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24 March 2009

America's Constitution: Part II

Quite some time ago, I started reading America's Constitution: A Biography, and blogged about the preface. I'm still munching away at the book, and thought I'd post a bit about it again. It's part of my ongoing effort to remedy my own appalling ignorance about America's Constitution in order to be educated enough to do my duty as a member of the body known as "We, the People."

Chapter 2: New Rules for a New World


Unicameral: Having or consisting of a single legislative chamber.

Bicameral: composed of two legislative bodies

Statesmen: 1. a person who is experienced in the art of government or versed in the administration of government affairs. 2. a person who exhibits great wisdom and ability in directing the affairs of a government or in dealing with important public issues.

Magistracy: 1. The position, function, or term of office of a magistrate. 2. A body of magistrates. 3. The district under jurisdiction of a magistrate.

Magistrate: a civil officer charged with the administration of the law.

Ex post facto: Ex post facto law, a law which operates by after enactment. The phrase is popularly applied to any law, civil or criminal, which is enacted with a retrospective effect, and with intention to produce that effect; but in its true application, as employed in American law, it relates only to crimes, and signifies a law which retroacts, by way of criminal punishment, upon that which was not a crime before its passage, or which raises the grade of an offense, or renders an act punishable in a more severe manner that it was when committed. Ex post facto laws are held to be contrary to the fundamental principles of a free government, and the States are prohibited from passing such laws by the Constitution of the United States. --Burrill. --Kent.

Bill of Attainder: an act of legislature finding a person guilty of treason or felony without trial.


Congress: Although there had been a "Congress" under the Articles of Confederation, the new Congress, under the Constitution was considerably different and in many ways much more powerful than the old Congress had been, although now it was exclusively a legislative body and one of three branches of the government, rather than a single preeminent continental body. But this change was not without risks:

Precisely because the new Congress could make enforceable law operating directly on individuals, it posed a vastly greater risk to liberty than had its predecessor. ... As the Philadelphia drafters explained in an official letter accompanying their proposed Constitution, "the impropriety of delegating such extensive trust to one [unicameral, undifferentiated] body of men is evident." (Page 58-59)

To solve this problem the founders put a number of "checks" in place to limit the power. These were far more nuanced than the usual "checks & balances" among the branches of the government they tell us about in school. The two houses check each other by rejecting unconstitutional legislation, and the executive also checks by vetoing or refusing to enforce unconstitutional laws. But the most interesting commentary was on the judiciary:

"Grand Juries could refuse to indict whenever they doubted a criminal statute's constitutionality. Trial juries, widely viewed as the lower half of a bicameral judiciary, likewise had the power (and perhaps even the right and duty) to acquit with finality in such cases, even if the bench had already adjudged the law to be constitutionally sound. Within this larger context, judicial review was less a unique attribute of judges than a symmetric counterpart to the constitutional negatives enjoyed by coordinate branches." (Page 61)

By separating the various powers of the government, the Founders were enshrining the rule of Law. Congress makes the laws, but they don't enforce them. It makes it harder to play favorites. Specifically prohibiting ex post facto laws and bills of attainer were limits placed on Congress to further ensure the rule of Law and maintain liberty.


Although there are a number of intragovernmental checks designed to limit the government to its proper place, it would appear that the ultimate check placed on the government is the People. We, the People, need to know our rights and duties and love our freedoms if we wish to maintain them. The problem is that the teaching required to do this has been gradually excluded from the public schools, until people don't even see the value in having it there, or object because it's "too political." While there is a fine line to walk between teaching government and endorsing your own politics in the classroom, it seems criminal that my "civics" course focused more on the proper use of birth control than it ever did on any civic matters. The very word "civics," meaning "a social science dealing with the rights and duties of citizens" should indicate that there will be serious consideration given to the Constitution, but I don't recall much if anything useful being offered in that class. I do recall feeling like it was a waste of my time. I was irritated that it was a required class and felt like I could have found something better to do with that hour. Now I look at the education commonly given to the People with outrage: our freedoms are at stake, and people don't even know it! There is much more to knowing your civic duty than knowing that there are three branches of government with checks and balances designed to keep them in their place. But it takes effort to learn it, and requires more than just a brief overview of the history of the Revolution. The Constitution needs to be more than just a footnote in American History. Civics class needs to teach civics.

Can it possibly be a coincidence that as the government moves further and further from its' Constitutional grounding education also included less and less of the principles that guarantee us our freedoms? I suspect trying to find out which caused the other is rather like trying to find determine if the egg or the chicken came first: an exercise in futility. But the solution seems clear enough: education must include significant treatment of the Constitution, and the reasons that the Founders did and did not do things. In addition to books like this biography, the Federalist and Anti-Federalist Papers seem like good starting places. They are certainly on MY reading list!


Jeannetta said...

Well said!

Ritsumei said...

Thanks! It's a great book. I've learned an amazing amount from it, and I'm far from the end. The more I read about the Constitution the more I realize that much of our current excess of government is the People's responsibility: we should fire the folks that don't respect the rule of Law. There was an example in the book where that very thing happened. In 1778 Congress passed & President Adams signed a bill making it a crime to criticize Congress or the President. Thomas Jefferson made that the "issue" of the next election, and proceeded to get elected president, which a great deal of turnover in Congress. There was impeachments, and Jefferson pardoned everyone that had been convicted, and the law was allowed to expire. No judicial review at all, yet an unconstitutional law was dealt a fatal blow. (see page 61)

Ritsumei said...

That is, there was a judge impeached, and folks who had been convicted were pardoned.


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