what it was supposed to do.

It's supposed to form a more perfect Union, but 11 states secede. It's supposed to ensure domestic tranquility, but Americans kill Americans, three-quarters of a million of them. That's not success.

We don't like to say this. We like to think of American history as a success story. We look back to the Declaration, and 1776, to the Founders, 1789. We imagine a line that connects us to those great figures of our history, whose wisdom still guides us, whose examples still inspire

But the Civil War is a pretty significant break in that line. The Civil War is a rejection of the signers' idea that people can always decide to change their government. It's a rejection of the Founders' idea that the states are the primary protectors of liberty. After the Civil War, it's going to be the federal government. It's going to be, for a while, federal troops in the occupied South. There has been a concerted effort on the part of Conservative Republicans to return power to the states over the past several decades.

So our Constitution now is different. The Constitution we live under today, in theory and in practice, is the Reconstruction Constitution.

We have basically three different constitutional visions

1.  There's the Constitution of the Declaration and the Revolution, the spirit of 1776. This is really the Articles of Confederation. The Articles placed great emphasis on the States.

2.  There's the Constitution of Philadelphia in 1789. That's the Framers' Constitution.

3.   And there's the Constitution of Gettysburg in 1868, the Reconstruction Constitution.

 

What differentiates these visions is basically how they think about the states and the federal government.

1776 says the federal government is dangerous. The states are good. They'll protect people.

1789 says the states are still good, but they need to be controlled.

And 1868 says the states are dangerous. The federal government is good.

All of these visions are available. They're all part of our history and that means that you need to choose which one you're going to identify with.

So, if some scholars would argue that the only source of meaning in the Constitution comes from the text itself.", it does beg the question; Which Constitution? It’s been altered through the amendment process 27 times. Does the text correspond to the way that people live their lives?

For example; there is nothing in the Constitution that says; “Separation of Church and State”. But the Separation of Church and State is what you arrive at when you apply the First Amendment. Presidential Candidate Donald Trump  called for a “temporary” ban on all Muslims coming into this country. That was met with a combination of complete shock and enthusiastic support. But it never could be seen as anything other than campaign rhetoric with no chance of actually happening, yet it does reveal the extent of the ignorance of the constitution by large segments of the country. The First Amendment reads, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”. It’s the cornerstone of religious freedom in this country. The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another, or targeting one religion for retribution. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion. Congress can make no law that would target any religion in any way. It doesn’t endorse Religion, nor does it exclude any religion. When you try to create a law that targets a religion to be banned from immigrating or even traveling to this country, you establish religion as the basis for the law. What Trump calls for would establish religion as the basis for the law in violation of the Establishment clause of the First Amendment.

The ninth amendment seems to suggest we need to go beyond the written constitution.

Amendment IX

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Ninth Amendment was James Madison’s attempt to ensure that the Bill of Rights was not seen as granting to the people of the United States only the specific rights it addressed.  In recent years, some have interpreted it as affirming the existence of such “un-enumerated” rights outside those expressly protected by the Bill of Rights.

The Ninth Amendment had been mentioned infrequently in decisions of the Supreme Court until it became the subject of some critical interpretation by several of the Justices in Griswold v. Connecticut. There a statute prohibiting use of contraceptives was voided as an infringement of the right of marital privacy. Justice Douglas, writing the opinion of the Court, asserted that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Thus, while privacy is nowhere mentioned, it is one of the values served and protected by the First Amendment, through its protection of associational rights, and by the Third, the Fourth, and the Fifth Amendments as well. The Justice recurred to the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the Amendment.

If we are to function as normally as possible under our Constitution, we must look beyond the written text to derive its meaning. The first Amendment makes no mention of the Separation of Church and State. It doesn’t have to. That’s the Jefferson metaphor which tells us; that’s what you get when you apply the Amendment. And, it’s precisely why Trumps call for a ban of all Muslims coming to this country can never happen. The government cannot regulate religion. And the Constitution was never meant to keep us living in the 18th Century.

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