Posted on 05/19/2003 9:09:06 AM PDT by TimTyler
In a recent post, I read the following: "The founding political document of the American nation was the Constitution, not the Declaration."
I believe the comment is true, but it is too "on the nose" to invite discussion. Still, the subject suggests a different, though related question: "'If the founding political document of the American nation was the Constitution, not the Declaration,' then what were the founding political documents for the Constitution?" I believe the answer will provide insights into the Constitution's* true intent and meaning. *Constitution of 1791.
Constitutions were not uncommon to Early Americans. The U.S. Constitution was one of fourteen written between 1776 and 1791. Most of the U.S. Constitution's parts were framed in the image of the Declaration of Independence and the first State Constitutions. To independently, without contemporary analysis, study the reasons for each of the Constitution's clauses we should read the Common Law, the Declaration of Independence, the Articles of Confederation and the first thirteen State Constitutions.
After reading and comparing their parallel texts it would not be difficult to draw your own conclusions. Because they are so similar in subject, problem and solution, a clause for clause comparison would more than suggest that these first State Constitutions and the Declaration of Independence were the blueprints for the U.S. Constitution.
For instance, written in the Declaration of Independence is, “He [King of Great Britain] has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.”
Two of the Constitution’s corrective clauses: “Article I, Section IV: “The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day…”
AND, in “Article II, Section 4,“The President, Vice-President and all civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors…”
Declaration of Independence: “He has refused, for a long time after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the mean time exposed to all the danger of invasion from without, and convulsions within.” AND “He has refused, for a long time after such dissolutions, to cause others to be elected”
Constitution: “Article I, Section IV: “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any Time by Law make or alter such Regulations, except as to the Places of chusing Senators…
Declaration of Independence: “He has affected to render the military independent of and superior to the civil power.…”
Constitution: “Article I, Section VIII. - “The Congress shall have Power – “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land or Water;… “To raise and support Armies; but no Appropriation of Money to that Use, shall be for a longer Term than two Years;… “To provide and maintain a Navy;… “To make Rules for the Government and Regulation of the Land and Naval Forces;… “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;… “To provide for organizing, arming and disciplining the Militia, and for governing such part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the Discipline prescribed by Congress;…”
Second Amendment: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed…”
Regarding the “superiority of the civil power,” Article VI says: [in part] “…This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; …”
Without exception, the Congress remedied all of the Declaration’s grievances in the Constitution of 1791. Yet, however plain and unambiguous the Constitution’s remedies, interpretations are often encumbered with the reader’s prejudices and passions.
To the end that we discover the Founding Generation’s intent, we should read their first fifteen Constitutions* for the religious, political and moral character of their words inscribed in so many similar documents, written in the same time, by one generation, to similar and mutually agreed purposes, should convince the most discriminating, of Founder’s meaning and intent.
* The Declaration of Independence, first thirteen State Constitutions, the Articles of Confederation and Perpetual Union, and the Constitution for the United States of America.
For example, the Declaration’s “For depriving us, in many cases, of the benefits of trial by jury; …” is linked to at least one clause in the Constitution of 1791, and the parallel clauses in the First State Constitutions.
The U.S. Constitution’s Article III, Section 2, Clause 3 “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the trial shall be at such Place or Places as the Congress may by Law have directed….”
The Declaration of Rights of the State of Delaware. “12. That every freeman, for the injury done him in his goods, lands, or person, by any other person, ought to have remedy by the course of the law of the land, and ought to have justice and the right for the injury done to him, freely without sale, fully without any denial, and speedily without delay, according to the law of the land. “13. That trial by jury of facts where they arise, is one of the greatest securities of the lives, liberties, and estates of the people.”
