The Preamble – Part IV: “establish justice”
By Frank Kuchar - Constitutionalist
What is “justice”, and how is it to be “established”? Simply put, justice is where everyone in a society is treated fairly as equals. When this is not the case we often speak of the “scales of justice” being weighted in favor of one party over another, meaning that the scales have been perverted and justice destroyed. But how is justice “established”? What was the import of listing it in the Preamble to the Constitution and placing it immediately following the purpose of forming “a more perfect union”?
As I pointed out in last week’s essay (The Preamble – Part III: “a more perfect union”), there was a breakdown in justice among the thirteen states; there was no “fairness” among their interaction with one another and between themselves and other nations. The Articles of Confederation were inadequate in righting this lack of justice and the consistency of it among the states, and so there was the need for the creating of “a more perfect union” via this new Constitution.
Returning to the second question with which I began this essay, just how is this Constitution to see that justice is established? The answer begins with the next to last article which proclaims that “This Constitution,…shall be the supreme Law of the Land.” But, you may be asking, what has being the “supreme Law of the Land” have to do with establishing justice? In his outstanding treatise The Law, Frederic Bastiat, towards the end, raises the question “What is law?”, to which he answered “Law is common force organized to prevent injustice; ̶ in short, Law is Justice.” In fact, no less than seven times in the closing of his treatise, Bastiat states that “law is justice.” Note his definition of law – “common force organized”. Such force is why people form societies and establish governments, handing over to it (temporarily, until government begins to abuse its power) the authority to enforce an organized application of law in order to preserve societal order and protect the lives, liberty and property of all. In other words, to ensure that everyone is treated fairly.
So, in turning Bastiat’s phrase around, we could also say that “justice is law”, i.e., justice is brought about by laws that are fair and are equally applicable to all. Such is the intent of the Constitution that follows the Preamble – to see that government is limited and that it treats all citizens under its authority equally and fairly. In other words, “to establish justice.”
The Preamble – Part II
By Frank Kuchar - Constitutionalist
As I pointed out in the past essay in this series (The Preamble – Part I), the Preamble is not an actual part of the Constitution, meaning it carries no weight as “law”, but rather serves as a broad, thematic statement as to the purpose for which the Constitution’s articles (and subsequent amendments) were written, and in turn, the purpose for which those citizens in 1787 were forming the new government which sprang from the Constitution.
This understanding of the function of a preamble to any document and how broad, general statements, cannot be applied to mean anything and everything is to be permitted, is critical to grasping how the intent of the Constitution was to limit the power of government and expand the freedom and liberties of the citizenry.
This is clear from two perspectives. One is grammatical, the other is from the pen of James Madison. Grammatically, the Preamble states that what is to follow in the Constitution has a distinct and limited purpose as indicated by the phrase “in Order to.” This would indicate that anything outside the scope of the six actions that follow is not something within the purview of the national government. The Constitution charges the government to perform six actions, indicated by the verbs “form”, “establish”, “ensure”, “provide”, “promote” and “secure.” I will be examining each of these six functions in the weeks to come, but, as we go through a study of them, remember these words of Madison when he was expounding on the structure of Article I, Section 8 of the Constitution in The Federarlist No. 41 regarding how to interpret general phrases:
“But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.”
It is the specifics delineated in the Constitution that explain in what manner the government is to carry out these six broad commissions given to it by “We the People” that we will be examining in the coming essays.
The Preamble VII – “provide for the general welfare”
By Frank Kuchar - Constitutionalist
Perhaps no more abused clause in all of the Constitution is this one regarding the “general welfare.” It has been the excuse for the national government to get involved in forcing citizens to save for retirement via the social security tax, to health care, to you name it. The clause is repeated in the opening of Article I, Section 8, which is important as I shall point out in Part II on this topic. Interestingly, when the southern states seceded and formed the Confederate States of America, their constitution mirrored the US Constitution in many ways, but glaringly omitted any reference to providing for the “general welfare.”
To ascertain the meaning of this clause I will spend this and the next (or possibly two) essay(s) taking a look at how the founders viewed this clause and how they explained it’s meaning. As I have pointed out in the beginning of this series on the Preamble, merely including this clause in it does not give any authority to Congress to do as they please in matters they determine to be for the “general welfare” as a preamble in not part of the Constitution as far as granting authority, but merely an introduction as to the purpose for those things enumerated within the Constitution.
