American History to 1865

The U.S. Constitution II

Professor: Dr. R.J. Rushdoony

Subject: History

Lesson: 9-35

Genre: Lecture

Track: 09

Dictation Name: RR144E09

Location/Venue: Fairfax Virginia

Year:

Now the next clause that we’re considering, Section 8, article 1, to establish post offices, and post roads. This again, has proven to be one of the dangerous clauses of the constitution, in that it has led to socialism to a great extent. There is no reason why private enterprise could not operate the postal service more efficiently than the federal government. As a matter of fact, second class mail now is being delivered much more effectively, and the only reason why it cannot deliver first class is that the federal government prohibits it. There are a great many organizations which will take care of the delivery of second class mail today, and do a beautiful job of it. Now another aspect of this clause is that it permitted the establishment of post roads. Before the civil war one president after another vetoed any kind of legislation to establish post roads. They were afraid of it. They recognized the danger of it. And the Congressmen who were for it were anxious to get federally built roads in their state you see, at another states expense. But the president stopped it, I think John Quincy Adams was the only one who came close to favoring it. But the other presidents vetoed such measures. Well you can see what it has led to. Today you have a federal highway program which goes into every state of the Union. Under the excuse that these are post roads. If the mail is carried over them once a year, why that means the federal government has the right to control, to build and control that road and the surrounding road side.

It would be interesting to see how someone would deal with this, with air mail taking over now. But at any rate, the air routes I imagine under the term of post roads today are subject to the same regulation. This therefore has been a very dangerous problem.

However the balance of this is very good, in that it permits patents and copyright. Here again however, there is a problem in that this is being weakened progressively. A man should have property rights not only in land as a property, and personal property, but a man has property rights really in his ideas. And if you invent something you should have a property right in it. Unfortunately we are progressively weakening the property right in copyrights and patents. This is very dangerous for the future. Because one of the things that enabled this country to grow so rapidly was that Yankee inventiveness was one of the things that created a tremendous burst of industrial expansion. Well now, why was there so much inventiveness? First of all there was freedom, but second of all there were property rights. If you were in the Soviet Union, what incentive is there for anyone to come up with a good idea, when it doesn’t get him anything? He has no property right in it. Some communist star over him takes over the idea, and then it’s his property. The result is he has no incentive to invent.

For example, one foundation puts out a magazine, and it pays very well for the articles, but it has a ridiculous rule that no staff member could be paid for an article, since he is already under salary. Well what happens? Their staff members don’t write articles. Why should they write articles for nothing? They are already doing work in the office every day, so if you write an article you are not paid for it. And the result is they have brilliant writer on their staff that don’t write anything, no pay. You see, if you don’t have a property right, if there is no reward for your labor, there is no incentive. So, the protection of copyrights and patents in the Constitution was a tremendous incentive to initiative, and inventiveness.

Section 8 then goes on to say:

“11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

13: To provide and maintain a Navy;

14: To make Rules for the Government and Regulation of the land and naval Forces; “

And then we come to something extremely important:

“15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”

Now the word ‘militia’ is a word that like silly and farmer has changed its meaning. And today if you go to a dictionary you’ll find a great many meanings. But if you go to a historical dictionary, and look up militia, you will find that an unabridged dictionary gives the history of words, That militia at the time of the constitution meant a drafted army. A drafted army. Now, what does the constitution say can be done with a drafted army? It can be put to only three uses. “To execute the laws of the Union”, that’s the first. In case there is any serious problem, any disorders, any rioting, any violence. The militia, the draftees can be called up, to enforce the laws of the Union. Second, to suppress insurrection, rebellion, revolution. And third, to repel invasions. Now this is a very important clause. It means that only volunteers can be sent outside the boundaries of the United States.

The purpose of this was, and it was very important to men like Washington, they wanted a drafted army, and the power to draft in order to defend the country. In order to protect, both from within and without. They did not want the United States to be involved in foreign wars, and in his farewell address George Washington emphatically came out for what is now called as an insult, “Isolationism.”