The Constitution of the State of Georgia. “37. All causes and matters of dispute, between any parties, residing in the same county, to be tried within the county. “38. All matters in dispute between contending parties, residing in different counties, shall be tried in the county where the defendant resides; except in cases of real estates, which shall be tried in the county where such real estate lies. “39. All matters of breach of the peace, felony, murder, and treason against the state, to be tried in the county, where the crime was committed. All matters of dispute, both civil and criminal, in any county, where there is not a sufficient number of inhabitants; to form a court, shall be tried in the next adjacent county, where a court is held. “40. All causes of what nature soever, shall be tried in the superior court, except as hereafter mentioned; which court shall consist of the chief justice, and three or more of the justices residing in the county; in case of the absence of the chief-justice, the senior justice on the bench shall act as chief-justice, with the clerk of the county, attorney for the state, sheriff, coroner, constable, and the jurors. And in case of the absence of any of the aforementioned officers, the justices on the bench to appoint others in their room pro tempore. And if any plaintiff or defendant in civil causes shall be dissatisfied with the determination of the jury, then, and in that case, they shall be at liberty within three days, to enter an appeal from that verdict; and demand a new trial by a special jury, to be nominated as follows, viz. each party, plaintiff and defendant, shall chuse six, six more names shall be taken indifferently out of a box provided for that purpose, the whole eighteen to be summoned, and in their names to be put together into the box, and the first twelve that are drawn out, being present, shall be the special jury to try the cause, and from which there shall be no appeal. “41. The jury shall be the judges of law, as well as of fact, and shall not be allowed to bring in a special verdict; but if at all, or any of the jury, have any doubts concerning points of law, they shall apply to the bench, who shall each of them in rotation give their opinion. “42. The jury shall be sworn to bring in a verdict according to law, and the opinion they entertain of the evidence; provided it be not repugnant to the rules and regulations contained in this constitution. “43. The special jury shall be sworn to bring in a verdict, according to law, and the opinion they entertain of the evidence; provided it be not repugnant to justice, equity and conscience, and the rules and regulations contained in this constitution, of which they shall judge.”
The Declaration of Rights of the State of Maryland. “3. That the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration.” “18. That the trial of facts where they arise, is one of the greatest securities of the lives, liberties, and estates of the people.” “29. That no person, except regular soldiers, mariners, and marines in the service of this state, or militia when in actual service, ought in any case to be subject to, or punishable by, martial law.”
Part I, Declaration of Rights, Constitution of the State of Massachusetts. “XI. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws for all injuries or wrongs which he may receive in his person, property or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.” “And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury.” “XIII. In criminal prosecutions, the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen.” “XV. In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherwise used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, … ” “XXVIII. No person can in any case be subjected to law-martial, or to any penalties or pains, by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the legislature.”
Constitution of the State of New-Jersey. “22. That the common law of England, as well as so much of the statute law as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this charter; and that the inestimable right of trial by jury shall remain confirmed, as a part of the law of this colony, without repeal for ever.”
The Declaration of Rights, Constitution of North-Carolina. “14. That in all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.”
Chapter I, The Declaration of Rights of the State of Pennsylvania. “IX. That in all prosecutions for criminal offences, a man hath a right to be heard by himself and his Council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favour, and a speedy public trial, by an impartial Jury of the country, without the unanimous consent of which Jury he cannot be found guilty: Nor can he be compelled to give evidence against himself: Nor can any man be justly deprived of his liberty, except by the laws of the land or the judgment of his peers.”
Chapter II, The Constitution of the State of Pennsylvania. “SECTION the Twenty-fifth. TRIALS shall be by Jury as heretofore: And it is recommended to the Legislature of this State to provide by law against every corruption or partiality in the choice, return, or appointment of Juries.”
The Constitution of the State of South-Carolina. “41. That no freeman of this state be taken, or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land.”
Chapter I, Declaration of Rights, Constitution of the State of Vermont. “IV. Every person within this Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which may receive in his person, property, or character: he ought to obtain right and justice freely, and without being obliged to purchase it — completely, and without any denial — promptly, and without delay; conformably to the laws.” “XIX. That no person in this Commonwealth can, in any case, be subjected to law-martial or to any penalties or pains, by virtue of that law, except those employed in the army, and the militia in actual service.” “XXIII. That no person shall be liable to be transported out of this State, for trial for any offence committed within the same.”
