The Declaration of Independence announced to King George III, the sovereign of the English Colonies in North America, that its subjects were breaking away, as was our right to do when English government became oppressive to the people of the colonies. England met the challenge of our Declaration and sent troops to North America to put an end to the revolution. That step put an end to the North American colonists being English. The former subjects became free under Enlightenment thought to be free to form a new government to their liking. This is the state Thomas Jefferson referred to as providing us with natural rights, as if we were newly born, free and equal. The colonies changed their status to States or Commonwealths and established separate constitutions as the governments’ supreme law. The laws of the colonies remained intact in the States and Commonwealths, newly formed, unless superseded by their new constitutions. The American response of the Revolution was to draw a clear distinction between sovereignty and government in America. The former was to reside in the people, and to be unalienable from them. The later was but an instrument for exercising authority, delegated by the people. The branches – The President, Congress and the Judiciary were simply “servants” and agents of the people contained within the government.
As the Revolutionary War unfolded, the population of the colonies became undifferentiated among the thirteen colonies. These people were in the view of Enlightenment Thought in a state of nature; individually equal, liberated from any government and free. Their first political step was to form a Continental Congress of representatives from their polity. Initially, the Continental Congress was not a government. The powers given by the people were more like from principal to agent, than as governmental powers to rule. The Continental Congress was given but two assignments: to raise funds and to press the Revolution to eventual victory.
The former colonists formed a “quick and dirty” confederation, and called this confederation the United States of America, and the “agent” of the people was called the United States of America in Congress Assembled – the mostly-same members as the Continental Congress. Ceasing to exist were the separated colonies, which became States of the Confederation. The people were sovereign over the United States of America and the government under the Articles of Confederation, was quite dubious although it sent ambassadors to a few foreign countries to raise money. It significantly accomplished its expected duties and also managed to write the Northwest Ordinance, and to negotiate a Treaty – the Treaty of Paris – ending the Revolutionary War and thereafter designed a Constitution to replace the Articles of Confederation.
The government under the Articles of Confederation was always intended to be temporary, written by a single member of the Continental Congress and approved by the Congress with barely a change. The next step was to create a real constitution embodying both natural and legislative designated rights, both positive and negative in form. Natural rights were thought of as inherited from nature in respect of human beings and the nature of our place on Earth. Natural rights are always positive in form; we exist with a purpose to claim and exercise those rights.
Today’s major political issue is the same as it was immediately after the Constitution was ratified; to live faithfully under the Constitution. No matter how the Constitution may have alternatively been written and ratified, it would also have been a challenge for human beings to maintain obedience from the Congress and Presidents. Most troublesome have always been natural rights and positive legislative-granted rights. The federal government would always be more apt to challenge the boundaries of power than the state governments. There is more human nature for power to be ceased by a demagogue at the federal level than in one of the states.
Negative-rights are by example displayed in the Bill of Rights: “Congress shall make no law respecting an establishment of religion….” This negatively-stated right is a prohibition, as are all negative rights in the Constitution, as well as those referred to in Amendment IX, which states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Negative-rights are a specifically attractive form to advance freedom for the reason that they do not result in a large or costly government. That characteristic was known and most important to obtaining ratification of the Constitution by the people.
In Franklin Roosevelt’s third-term State of the Union Address (1944) he outlined what he believed to be higher aims of the State. He was becoming more of a demagogue in his third term and because of his health, highly concerned with his legacy. Among his aims for the future were rights to: a useful and remunerative job, to every family a decent home, to adequate medical care, to a good education, and so on. Roosevelt’s address did not make legislation but did promote ideas to his Party that he would like see legislated. All would take positive law and be costly. Since none of his aims are permitted in the Constitution – they lack positive consent in the document, they should be determined to be unconstitutional if enacted. Why did he promote such aims? The answer is that because he believed he would be successful. As it turns out, he already had a precedent to embolden a handful of claims. In the 1930s Roosevelt finagled with the Supreme Court and got a monstrously wrong decision in the Supreme Court (influenced by his prior finagling) in Helvering v. Davis. This case broke open the Constitution to advance any form of welfare to be financed by the federal government that Congress is able to put into law. In such a situation, case law is more difficult to overturn than legislating “new take-away” legislation. Justices too have legacies to think about and overturning a popular law is what Stare Decisis is all about. Politics is more powerful than sovereignty and a Constitution. The result today is Medicare, Obama Care, Housing, Education, Poverty Relief, et al.
Publiustoo.com June 27, 2021