This general welfare clause and the fear of its potential for abuse was one of the reasons those known as the “Anti-Federalists” opposed the ratification of the Constitution. The first witness I set before you is the author known by the pseudonym “Centinel”, who wrote the following on October 5, 1787:
“The Congress may construe every purpose for which the state legislatures now lay taxes, to be for the general welfare, and thereby seize upon every object of revenue.”
Consider our situation today – how much of our income does Congress “seize upon” in taxes to provide for all of the programs it deems to be for the “general welfare” yet not authorized in the Constitution? Does not Centinel’s warning ring true?
The next witness to warn about this phrase was the outstanding Anti-Federalist known by the pseudonym “Brutus.” He had much to say about the potential for abuse of all three branches of government, and he has pretty much proved to be a prophet with unerring accuracy. Herewith is some of what he had to say about this clause in his essay number VI, written on December 27, 1787:
“It will then be matter of opinion, what tends to the general welfare; and the Congress will be the only judges in the matter. To provide for the general welfare, is an abstract proposition, which mankind differ in the explanation of, as much as they do on any political or moral proposition that can be proposed; the most opposite measures may be pursued by different parties, and both may profess, that they have in view the general welfare; and both sides may be honest in their professions, or both may have sinister views…
It is as absurd to say, that the power of Congress is limited by these general expressions, “to provide for the common safety, and general welfare,” as it would be to say, that it would be limited, had the constitution said they should have power to lay taxes, etc. at will and pleasure. Were this authority given, it might be said, that under it the legislature could not do injustice, or pursue any measures, but such as were calculated to promote the public good, and happiness. For every man, rulers as well as others, are bound by the immutable laws of God and reason, always to will what is right. It is certainly right and fit, that the governors of every people should provide for the common defence and general welfare; every government, therefore, in the world, even the greatest despot, is limited in the exercise of his power. But however just this reasoning may be, it would be found, in practice, a most pitiful restriction. The government would always say, their measures were designed and calculated to promote the public good; and there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves.”
It is very apparent, is it not, that the fears of these two founders regarding the abuse of this clause by those who were to come after them to justify the expansion of the power of government and the diminishment of individual liberties has indeed come to fruition? So, what was the response by those who argued in favor of the adoption of the Constitution? We will examine James Madison’ response in the next essay.
The Preamble – Part III: “to form a more perfect union”
By Frank Kuchar - Constitutionalist
When you read the Preamble to our Constitution, you should not just gloss over it so as to “get to the meat” of the Constitution. As I’ve pointed out in previous essays – and especially last week’s (The Preamble – Part II) – the Preamble serves introduce the reason for the Constitution, and the ordering of the six reasons listed in the Preamble are, in my opinion, no accident. In an eloquent stroke of genius, Gouverneur Morris captured in his edit of the Preamble the historical reason for the Constitution as well as the philosophical basis for free government. All of the reasons he lists flow out of the first, for without it, none of the other five would have been possible.
This first reason sets forth the historical basis for the need of a new constitution. When the Constitutional Convention (as it is called) convened in Philadelphia in the spring of 1787, 12 of the 13 states sent representatives to it as they had come to the realization that as 13 separate, sovereign and independent entities, their confederation was not fulfilling the promise for which they had fought to gain their independence from Great Britain.
The states were at odds with each other at every turn it seemed. From the perspective of commerce, things were a mess. They were charging each other tariffs on the transportation of goods when one state wished to transport their goods across another’s borders, hampering commerce throughout the confederation. Each state was free to negotiate trade deals with the other nations of the world, even if those trade treaties would be to the detriment of their sister states.
The Continental Congress to which the states sent representatives was very weak and unable to enforce any tenets of the Articles of Confederation (our “first constitution) if not enough of the states agreed to back their resolutions or attempts of enforcement. This was especially evident in states not willing to support the confederation financially as they should have to pay off debts incurred during the War of Independence.
Perhaps the most serious defect, however, was the lack of a solid defensive unity, making all of the states vulnerable to the manipulation and even military domination of the much stronger European powers who were “licking their chops” at how they could exert their influence on these “upstart” former colonies.
Were the states united at the time of the Convention of 1787? Yes, but not very well. However, in order to accomplish the following five reasons for the Constitution and its new form of government, it was necessary to, as the Preamble begins, “to form a more perfect union.”
