The United States Has Two Constitutions
The two Constitutions of the United States.
Many people are puzzled and confused about the Constitution. On the one hand, the Constitution is said to be the fixed standard by which the Supreme Court judges the validity of other laws. But on the other hand, the Constitution is said to be so flexible that the Supreme Court changes it by interpretation.
The cloud of confusion lifts as people realize that the United States has two Constitutions. One is the Framers' Constitutionthe written Constitution that was ratified by the people. The second Constitution is the Supreme Court's Constitution.
The Supreme Court's Constitution.
Many people are not aware of the existence of the Supreme Court's Constitution. It was never presented to the people for ratification. It is not even found in any single document. The second Constitution consists of Supreme Court decisions that taken together constitute a separate unwritten Constitution, after the manner of the British Constitution.
It is claimed by most judges and legal writers that Supreme Court decisions merely interpret the Framers' Constitution. While it is true that many Supreme Court decisions are only interpretations, it is also true that many of them really change the Framers' Constitution under the guise of interpreting it.
To an increasing extent, judges and legal writers have begun to say more openly that Supreme Court interpretations actually do amend the Constitution. Usually, such comments include some expression of approval of the concept that the Supreme Court has the authority to make such changes. For example, Professor Leonard W. Levy, a highly respected constitutional scholar and author has written that the Supreme Court
is and must be for all practical purposes a "continuous constitutional convention" in the sense that it must keep updating the original charter . . . it simply cannot decide cases on the basis of what the Constitution says. (Against the Law: The Nixon Court and Criminal Justice, by Leonard W. Levy, p. 29-30; Government by Judiciary, by Raoul Berger, p. 342)
Few people are aware of the way the Supreme Court changes the Framers' Constitution. One reason for this lack of public awareness is the insistence by most judges and legal writers that the changes are only authorized interpretations. [p. 2]
Another reason most people do not know that the Supreme Court repeatedly amends the Constitution is that the changes are referred to as "the Constitution" or "required by the Constitution" thereby giving the false impression that the cases are in harmony with the Framers' Constitution. An example of such usage is the following:
Citing Everson as standing for the proposition that the Constitution requires a wall of separation between church and state, Justice Black, for an 8-1 majority, held that the Champagne program was invalid. (The Supreme Court's Constitution, by Bernard H. Siegan, p. 126; McCollum v. Board of Education, 333 U. S. 203)
While the above quotation indicates that the decision is said to be based on a requirement of the Constitution, there is no such requirement in the Framers' Constitution as will be shown later in this chapter.
Another example is the following quotation from a Supreme Court opinion:
We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats of both houses of a bicameral state legislature must be apportioned on a population basis. (Reynolds v. Sims, 12 L. Ed. 2nd 506, 531)
Although the Supreme Court's decision is said to be required by "a basic constitutional standard," the dissenting opinion by Judge Harlan in that same case points out that there is no such requirement in the Constitution.
The importance of the difference between the two Constitutions.
Many people who are aware that the Framers' Constitution and the Supreme Court's Constitution are different may not realize that much more is at stake than a few incidental variations. The difference between the two Constitutions is of great importance because they result in two profoundly different systems of government.
The Framers' Constitution involves a small federal government.
The Federalist is a series of essays explaining the Framers' Constitution as a part of the struggle to secure its ratification. A major obstacle was concern over the powers of the federal government.
In The Federalist No. 45, James Madison emphasized the limited nature of federal powers under the proposed Constitution in these words:
The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to [p. 3] remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce . . . . The powers reserved to the several States will extend to all of the objects which, in the ordinary course of affairs; concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the State.
Madison's statement was one of many reassuring the people that the powers of the federal government would be limited to those specified in the proposed Constitution. But the people were skeptical and insisted on stronger protection against expansion of federal power.
To satisfy that concern, the Tenth Amendment was adopted to reaffirm indisputably the limited nature of the powers delegated to the federal government. It reads:
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.
The Framers' Constitution makes state authority supreme over federal authority in most matters of daily life.
Under the Framers' Constitution, the authority of the federal government is severely limited.
Most federal government activities are outwardly directed such as defense against invasion and treaties with foreign nations or pertain to matters where more than one state is involved, such as interstate commerce.
Practically all matters concerning the daily lives of the people are handled at the state and local level with the federal government having no right to supervise or interfere.
Specifically, such matters as education, abortion, obscenity, prayer and religion in government and education and other separation of church and state issues, and crime and punishment and the rights of the accused in most criminal cases, and most health and economic and environmental concerns are all matters to be worked out by the people of each state with no interference by the federal government.
In fact, long after the Constitution was adopted some of the states had official state religions. This was recognized as being entirely within their constitutional authority. The individual state religions were gradually eliminated, not because the Constitution required it, but because the people of the particular state decided it was appropriate to do so. [p. 4]
Franklin D. Roosevelt address in 1930.
On March 2, 1930 Franklin D. Roosevelt, who was then Governor of New York, delivered a remarkable address containing an unusually clear and accurate description of the relationship between the state and federal governments under the Constitution.
Later when Governor Roosevelt became President Roosevelt, he did not follow his own description of that relationship. Instead he sought to exercise powers not granted to the federal government under the Constitution, and many of his programs were initially declared unconstitutional by the Supreme Court.
Governor Roosevelt's 1930 address, and the difficulties he later had with the Supreme Court when as President he strove to greatly expand the powers of the federal government, both confirm that as recently as the 1930's the constitutional limitations on federal power were still clearly recognized. A copy of the text of Governor Roosevelt's address is in The American Ideal of 1776 by Hamilton Albert Long, beginning at page 249. The quotations in the following paragraphs are from that source.
