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The Constitution and the Congress

Article VI, Clause 3 of the United States Constitution states:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…

As has been the case for every member of Congress since the birth of our nation, members of the 112th session of Congress adhered to this constitutional mandate yesterday.  Before officially accepting the honor of serving the American people in Washington D.C., all of the newly-elected representatives took an Oath to support and defend the United States Constitution.  Their Oath reads:

I, [individual's name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.

In addition, as one of their first acts, members of the House of Representatives will spend time later today reading aloud the supreme law of the land--the United States Constitution.  To remind our newly elected officials of the importance of the Oath that they have just taken and of the Constitution that they have sworn to protect, Matthew Spalding of the Heritage Foundation has written an excellent piece entitled, "Support and Defend: Understanding the Oath of Office."  Mr. Spalding's piece is worth reading in its entirety but here is just a sample of its contents:

At the start of each new Congress, all Members beginning a new term of office (the entire House of Representative and one-third of the Senate) take an oath to support and defend the Constitution of the United States. In doing so, the Members of Congress perform an act that harkens back to the country’s founding and its first principles. As it applies to Members of Congress, the “Oaths Clause” plays an important role by obliging them to observe the limits of their authority and act in accordance with the powers delegated to them by the Constitution. The oath also serves as a solemn reminder that the duty to uphold the Constitution is not the exclusive or final responsibility of the Judiciary but is shared by Congress and the President (per Article II, Section 1) as co-equal branches of the United States government.

While reading through Spalding's writings, I was reminded of a speech that I delivered at the Massachusetts State House last fall at a Constitution Day event held by the Liberty Preservation Society of Massachusetts (Mass. LPA):

Last fall, while doing interning in Washington, I had the great honor of meeting Supreme Court Justice Clarence Thomas.  During our conversation, Justice Thomas told me that before reviewing every case, the first question that he asks himself is: by what authority?  By what authority did the government pass the law in question?  To further explain his point, he used the following example:

If a police officer from Anchorage, Alaska drove down to Massachusetts, entered this room and tried to arrest me, the first question that I would ask him is: by what authority are you arresting me?  Similarly, Justice Thomas insists, when considering legislation passed by the federal government, one must ask himself: by what authority is the government enacting this law?

In my mind, this question raises an even larger one.  By what authority does the government enact any law?  Who gave the government the power to create and enforce legislation?

America is unlike any other nation in the history of the world.  It is the only country in which the people predate the government.  The federal government was not established by the divine right of a king or by military coup.  It is built upon the agreement and consent of the American citizenry.  Because of this, the government does not get its power through force.  The government gets its power from us— it gets it power from the people.  We agree to allow the government to make laws because we want our rights protected from outside forces.  However, we have not given the government limitless amounts of power.  The authorities that we grant to the government are limited and defined and they can be found in the 4,400 word text of the United States Constitution.

You see, the writers of the Constitution were brilliant men.  They understood that politicians have a propensity for power and that, if left unchecked, lawmakers will always sacrifice good government for more government.  So they crafted the Constitution in an attempt to ensure that only certain, necessary laws would be passed.  In the 223 years since the adoption of that text, we as a people have lost sight of their noble goal.  We have traded in the document that protects our liberties and replaced it with the self-righteous opinions of activist judges.

Today there is a great debate over how the Constitution should be read.  On one side are the government growers.  They claim that the Constitution is old.  That it is outdated.  That it is tired.  They say that times have changed and that we need a document that is flexible enough to adapt to the challenges of today.  On the other side of the issue are those of us radical enough to say that the founders knew what they were doing.  We say that there will always be a new challenge, a new crisis, and a new group of people willing to trade our freedoms for an easy solution—but we will not let them.

Still, the government growers continue to insist the Constitution is meant to be read loosely.  They contend that the founders wanted it to be left open to interpretation.  So how can we be so certain that they are wrong?  How do we know that a strict textual reading of the Constitution was what the founders envisioned?  To understand how the Constitution should be read, we need not look any further than our nation’s other founding document: the Declaration of Independence.

The preamble to the Declaration states:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…"

The arrangement of this statement is very important.  I believe that it reveals the role that the founders envisioned for the Constitution.  It shows their core belief that individual rights pre-exist the establishment of a government.

The Declaration begins by referring to the subsequent statement as self-evident truth.  In doing so, the founders insist that it does not merely apply to the colonists.  The Declaration was not written to announce the rights of those living in America in 1776.  It was written to make known the God given rights of every person ever created.  It then goes on to boldly assert the founders’ fundamental belief that “all men are created equal” and that no one life is more valuable than the next.  If all humans share the same rights, then no individual has the authority to rule over or oppress another.

Furthermore, the God given rights shared by all people are “unalienable.”  They are not granted to us by any man or institution.  They are not given to us by the government.  They are “endowed” upon us by our Creator.  And only the God who grants us our rights has the authority to take them away.

Although the founders believed in the unalienable rights of every person, they also understood that there will always be forces in this world that seek to oppress.  Thus they note that in order to protect our rights, we form governments.  Governments themselves have no rights.  They get their authority from the consent of the governed.  Their sole purpose is to protect the rights of their citizenry from outside forces.  And if they fail in that duty, it is the responsibility of the individuals to either fix or dismantle them.

The writers of the Declaration—and subsequently the writers of the Constitution—believed that government’s power comes out of its ability to protect the rights of its people.  We do not receive our rights from the government and thus the government has no authority to take our rights away.

One of my favorite quotes comes from Thomas Paine’s Common Sense.  In it, Paine writes:

[G]overnment even in its best state is but a necessary evil; in its worst state an intolerable one.” 

The founders knew that a government was needed to protect the rights of the American people.  But—after fighting to escape the wrath of British rule—they also knew that governments often commit the most egregious acts of oppression.  So, to insure that Americans would be free from the shackles of government, they wrote the United States Constitution.  The checks and limitations that they incorporated within it were seen as both a safeguard against oppression and an essential way of protecting personal liberty.

The Declaration of Independence reveals that the purpose of the Constitution is twofold.  First, it was written to grant the federal government the authority to create specific and necessary laws.  More importantly, it was written to constrain government power and protect the rights of citizens.

Allowing for an expansion upon the original language of the Constitution threatens both of these goals.  If the federal government exercises powers that exist outside of those found in the Constitution, then its rule becomes illegitimate.  An illegitimate ruler cannot be a just ruler.  And, if the federal government acts unjustly, then it fails in its duty to guard the rights of those that it is meant to protect.  A government that does not protect the liberties of its people is not a government of the people.  It is a government in which the few impose their will upon the many.  History has shown—and continues to show—that this type of government is unsustainable.  The greatest amounts of progress and prosperity known to man have resulted from the adoption of the United States Constitution.  Never before has human innovation developed and flourished so freely.  Never again will our amount of achievement be duplicated.

We come together today at a crossroads in history.  We can either return to the principles that lead to our prosperity, or we can continue down the road of expansive, intrusive government.  If we allow our republic to escape us now, I’m afraid that we will lose it forever.

We cannot let that happen.  We will not let that happen.  It is up to us in the grassroots community to work for and elect leaders who understand the importance of their oath.  It is up to us to pay attention once such leaders have been elected and to hold them accountable.  It is up to us to restore the Constitution that has been all but erased.

Thank you and God bless America.