Chapter II, Frame of Government of the State of Vermont. “XVII. No person ought, in any case, or in any time, to be declared guilty of treason or felony by the Legislature. “XVIII. Trials of issues, proper for the cognizance of a jury, in the Supreme and County Courts, shall be by jury, except where parties otherwise agree: and great care ought to be taken to prevent corruption or partiality in the choice and return, or appointment of juries.”
The preceding quotations are from: “The True Intent of the First American Constitutions of 1776-1791." by Edward A. Kole © 1999
TimTyler
-PJ
I'd recommend adding Blackstone's Commentaries and Montesquieu's The Spirit of the Laws to that list. The Founders drew very heavily from both of those texts.
As for the "Declaration", it is the expression of what we aspire to be (that all men are created equal) and that which we dislike (The King of Great Britain has dissolved our representative houses repeatedly,...”). The Constitution is a mature, just, perpetual, "King". The Declaration is a passionate rebel. America would not be America without both. The Declaration reminds the King that if he does not rule wisely, there will be "probable cause" for rebellion.
And the Queen? I have always considered Old Glory to be our Queen. Forever beautiful, forever inspiring bravery. She compels us to be worthy of her. When we are truly worthy, she is given to our parent or spouse as "a symbol of the gratitude of a grateful nation". She represents the majesty of the "King", our Constitution and the passion of rebellion in our "Prince", the Declaration.
The Declaration, the Constitution and Old Glory are the "Trinity" of America. Without all three, the "stool" has only two legs and is unstable.
Well, as one who could have said it, I think it always needs discussion due to the abuse of people in the usage of the language of the Declaration.
To explain my position, I refer to the Declaration as an "Animating" document and to the Constitution as a "Framing" document. Certainly they were both essential in our "founding."
The former was a letter to the world and a communication establishing what animated our actions and clearly established who we thought we were. It was created by representatives, but not confirmed by representatives after a full review by the people. It was not meant to be law or to replace aspects of established common law.
The Constitution was meant to be Law and very stringent and supreme in nature. It was approved by the people through their representative state governments.
Why is the distinction so important in political discourse? In my opinion, it is because much of Collectivism tries to stick its nose under the tent of our system of government by using the words of the "animating" documents. Letters by Jefferson, quotes from pamphletiers, and the Declaration's communicative wording all are fodder for the Rationalistic Totalitarian Democary activist.
Once the nose is in the tent, Equality, displaces property. Liberty becomes a limitless god and lawful order is just a convienience when needed by the Rationalist. And lastly, the Framing document is found to be "deficient" for not meeting the expectations of the "animating" document as determined by the Rationalist. A Crisis looms and only the vision of the annointed with the force of centralized control can save the issue-made-god. (See T. Sowell)
Your shunt to discuss what founded the framing document is worthy of discussion, I would agree. But the issue that "animated" your post is never to simple to avoid in detail.
For those who have the time, I reccommend Forrest McDonald's Novus Ordo Seclorum,The Intellectual Origins of the Constitution
It [the Constitution] was approved by the people through their representative state governments.
The actual approval was done by ratifying conventions that were chosen directly by the people, bypassing the state governments.
Thanks.
Is writing poetry your day job?
I wouldn't say so. The Declaration of Independence was "The Unanimous Declaration of the Thirteen United States of America." Unless there is something earlier in which the states acted in unison, that would have been the beginning of the American nation. By the time the Constitution was adopted, the States had had the Continental Congress, the Articles of Confederation, had fought a war together, and the American nation was past "founding" (if only barely).
That does not diminish the importance and significance of the Constitution or of any of the other documents mentioned.
Of course, this might depend on how you define "American nation."
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