He did not want the United States to get involved in foreign wars and in foreign alliances, in foreign entanglements. He was radically against it. Radically. And in the constitution this principle was driven in. That is why before World War 1, in the two military actions outside of the United States, only volunteers were used. What were those two? Yes. (muffled response) Yes. The Spanish American war. In Cuba and in the Philippines, during the Spanish American War, the only troops that were used were volunteers. No draftees. They knew it was unconstitutional. Does anyone know--- and now this is a toughie--- the other case before World War 1 where volunteers went outside of the country to battle? (muffled response) yes, true, that was a volunteer army, and it went into Mexico, it started out by trying to defend the United States, but they actually went in, and your right, that is the second case. There’s a third case however. The Mexican War, the Spanish American War, and what is the third? No--- What? No, this doesn’t apply to the navy, because first of all the naval engagements such as the Barbary pirates under Stephen Decatur were volunteers, they were not a drafted navy. The draft was not applied to the navy until very recent times. It was under General Pershing, the campaign in Mexico, in 1913 I believe, to go after “Pancho” Villa. Yes. General Pershing. They took volunteers into Mexico to go after Pancho Villa.

Now, with World War 1, Wilson demanded a drafted army, to go to Europe. Immediately, great numbers of people filed and went to court on this. The court however was a liberal court that had been somewhat stacked, and so the court delayed on hearing all these cases until after Word War 1, and then they ruled against the draftees. So in effect, they paid no attention to this.

And World War 2, and Korea, and Vietnam, draftees were used outside the territorial boundaries of the United States. This in terms of the Constitution is illegal. So without having any sympathy for the draft dodgers and the card burners, and lefties who were involved we have to say that however wrong they are on what they believe generally, at this point they were in the right. The government in terms of the constitution has no right to do this with a drafted army. But it has been done now 4 times, World Wars 1 and 2, Korea, and Vietnam.

Then at the end of Section 8, there is another clause which is very bad. Now it was harmless the way it was written, but the supreme court has used it to grab vast powers for the federal government. Section 8 concludes;

“18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

A great expansion of power has come through this so-called “implied power clause”. The last clause of Section 8 article 1. Now in article 1 section 9, we have some of the limitations on Congresses power. We won’t go into too many of these, but one kind of limitation is very important to us and we shall consider it. Many people have said that there was no Bill of Rights so to speak, in the constitution, and that it had to be added to the Constitution. Well, a Bill of Rights was added to the Constitution to spell out some things that were not in the Constitution, and to make it clear to the people how strongly their rights were going to be defended, their liberties. But there were specific statements of rights in the Constitution itself, for example in section 9, paragraph 2:

“2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

3: No Bill of Attainder or ex post facto Law shall be passed.”

Then later on:

“8: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

In Article 3, section 2, we have:

“3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State,” (that is, on the high seas) “the Trial shall be at such Place or Places as the Congress may by Law have directed.”

Then in Article 3, Section 3,

“2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

Now here you again consequently have protection of the individual. He had the guarantee of trial by jury. No bill of attainder or expo facto law could detain him, a law that was written after something that says that something that happened before is a crime. Neither can his family be punished for his offenses. So there are definitely protections of the people in the constitution itself.

Now in Article 1, Section 10 there are the limitations on the state:

“1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”

Now sometimes you hear people say that it’s only the states that are required to issue Gold and Silver, but we have seen this comes twice in the constitution. First Congress can only coin money, and now we are told that only Gold and Silver are legal tender, and no state can make anything else legal tender. Now if in all the states of the Union only Gold and Silver can be legal tender, it funny that people claim that Washington can issue paper money, even though it says coin money, they then logically would have to say that paper money can only be used in the District of Columbia, and nowhere else. However, in section 10, The States are given the right to engage in war in case of invasion without waiting on congress. But apart from that they cannot engage in war. That right is reserved to congress.

Now in Article 2 Section 1 we have the Electoral College as well as the executive power of the president, the purpose of the Electoral College was to avoid the influence of congress, to avoid too heavy an influence by voter’s at large, majoritarianism, and to avoid too great a control by the states. As the constitution was originally written, what they expected Congress to do, or the States to do, was to elect electors to the Electoral College, one from each congressional district. Now this is a very important fact, because it would mean that there would be two electors, the Electoral College at large like the two senators, then there would be an elector from each congressional district. The Congressional district would vote in the Electoral College just the way their district voted. So that in the early years of the republic it meant that they, Virginia, would vote for several men for president. Because for each congressional district the men would vote in terms of their district, and how it went. So that Virginia would sometimes cast votes for three or four different men for president in the Electoral College, and New York sometimes would vote for four or five. [17:58}

