Sometimes, it is worth doing a quick check. Are the things in which you strongly believe, in good order, undergoing change or under assault? This is a good thing to do, in one’s personal life, in one’s health regimen, in one’s interactions with friends and family, and in one’s interactions with colleagues. But there is a prime directive to do that ‘quick check’ on a much larger scale. In the United States, each day brings news of corruption, malfeasance and lies. This is not a partisan comment, or at least not completely a partisan comment. It happens under all political regimes, and that is why the Constitution is so important. So, the ‘quick check’, in this instance, is not about people and parties and the common foibles of lowly men. It is about the high intentions of the Constitution and whether all American officials – who swear to protect and defend it – have read it, know it and understand those intentions. Are those intentions in good order, undergoing change or under assault? If you live in Europe, you might ask yourself the same questions.
The idea of going through the text of the Constitution and ‘checking-off’ abuses doesn’t sound like an interesting way to write a blog. I’ve gone through that exercise, and it’s not pretty. But here’s something that caught my eye in recent days and worth sharing. Lawyers, concerned citizens and especially politicians keep going back and forth on what the founders intended, and whether, or not there could be discussion of the constitution as a living document for new generations. I’m not taking up the liberal cudgel here, I’m just stating fact. The founders have already told us exactly what their intentions were and the scope of them. There is no ‘wiggle room’. It’s all in the ‘Preamble’.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,(sic) promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
There it all is, in simple language. The reason for the 7 Great Articles that follow. Foremost in the minds of revolutionaries that have thrown off oppressive government, is the concept of Justice. In this case, justice for all people in equal measure, later ratified in the fourteenth amendment. Equal protection under the law is first. Corollary to that is domestic Tranquility – the subsequent fruit of a just society. The common defense of that just and tranquil society seems natural enough. It was a new and bold idea that the people should promote their general Welfare as a common goal – whether seen as farming rights in the early 1800’s or as medical rights in the new millennium. The general Welfare is a prime directive of the founders, and not a play thing for politicians and budget wonks. And the best one of all – the Blessings of Liberty to ourselves and our Posterity.
Liberty is a large, far reaching, yet simple concept to define. Two definitions strike me as particularly noteworthy. As Justice Brandeis and Samuel Warren wrote in their 1890 essay for the Harvard Law Review, it(liberty) is ‘the right to be let alone’…to do the things one wishes to do. Freedom stems from this same argument, and to paraphrase President Ronald Reagan- as he fought the harsh regime of the former USSR, “there are no such things as freedoms – there is only Freedom – and the erosion of it.” Our current President should take note of how far we came in those dark days of the 1980’s and how similar the Russian regime remains today. While he’s in his bedroom slippers, reading the Constitution – as I’m sure he does every evening – he should have a very close look at Article 3, Section 3 – as should the people who aid him in his work. In the same measure, there are no such things as ‘alternate facts’ – prior to this year known to everyone as ‘lies’. The current hearings in the United States Senate seem to bear all of this out.
The Blessings of Liberty are intended for ourselves and our Posterity. Here the Founders implicitly and explicitly define the intention of the whole document as lasting through the ages to ensure that posterity has the benefit of the Constitution’s gifts, but also are bound by its sense of Justice. They intended it as a living document, that would answer the call of many generations to come. It also seems quite clear that the phrase refers to a person in his biological person, and that of his children, and not corporate entities and latter day fabrications. If originalists and textualists are so keen on the framer’s intent, why ignore the Preamble in which that intent seems clear.
Education of these gifts and their moral arc bending towards justice is a deficit in today’s younger generation. In the 1960s’ 1 in 60 doubted that democracy was the finest form of government. A poor education, apathy and a complete absorption in the nothingness of internet chatter has changed that equation. 1 in 6 today feel the same way. If we are to defend the Constitution and realize its extraordinary benefits – we must promote it, teach it, follow it and above all defend it. If we don’t, some out-of-depth politician, caught up in a fickle crowd-waving spectacle, is likely to undo it.
