Sunday, May 18, 2008

Basic Civics: Founding Documents and History

The role of our historical documents as they relate to the founding of this great nation is an interesting study all on its' own. In fact, constitutional scholars and the judiciary reference the following on such a regular basis that knowing them is a must for a layman.

  • Federalist & Anti-Federalist Papers:
    The Federalist Papers were written and published during the years 1787 and 1788 in several New York State newspapers to persuade New York voters to ratify the proposed constitution. -- Source

    In contrast to Hamilton, Madison and Jay who supported ratification of the Constitution of the United States, many others did not. While the former's works were more logically organized (and eventually won the debate), the Antifederalist writers were nonetheless articulate. Serious questions were raised which eventually led to some of the Federalist writings that served as answers to allegations of the Antifederalists.No serious student of the Constitution can be without both sides of the story. Some Antifederalist prophecies have strangely come true. Writings by "Brutus" and "A Federal Farmer," particularly relating to the "necessary and proper" clause (Article I, Section 8, Clause 18), view the future under an unrestrained Congress. Although the "necessary and proper" clause was never meant to be a blanket grant of power, over the years, as the intentions of the Founding Fathers have passed further and further from our memories, all three branches of the federal government have assumed things that simply do not--and never did--exist. As the states have forgotten how to be a check against a Congress run amok, things are getting worse. -- Source

There are a couple of take-aways from this.

The papers (essays) were a debate. While some scholars assign holy-writ status to them, that isn't correct. Every law in the land is debated. Look at the speed limit sign. It clearly says: 55 mph. Yet, that speed limit was both supported and opposed. The arguments never made it into the final written law. Instead, the law was written with the arguments in mind or dismissed. Thus, you cannot speed and then tell the judge that "State Senator so-and-so" opposed this law on certain grounds. To consider the debate would place the debate in a position superior to the law. Thus, you cannot "interpret" the law and place an emphasis on "the intention of the writer". His or her intent is clearly spelled out: "Thou shalt not go faster than 55 mph on this highway".

The understanding of the essays is critical to understanding the context of the Constitution. But you cannot logically use the debates to determine "intent" and from there assign the law to a status of unConstitutional. You must use the literal wording and word meanings from the late 1700's. As an example of this danger, consider:

  • The Danbury Letter: An infamous letter written by Thomas Jefferson to the Danbury Baptists.
    The Danbury Baptists were a religious minority in Connecticut, and they complained that in their state, the religious liberties they enjoyed were not seen as immutable rights, but as privileges granted by the legislature - as "favors granted." Jefferson's reply did not address their concerns about problems with state establishment of religion - only of establishment on the national level. The letter contains the phrase "wall of separation between church and state," which led to the short-hand for the Establishment Clause that we use today: "Separation of church and state." - Source
The take away from all this is that this letter, which expressed the views of one man only, has played a pivotal role in church/state judicial actions. Yet the letter has no lawful authority whatsoever and the contents cannot be found in the Constitution. This kind of activism is decidedly anti-Constitutional and dangerous to your liberties.

Others: There are a score of documents both historical and modern that are outstanding reading if you wish to place the Constitution in context. Some of these documents also aid in understanding the Constitution and its relevance to modern times as well. But, a caution, like the above specific examples they are not superior to the Constitution and cannot be substituted for the literal text.

Beware the Media

As we noted above, the Federalist papers et al were actually essays published in a newspaper. They were editorials. Well written to be sure. And they were convincing enough to win the debate on Federalism. But, the fact remains that they were nothing more than the mass media of the day.

Today we have papers, television, blogs, forums and other gluts of the information age. No judge would dare to base his opinion on anything derived from any of the media. Yet, as noted, the Federalist papers are virtually holy-writ.

Today's media wield an enormous amount of political power. If you cannot figure out who they want for president, then you are blind or ignorant. Strike that, you may also be simply apathetic.
Apathy is how the media plays us all for fools by not delving deep into all aspects of the candidates. Apathy is how the media gets away with not noting the fact that laws we pass are not constitutional. Apathy is how the media can report one sided issues and not pursue it any longer than it takes to fill space on television. Instead of in depth reporting of issues in an unbiased manner, we are programmed to go for the quick sound byte.

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