But around the 1830’s, the city politicians realized that they got laws through their various state legislators, legislature requiring where to take off. So that instead of each congressional district determining how their vote was going to be, the majority vote for the state would determine it, it meant that the big cities now began to control the electoral vote. So instead of all the electoral votes, say of Virginia, going to as many men as were voted on in the district in terms of who won in each district, it all went to the one man who carried the state. Now he might have carried the state by only 300 votes. But he still took all the electoral votes. Now of course this wasn’t entirely fair. But even more, it put the power first in the hands of the big city voters, and second in terms of special interest groups, minority groups. The first group to take advantage of this was the Abolitionist Movement. The Abolitionists were one-issue voters. Their attitude was: “You vote our way,” (They would say to the candidates,) “Or else we will not vote for you.” Well, since the election in many a state in those days was determined, by say, 10 or 20 thousand votes, or 5,000 votes, it meant that 6,000 abolitionists in New York State, who might be only a fraction of the entire vote, could swing the vote between the Whigs and the Democrats. So that all the votes of the Whigs and the Democrats added up to nothing, and a handful of abolitionist were controlling it. Because they were saying to the candidates: “If you don’t do what we say, we’re going to vote for the other man.” And so they would be the swing vote. And the man would say “Alright, I’ll push for anti-slavery legislation.” Or for this or that kind of legislation. Now to this day this weakness remains, because it’s still winner takes all in every state.

So it is not the majority of Republicans, it is not the majority of Democrats, whose will is important in any campaign, it’s the minority vote. It will be how the labor unions and the pressure groups want the candidate to act. And how the colored folk react. Or how, in some areas it will be the masons, in other areas it will be the Catholic, in some areas like the south it will be a protestant group, say the Baptists. In other words it is no longer the will of a people in a district, but the pressure groups that can exercise the swing. As a result our government has been seriously out of balance.

Majoritarianism has led to pressure groups dominating the national elections. They have the swing vote. Every now and then they talk about reforming the Electoral College, but increasingly it becomes less and less likely because today we have so strong a Democratic impulse, and the Democratic impulse in on the part of the minority groups because they know, in the name of Democracy the majority rules, they can’t have the swing vote. To give the majority to whatever party plays ball with them. And the result is the country is in serious trouble because of this.

Now as we continue in the constitution, and I’m not trying to deal with those things that I’m sure you have dealt with in your high school history, but in things that are not normally covered in a study of the Constitution. We’ll skip through some of the passages because our time is very limited. And I do want to deal with as much of it as possible this morning, in fact to conclude it.

One of the interesting things about the Constitutional Convention, is the extent to which Calvinism dominated it. There were 55 men in the convention. The graduates of Princeton who were pupils of John Witherspoon were 9 in number. The greatest single group. Yale and Harvard were more or less puritan also. Yale had 4 and Harvard had 3. Columbia had 2, Pennsylvania 1. William and Mary had 5, 6 or 7 we’re not sure about some of them. 2 were from Scottish Universities, and were again Calvinistic. One was from Oxford, and 3 others had studied law in England. Thus Presbyterianism and New England Theology had a very heavy representation. Very heavy.

The constitution required ratification by state conventions of 9 states, to ratify it. Now it is interesting that one of the big arguments against ratification was for centralized power, and some were honestly fearful of this. One of the men who was very strongly against the Constitution we have mentioned and that was George Mason who wrote a great deal of it but left. Another was Patrick Henry. Both men liked a great deal in it, but they were afraid that more checks and balances were necessary, that the power of the government should’ve been even more restrained. Another man who was part of the Constitutional convention was Luther Martin. Luther Martin was a very brilliant man, but a kind of a difficult and bad tempered person. He wrote an account titled the Secret Proceedings and Debates of the Constitutional Convention. And published it, I have a copy of it, it was for a long time rather rare, but now it has been re-printed. And Luther Martin pointed out that he was afraid the new government was going to be too powerful.