The General Welfare in the Preamble, suggested a number of things, long before Roosevelt’s New Deal enshrined a collective responsibility towards the least among us. Medical care, helping the homeless, ensuring the untainted air, food and water supply, and yes, an unfettered EPA and other agencies that can report on climate shift that might imperil the safety of the whole shebang, is not a political choice, it’s a clear directive from the founders. Anyone who thwarts these things is derelict in Constitutional duty. I’m not in any way suggesting a welfare state, and no one can accuse the United States of being one, since it languishes way behind the standards set by all the other developed nations, and some of the less developed ones to boot. I am suggesting keeping ‘for profit, money grabbing’ procedures from entering these areas, so that general health, well-being and the future of the planet is not just a column of numbers in some private bank balances – and common sense doesn’t lose ground just because politicians play their useless and endless games of “musical chairs”. This is equally necessary when it comes to Justice, and the idea of equal protection of the law. The disgraceful back and forth on North Carolina’s HB2 should never have happened in the first place. It has done just enough damage to remain a slur on a whole group of citizens and remains – in its repealed format – just a Band-aid on the original wound. It doesn’t suffice for the people it should protect, and it sets precedent for the legislation of bigotry. Flip flopping politics – and in this case religious bigotry – should not be a part of American society in the new millennium. We prove ourselves to be backward and stupid at every step, while the world looks for our leadership.
Upholding the law, preserving and protecting the Constitution and performing duties with honour and distinction is supposed to be the job of all officials in the US. We have a job too, which hardly anyone takes seriously. It’s our job to hold them to account – to ensure that those whom we elect to office in the republican form of government ordained by the constitution i(Article 4, Section 4,) act out the Latin derivation and govern ‘for the people’. Everyone needs to step up, in every passing generation and those who have gone before us have not shied away from taking part in their civic duty. We now have a desensitized, increasingly unaware population who enjoy a freedom that they assume was never hard fought, nor worth fighting for. Will they awake one day to find it gone – living under some version of tyranny that will be the only alternative, and will they recognize that it is gone, or will they meekly bend to the lash, and mutter under their breath that “this is always how it’s been?” If you want to know what that looks like, look to Russia. I get to write this blog, without being thrown from a window or poisoned, because the Constitution and its first amendment demand that I be ‘let alone’ to do so. Which brings me to the first amendment and its connection to the Preamble.
It is no accident, in my opinion, that the framers turned to caveats on religion before they turned to freedom of speech and press, or a well -regulated militia, or the security rights of the Fifth amendment. Of the original seventeen amendments approved by the House on August 24th 1789, the first two were procedural in character, about the composition and pay of members of Congress. What is now our first amendment was originally the third, but nevertheless, the first in a series of stays on the power of government.
It was clear to Thomas Jefferson, a deist if not an atheist, that the trouble caused by warring factions in the name of religion would be the most insidious assault on civic freedom. History had proved it time and again and these letters are an example of why the first amendment’s establishment clause and free exercise clause were deemed necessary.
The address of the Danbury Baptist Association in the State of Connecticut,
assembled October 7, 1801.
To Thomas Jefferson, Esq., President of the United States of America
Among the many millions in America and Europe who rejoice in your election to office, we embrace the first opportunity which we have enjoyed in our collective capacity, since your inauguration, to express our great satisfaction in your appointment to the Chief Magistracy in the Unite States. And though the mode of expression may be less courtly and pompous than what many others clothe their addresses with, we beg you, sir, to believe, that none is more sincere.