The Preamble – Part V: “insure domestic tranquility”
By Frank Kuchar - Constitutionalist
This part of the Preamble naturally flows out of the out of the first two elements listed in it. As was pointed out two essays ago (The Preamble – Part III: To Form a More Perfect Union), there wasn’t much domestic tranquility (i.e., peaceful existence) between the various states and that was a motive to create “a more perfect union.” Out of this “more perfect union” came the establishment of justice between the states, and eventually all of their citizens. Without justice (i.e., fair and equal treatment) there can be no tranquility. What parent has not had to deal with one of their children protesting his/her treatment and acting rebelliously because in comparison to the treatment of a sibling they felt they were not being treated the same (i.e., justly)? When that happens, there is no domestic tranquility! When Freddie Brown was killed in Ferguson, Missouri (and as testimony later indicated, for just cause), citizens in that city jumped to conclusion that it was not justified and took to the streets proclaiming “No justice, no peace”, and anarchy ensured there for several nights.
Our national government today has greatly exceeded its constitutional authority and in doing so we see the result – a disintegration of tranquility within our society. President Obama and his Marxist party, the Democrats, constantly harped on (and continue to harp on) the need to “spread the wealth” among the citizenry, which means government taking from those who earn and giving it to those who did not. Is that fair? Is that treating everyone with justice? No, so is it any wonder that it is often spoken of as “class warfare”? That is hardly a term applicable to a society that is experiencing domestic tranquility.
In my 65 years on this earth I have not seen this kind of discord among Americans since the turmoil of the civil rights era of the late 1950s’ and ‘60s’, and it is not by accident. The policies and rhetoric of the previous administration and its party has sought – and succeeded to a degree – of creating a disunity among us, and that has led to this explosion of feelings of injustice, both of which is destroying what should be a tranquil existence among a free people governed by a limited government that has left us alone to enjoy the blessings that are provided in lives lived in liberty.
The Preamble stipulates that the purpose for forming this more perfect union was to insure tranquility among the citizens of the various states, or in other words, to maintain peace among the citizenry. How was the government to accomplish this? By a just application of the law, which the Constitution following the Preamble, is to be supreme. If government would adhere to the limits placed upon it by the Constitution, it would go a long way towards insuring tranquility within our society.
The Preamble – Part VI: “provide for the common defence”
By Frank Kuchar - Constitutionalist
Perhaps no greater danger threatening the thirteen states in 1787 was their weak ability to defend themselves against the more powerful European countries. In 1775 when the War for Independence began, there was a rallying cry for liberty, yet even then only about one-third of the citizens answered that cry. So, now that they were thirteen independent and sovereign states, there wasn’t as strong of a bond to unite themselves against invasions.
It is significant that the phrase begins with the words “provide for”. During the War for Independence there was a constant shortage of supplies and funds for Washington’s army and it is an astounding feat that despite all of those shortages, America won its struggle for freedom. Following the end of the war, as I’ve pointed out previously, cooperation among the states was even worse. So it was necessary to have a stronger central government that had the authority to raise money to support an army and a navy so that all of the states could be defended as they would now be united under a common head.
The next term is also telling as it underscores my point in the preceding sentence. Under the new Constitution the states now shared in each other’s interests of maintaining that freedom they had fought so hard to achieve. What threatened one state now threatened them all, and all were committed to the defense of one another. This could not have come about had there not been a common central authority that they had all acquiesced to on the certain limited matters outlined in the Constitution.
One of the primary reasons for which individuals form communities, out of which governments are created, is to provide for the defense of the individuals by a defense of the whole. Thus was born the phrase, “United we stand, divided we fall.”
The final word, however, bears a brief focusing of our attention. The Constitution was not created to forge a new government that would be imperialistic, seeking to conquer other nations, but rather solely for the security of America. Unfortunately, we have at times veered off of that track, but it is important for us to remember in this day and time that the Constitution was formulated to provide for our defense, not to seek democratization of the world through misguided “nation building.” Our founders never intended for us to become the “policemen of the world”, but rather a strong and prosperous people that others would want to emulate without our having to “persuade” them via military means.