However, in spite of this, and there were real fears by many others that this was a danger, there was also the great danger at that time of anarchy. After all they recognized, many of them, that Washington was right. That had it not been for Washington’s heroic dedication, the entire cause of the revolution could’ve foundered. They could’ve gone down the drain. Because they did not have a real and functioning government. They needed one. As a result there were a number to ratify it. The small states, the weaker states were the first to ratify. They felt the need of a strong federal union. Delaware was the first state to ratify unanimously. Then Pennsylvania was the second state, 43 for and 23 against, and then New Jersey was the third, Unanimous. And then Georgia was the fourth, again, Unanimous. So the first four states to ratify, three of them were the weak small states in population, only one big state, Pennsylvania. Then Connecticut was the next to ratify, and Massachusetts. So they now had two fairly good-sized states, and Massachusetts was the second largest. Then came Maryland. Another smaller state. And south Carolina, and New Hampshire. The vote in Massachusetts and in New Hampshire was fairly close. But with the vote in New Hampshire on June the 21st, 1787, The Constitution became operative. However there was still some danger, would it actually ever take effect? There were still four states that had refused or had not yet ratified. They were Virginia, New York, North Carolina, and Rhode Island. 5 days after New Hampshire ratified it, Virginia did, by a very close vote, 89 to 79, after a long and heated debate. It seesawed back and forth, and at times it seemed that Virginia would not do it. And you can realize that if Virginia and New York had not, the new Constitution would not have gone very far. Because here would’ve been two powerful areas, New York did not yet have the population, but it was strategically an important state. Apart from Washington it would not have been ratified in Virginia.

Because Patrick Henry and George Mason were two very powerful and important men, and on grounds of conscience they opposed it. Now they both knew that they were paying a price for it, Patrick Henry had he not opposed it, could’ve written his own ticket and been president anytime. Even so he was still asked if he would run, but he refused to run for office at all. Then on July the 26th, 1787, New York, 30 to 27 again very close came in. So on November 21, North Carolina came in. Rhode Island staid off until the next year. The reason Rhode Island came in was not because it wanted to, but because now it was a foreign country. And it could not ship anything across the border to the other countries or to the rest of the United States without paying a tax. So, Rhode Island came in for business reasons. And, The result was that now all thirteen had accepted it.

However, the Constitution had been ratified simply because in many states the Bill of Rights had been promised as you probably remember. Now as we look at the Ratification, we have to divide the states, and the reason why they ratified into three groups. There were seven weak states, that ratified readily and easily because those 7 states needed the union, they could not stand alone very well. These 7 weak states needing the union were Delaware, New Jersey, Connecticut, Georgia, and Maryland. As a result these states were very quick to ratify. There were however 4 strong states which however were very weak because of the war, and because of post-war problems. The war had hit them very, very, hard. They had been heavily invaded, or they had suffered serious losses through the war, and although they were strong states, they were very weak temporarily, and therefore they needed the Union. And this was an important practical consideration. These four were Massachusetts, Pennsylvania, New Hampshire, and South Carolina. Then there were four strong states that did not feel they need the Union, but only came in because it was so certain. It had been virtually ratified, that it in fact had been, and so they came in. And these New York, Virginia, Rhode Island, and North Carolina.

Now the Bill of Rights were then very quickly passed to show that indeed they were concerned with protecting the rights of the people. It’s important to recognize what the Bill of Rights include, very briefly we have only about 10 minutes, a minute for each of the ten. The first amendment prohibits Congress from making any law respecting an establishment of religion or prohibiting the free exercise thereof. Now this is very important. This was put in because the clergy demanded it. In state after state. This is the point which many people today misunderstand. They say “The Constitution says nothing about Christianity.” Well the point of it was they did not want any establishment of religion or interference in religion by Congress. Why? Because at that time every one of the thirteen states was Christian. In 9 of the thirteen there was an established church. They did not want congress telling them: “You have to be Episcopalian” if they were Congregationalist. In Massachusetts the Congregational Church was the established church in the state. In other words, there is no separation of church and state, required by the Constitution, except for the federal government. Their attitude was, “Well, Maryland wants to be catholic, fine. If another state wants to be Presbyterian, fine. Or if the state wants to say: “This county can be Presbyterian and this one Episcopalian, and this one Baptist, fine. This is a matter for the state’s to decide. So the Federal Government has to keep its hands off Religion.

