Understanding Constitutional Issues and Founding Principles
Explore key assumptions behind the constitution, the implications of pre-existing rights, and the founders' concerns about democracy. Delve into the concept of government power amidst the sea of liberty and the dangers of factions and passions in governance.
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Presentation Transcript
Selected Constitutional Issues 4,500 words 100 days IPI.org
Key Assumptions Behind the Constitution Presumption of liberty. Sovereignty (source of authority) is outside of government NOT government. Government is NOT the people. Government is not the country. An institution. Recognizes & protects (does not create) rights. Rights are pre-existing and not limited. Recognizes limitations and tendencies of human nature. IPI.org
Some Implications Our rights are NOT limited to those spelled out in the Constitution. Constitution does not create rights and is not a list of rights. Founders assumed the people had an enormous number of rights and that it would be impossible to list them. Constitution limits government power, not the rights of the people. Even where it spells them out Our rights come from natural law, human dignity, our Creator IPI.org
Islands of government power in a sea of liberty, or Islands of liberty in a sea of government power IPI.org
How Many Times Does the Word Democracy Appear in the Constitution? IPI.org
How Many Times Does the Word Democracy Appear in the Constitution? Zero. IPI.org
Founders Were Afraid of Democracy In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. James Madison The evils we experience flow from the excess of democracy. Elbridge Gerry I been taught by experience the danger of the leveling spirit. Elbridge Gerry IPI.org
Factions & Passions By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community. Passion never fails to wrest the scepter from reason. Had every Athenian been Socrates, every Athenian assembly would still have been a mob. -James Madison, Federalist #10 IPI.org
A Republic, Not a Democracy Democracy = majoritarian decision making. Founders believed that majoritarian decision making was antithetical to freedom. The majority would always find ways to exert tyranny over the minority. Majoritarianism was to be walled off (House of Representatives) The licentiousness of the legislatures proved the necessity of a Firm Senate. The object of this 2nd branch is to control the democratic branch. -Gouverneur Morris IPI.org
A Republic, Not a Democracy The use of the Senate is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch. The proper use of Parliaments is to be a curb on the extravagancy of power, of the highest standing power: But if they themselves become the standing power, how can they be a fit curb for it? -Isaac Pennington, 1651 -James Madison IPI.org
A Republic, Not a Democracy The Founders never imagined Congress sitting in Washington all year making laws. They imagined Congress passing budgets and dealing with such emergencies as might arise. Popular sovereignty is beneficial when it checks the power of the legislature. Popular sovereignty becomes dangerous when legislatures are seen as a surrogate for the People themselves. IPI.org
A Republic, Not a Democracy If we assume that the legislature stands in for the People, then anything the legislature does is done by the People. This allows the legislature to do anything it wills. The original purpose of our legislators was to protect our liberties from the natural tendencies of government Your job as a legislator is not to do good things for me or to solve my problems, but is rather to protect my liberties. IPI.org
Where Did We Go Wrong? Progressive Era Rejection of the Founding That was then, this is now. John Dewey criticizing Jefferson Government as solution to all problems If gov t is to solve all problems, it must be big. Direct election of senators Progressive Era made the New Deal and the Great Society possible. Courts presumption of Constitutionality No where in the Constitution does it say that the courts have to defer to the legislature. (Obamacare) IPI.org
Recipe for Disaster Presumption of Constitutionality, requires judges to uphold a law if they can find any possible legitimate reason why a legislature might have enacted it. (Roberts) Bad Progressive Era & New Deal Supreme Court decisions IPI.org
Where Did We Go Wrong? Since the adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power. Randy Barrett There are several processes for amending the Constitution, but judicial construction is not one of them. IPI.org
Key Assumptions Behind the Constitution Presumption of liberty. Sovereignty (source of authority) is outside of government NOT government. Government is not the people. Government is not the country. It s an institution. Recognizes (does not create) rights. Rights are pre- existing and not limited. Recognizes limitations and tendencies of human nature. IPI.org
Key Bad Supreme Court Decisions McCullough v. Maryland (1819), expanded the Necessary and Proper Clause Slaughter-House cases (1873), undid the Privileges and Immunities Clause Wickard v. Filburn (1942), expanded the Commerce Clause Williamson v. Lee Optical (1955), judges must automatically side with the legislature if at all possible. IPI.org
How Do We Restore the Lost Constitution? States can reassert their rights against the overreach of the federal government Governors Attorneys General Legislatures Supreme Court that rejects presumption of Constitutionality. Should be willing to invalidate laws that are not Constitutional Amend the Constitution IPI.org
Is the Federal Government the Exclusive Judge of Its Own Powers? It will act that way unless resisted Virginia and Kentucky amendments of 1798. Written by Jefferson and Madison States have the power to declare federal laws as unconstitutional and void Fugitive Slave Act was nullified by several states IPI.org
4th Amendment and NSA Spying The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Searching and storing phone, text, Internet, credit card records without probable cause and without specificity. IPI.org
It Doesnt Matter Whether Its Well-Intentioned I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it. -Thomas Jefferson IPI.org
Additional Resources Hillsdale College Constitution 101 Federalist Papers Randy Barrett Books Terms of Engagement: How Our Courts Should Enforce the Constitution s Promise of Limited Government, by Clark Neily Restoring the Lost Constitution, by Randy Barrett IPI.org