"We the People…"
By Frank Kuchar - Constitutionalist
So begins the opening of the Preamble to our national Constitution. If you research the preambles of other countries’ constitutions, you will find that ours is not unique as many of them also make reference to their constitutions being ordained and formed by “the people”. However, all of these other constitutions came after ours – the ideals of our Constitution have served as the model for numerous others around the globe.
Is it not ironic that a constitution that has inspired so many others is disparaged by no less than a sitting associate justice on our nation’s Supreme Court? In an interview in Egypt in 2012, Associate Justice Ruth Bader Ginsberg had this to say about our Constitution and Egypt’s plans to draft a new constitution for themselves:
“I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.”
I would expect such an observation to come from someone who was unfamiliar with our Constitution and who had never read the defense of its ratification made by its authors in The Federalist Papers, but not from someone who sits on the highest court in the land and is charged with applying the tenets of the Constitution to the cases that come before that court. Yet, that is the perspective of the leftists in our country today.
Our preamble reflects a radical change in government – that power flows upwards from the people, not downward from those sitting in the seat(s) of power. Critics today charge that the Constitution was not a product of the people, but by a bunch of rich, slave owning white men. Unfortunately, too many of our fellow citizens, educated by the leftists who control our educational institutions, believe this to be true. Yes, they were white men, some were wealthy, but not all of them were slave owners – in fact several argued and wanted to outlaw slavery in the Constitution. That they did not do so is not because they owned slaves or supported slavery, but because they knew without some concessions on that issue, no Constitution would be forthcoming and America would disintegrate and be swallowed up by the European powers.
Those who gave us our Constitution were appointed by the legislatures of their respective states, who in turn were individuals elected by the citizens of the states. It was either the legislatures or special conventions appointed by the people who debated and ratified the Constitution, and in the case of Rhode Island, it was ratified by the direct election process of the people (albeit not until May 1790 because the people initially rejected the Constitution). Furthermore, if the people had no say in the ratification of the Constitution, then why did the Federalists in the Federalist Papers address their essays “To the people of New York”, and those of the Anti-Federalists style those to the people in the states wherein they lived?
Clearly, our Constitution is indeed sourced by “We the people”, and because it is, the government it framed and created is accountable and answerable to us. Therefore, since the government came from us, those in power should be warned that we have the right, as Jefferson so eloquently stated in the Declaration of Independence, to abolish it and erect another one that will protect our right to life, liberty and the pursuit of happiness from the tyranny of government – even one that has lost its moorings from its charter document.
The Preamble – Part I
By Frank Kuchar - Constitutionalist
Most people, if you were to stop them on the street and ask them to recite the Preamble of our Constitution, would (I hope) at least remember the first three words, “We the People.” If you were to read the original wording of the Preamble you would be surprised at the stilted and wordiness of it. We owe the eloquence of what it came to be to the young delegate from Pennsylvania, Gouverneur Morris. It was he who took that awkward draft of the preamble and gave it the wings on which it soars today.
Whereas some constitutions of other nations have either been explicitly incorporated to be a part of their constitution or by interpretation by their courts to carry the same weight as their constitution, the preamble of the US Constitution is not a part of constitutional law and has never been applied as such, even though many progressives attempt to use it as such.
A preamble merely sets for the purpose or objectives of what is to follow in the document to which it is the introduction. When attached to a statute (or law) a preamble merely sets forth the intention that was in the minds of the legislature when it was enacted. Inasmuch as the Constitution is the “supreme law of the land” according to Article VI, Section 2, then the Preamble is not law, but merely sets forth the intent for which our government was formulated and shaped by the following seven articles (and subsequent amendments) of it.
The Preamble has two parts: the origin from whence it (and subsequently the government it established) came, and six objectives of the Constitution which follows it is to achieve. The origin is not the states, as the wording in the original draft indicated, but rather, thanks to Gouverneur Morris, us – “We the People” (see my last essay “We the People”). The following six “goals” if you will that the authors of the Constitution envisioned it would achieve are stated in broad, general terms – just as a thematic statement should be. So when it mentions, for example, “to promote for the general welfare”, it was not the intention of the founders to be giving carte blanche to the government to do whatever it felt would be good for the general welfare of the country (but more on this in a subsequent essay).
Over the next six weeks, then, it will be my intent to look at each of these six objectives in the light in which the founders intended and not as progressives would have us believe we are to understand and apply them today.