This is a State matter and a local matter.” They did not say that the states could not have a religious establishment. Moreover, it impossible to separate Religion and the State. Why? For the simple reason that every law represents morality, it says “Thou shalt and thou shalt not”, so it is an act of morality, and all morality is an aspect of religion. So, every law order, every government is an establishment of religion. Today the established religion of the United States is humanism. The government schools are religious schools, they are teaching humanism. Emphatically. Now I made this point in my book Messianic Character of American Education and some women in California got to see it, and they said “Well if this is true, we do have an established religion in our public school.” And they wrote to the Attorney General at that time, his name was Robert Kennedy, and they asked for an opinion. Well they had to write a number of letters before they got an answer, and finally Kennedy said: “Yes, the public schools are teaching religion, they are teaching humanism, and it is a violation of the constitution, but I’m not doing anything about it.” So he referred them to their own state, to their own local courts for action. So they wrote to the attorney general of the state of California, named Lynch, and they asked him to do something about it. And he finally wrote and told them, “yes their case was legitimate, and the public schools were teaching humanism, a religion.” But he said, “If you don’t like it, go to the courts about it.” And they went to an attorney, and he said: “Well, the cheapest it would cost to prosecute to the Supreme Court, which isn’t likely to pay any attention to you, is a $100,000.” That was ten years ago, today it would take $400,000. So that’s where the matter ended. But we do have an establishment of religion in the United States today.

We have a humanistic view of law increasingly, and humanism taught in the schools, colleges and universities. All this ?___? Congress is doing it. Now, the second amendment. Not only permits the drafted army, but it preserves the right of the people to keep and bear arms. Again they’re infringing on this today. The third, remember we dealt with quartering troops. “No soldiers shall in times of peace be quartered in any house, without the consent of the owner.” Well, no owner is going to consent to it. Unless on a boarding basis where he controls it, so that wipes that out. “Nor in time of war, but in a manner to be prescribed by law.” So we never had any quartering of troops. And the fourth amendment, against search and seizure, apart from warrant. And only warrant to be issued upon probable cause, supported by oath or affirmation particularly describing the place to be searched. And the person or things to be seized. And the fifth amendment, of course, protects a person against an unjust trial, and says that no0one can be a witness against himself. This comes right out of the Bible. Nor can they be deprived of life, liberty, or property without due process of law. Or shall have private property to be taken for public use, without just compensation. The fifth amendment has been much abused in recent years by criminals and communists, but it is still a good amendment. Because whether they are guilt or not, the Bible says that no man can be compelled to testify against himself. It requires evidence to be given by corroboration, by someone who can produce evidence. You see if you allow self-incrimination, then you open the door to torture. To compel you to testify against yourself. This provision against self-incrimination also mean that your family cannot be required to testify against you. In fact, your wife or your husband cannot testify against you. And of course this prevents the kind of horrible situation that you can have in the Soviet Union, where they compel children to testify against their parents, or husband or wife to testify against one another.

The sixth amendment, a speedy trial, and so on. The seventh amendment, Trial by Jury, where anything exceeds $20 in value, the 8th amendment, no excessive bail can be required, or excessive fines imposed, or cruel and unusual punishments inflicted.

The 9th and 10th amendments are very important and very much neglected. The 9th says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, express powers are the doctrine of the constitution. The Federal government has no power except that which is specifically granted. There is no implied power, granted. This is spelled out in the Federalist Papers, as well as here. The 10th, and last Amendment of the Bill of Rights: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, unless the Constitution says that this power belongs to the Federal government, the States and the people have all the powers they did before the Constitution. We have time now, about a minute and a half or two minutes for a quick question or two. Yes.

(Muffled question)

Yes, a speedy trial. That’s a good question. A speedy trial means that the kind of thing that sometimes happened in by-gone days, where a man was thrown into jail, when they knew that he was innocent and the jury would release him, and kept there, year in and year out. Well today, because of the congestion of the courts men are very often denied a speedy trial. And so there is a great deal of concern about this, and some action being taken. This extremely important, because, supposing you are arrested. And your bail is set so high you cannot pay. You see it forbids excessive bail. And they simply defer having a trial. You can sit in jail longer than your prison term would be. If for one reason or another they postpone a hearing or a trial. And this was very commonly done, once. Does that explain that? Any other question? We have time for one more.

(Muffled question about cruel and unusual punishment)

Well of course they didn’t have that in mind, what they had in mind was torture. Now the supreme court and some of liberals have seen fit to read that as Capital Punishment, which is ridiculous. They never intended that to mean Capital Punishment.

What they did bar were tortures. Well, our time is up. And tonight we will turn to De Tocqueville.