Our sentiments are uniformly on the side of religious liberty: that Religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, [and] that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor. But sir, our constitution of government is not specific. Our ancient charter, together with the laws made coincident therewith, were adapted as the basis of our government at the time of our revolution. And such has been our laws and usages, and such still are, [so] that Religion is considered as the first object of Legislation, and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights. And these favors we receive at the expense of such degrading acknowledgments, as are inconsistent with the rights of freemen. It is not to be wondered at therefore, if those who seek after power and gain, under the pretense of government and Religion, should reproach their fellow men, [or] should reproach their Chief Magistrate, as an enemy of religion, law, and good order, because he will not, dares not, assume the prerogative of Jehovah and make laws to govern the Kingdom of Christ.
Sir, we are sensible that the President of the United States is not the National Legislator and also sensible that the national government cannot destroy the laws of each State, but our hopes are strong that the sentiment of our beloved President, which have had such genial effect already, like the radiant beams of the sun, will shine and prevail through all these States–and all the world–until hierarchy and tyranny be destroyed from the earth. Sir, when we reflect on your past services, and see a glow of philanthropy and goodwill shining forth in a course of more than thirty years, we have reason to believe that America’s God has raised you up to fill the Chair of State out of that goodwill which he bears to the millions which you preside over. May God strengthen you for the arduous task which providence and the voice of the people have called you–to sustain and support you and your Administration against all the predetermined opposition of those who wish to rise to wealth and importance on the poverty and subjection of the people.
And may the Lord preserve you safe from every evil and bring you at last to his Heavenly Kingdom through Jesus Christ our Glorious Mediator.
Signed in behalf of the Association,
Neh,h Dodge }
Eph’m Robbins } The Committee
Stephen S. Nelson }
President Jefferson’s Reply:
Messrs. Nehemiah Dodge, Ephraim Robbins, and Stephen s. Nelson
A Committee of the Danbury Baptist Association, in the State of Connecticut.
Washington, January 1, 1802
Gentlemen,–The affectionate sentiment of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist Association, give me the highest satisfaction. My duties dictate a faithful and zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature would “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association, assurances of my high respect and esteem.
Jan. 1. 1802
(The text of these letters is taken from wallbuilders.com and no copyright infringement or illegal activity is intended by their reproduction here. I imagine in wall building, the one they wish to sure-up is the one that separates Church and State. I am in complete agreement with their sentiments. )
The constitution demands that ‘congress shall make no law respecting the establishment of religion, nor the free exercise thereof.’ For all those who think the Muslim ban is ok, it’s a Constitutionally prohibited action. Don’t blame the judges in Hawaii or Seattle. They are just following their marching orders set down in 1789. For all those who would use the ‘free exercise clause’ to have state or national law compel religious practices on the general populace, including biblical views of science or sex, (HB2 etc.) should understand that the free exercise option – if codified in law would then have to recognize ‘sharia’ under the equal protection measures of the Constitution. The equal protection clause is an impregnable fortress of jurisprudence. Be careful what you wish for. The Baptists of Danbury, Connecticut were not afraid of Muslims or Hindus or Buddhists. They were afraid of their fellow Christians, namely the Methodists of Danbury, Connecticut.
Theirs and Jefferson’s point is the only one that rings true. We must remember it, and keep it front and center in reference to our whole canon of Secular Law.
that Religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions
All the intentions of the Preamble could easily be destroyed by a religious war. We’ve seen it before. To think it can’t happen is to be unaware and/or shortsighted. Ask the people of Aleppo, or the Kurds in Northern Iraq or the people of Northern Ireland, or the Iranis and the Iraqis, or the Pakistanis and the Indians. Their long-standing animosities are no more valid than the school boy who claims to his friends that ‘his daddy is the best daddy in the world’ and then goes home bloodied after a schoolyard scuffle. It’s time we put these childish obsessions aside.
Justice, Domestic Tranquility, Defense, General Welfare and the Blessings of Liberty for ourselves and our posterity, depend upon it. Building the wall on our southern border is as useless as the politician, politics and policy that calls for it. As President Jefferson exhorted us to do – let’s build up the wall between Church and State. This is a fight worth fighting.