After pointing out that the federal government is limited to those powers surrendered to it by the Constitution or its amendments, he described the powers of the federal government as follows:
Now, what are the powers delegated to the United States by the Constitution? First of all, the National Government is entrusted with the duty of protecting any or all States from the danger of invasion or conquest by foreign powers by sea or land, and in return the States surrender the right to engage in any private wars of their own. This involves, of course, the creation of the army and navy and the right to enroll citizens of any State in time of need. Next is given the treaty-making power and the sole right of all intercourse with foreign States, the issuing of money and its protection from counterfeiting. The regulation of weights and measures so as to be uniform, the entire control and regulation of commerce with foreign nations and among the several States, the protection of patents and copyrights, the erection of minor Federal tribunals throughout the country, and the establishment of post offices are specifically enumerated. The power to collect taxes, duties and imposts, to pay the debts for the common defense and general welfare of the country is also given to the United States Congress, as the law-making body of the Nation. (Ibid. pp. 251-252) [p. 5]
He emphasized the limited nature of federal authority by listing the following as among the "great number of vital problems of government" (Ibid. p. 249) concerning which Congress has no fight to legislate.
The conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare and of a dozen other important features. In these, Washington must not be encouraged to interfere. (Ibid. p. 249)
Concerning the danger of centralizing power in the federal government, he said:
Now, to bring about government by oligarchy masquerading as democracy, it is fundamentally essential that practically all authority and control be centralized in our National Government. The individual sovereignty of our states must first be destroyed, except in mere minor matters of legislation. We are safe from the danger of any such departure from the principles on which this country was founded just so long as the individual home rule of the States is scrupulously preserved and fought for whenever it seems in danger. (Ibid. p. 251)
In describing the functioning of our government under which "every citizen is entitled to live his own life in his own way so long as his conduct does not injure any of his fellowmen," (Ibid. p. 252) he said:
As the individual is protected from possible oppression by his neighbors, so the smallest political unit, the town, is, in theory at least, allowed to manage its own affairs, secure from undue interference by the larger unit of the county which, in turn, is protected from mischievous meddling by the State.
This is what we call the doctrine of "Home Rule," and the whole spirit and intent of the Constitution is to carry this great principle into the relations between the National Government and the Governments of the States. (Ibid. p. 253)
Importance of local self-government.
The overriding importance of local self-government to the preservation of freedom was emphasized by J. Reuben Clark, a highly respected lawyer and a member of the First Presidency of The Church of Jesus Christ of Latter-day Saints, in these words:
This (constitutional) system puts the great bulk of our daily life activities in the hands of our own neighbors who know us and our surroundings, and not in the hands of a bureaucrat in a far [p. 6] away national capital . . . . Liberty will never depart from us while we have local self-government controlling and directing matters pertaining to our personal liberties and to the security of our private property; it will not abide with us if we shall lose this local self-government. (Stand Fast by Our Constitution, by J. Reuben Clark, Jr., p. 187-188.)
The Supreme Court's constitution involves a pervasive federal government,
Under the Supreme Court's Constitution the federal government is a pervasive power that exercises compulsory authority even over local matters within the individual states.
In contrast to the Framers' Constitution, the Supreme Court's Constitution empowers the federal government to exercise supervisory control over the state governments, even to the extent of dictating what religious practices it will permit, and what laws the states must adopt and enforce.
The Supreme Court's Constitution authorizes the federal government to assume the role of a guardian empowered to take care of the needs of the people. In conformity with the authority of a guardian to control a child for whom the guardian is responsible, the federal government exercises the right to control the lives and property of the people.
In fact, the Supreme Court's Constitution presupposes a people in need of federal government supervision and control to make right decisions, and federal government help to protect them from the hazards of life.
Impressive sounding arguments are presented to justify the expanded federal role, but it is clearly incompatible with the Framers' Constitution. Furthermore, federal solutions often seem to do more harm than good. That harm typically includes weakening the people, diminishing their craving for personal independence, and undermining their commitment to freedom.
Under the Supreme Court's Constitution, the federal government spends an enormous portion of the people's wealth purporting to take care of their needs. In spite of the heavy burden of taxes it imposes, it still operates with staggering deficits that threaten to undermine the future stability of the nation.
Thomas Jefferson's concern about government under the Supreme Court's Constitution.
Government under the Supreme Court's Constitution is strikingly reminiscent of Thomas Jefferson's warning:
If we can prevent the government from wasting the labors of the people, under the pretense of taking care of them, they [p. 7] must become happy. (The Writings of Thomas Jefferson, by Albert Ellery Bergh, Vol. X, p. 342)
As we consider the enormous concentration of power in the federal government accomplished by Supreme Court interpretation in violation of the Framers' Constitution, the following statement by Thomas Jefferson seems almost prophetic:
It has long been my opinion, and I have never shrunk from its expression, that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body . . . gaining a little to-day and a little tomorrow, and advancing its noiseless step . . . over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will . . . become as venal and oppressive as the government from which we separated. (Prophets, Principles and National Survival, by Jerreld L. Newquist, p. 123)
Reason for focusing on small and large systems of government.
The above material focuses on the massive difference between the Framers' small, limited government system and the Supreme Court's pervasive, large government system. The reason for that focus is to emphasize the fact that two Constitutions are so different that the real existence of a separate Supreme Court's Constitution can hardly be brushed aside as an occasional technical difference of opinion.
That focus on the difference between a small and a large federal government is not intended to imply that there are not many other differences between the two Constitutions.
A more fundamental difference between the two Constitutions.
In addition to the differences between the two Constitutions already mentioned, and many other outward differences not mentioned, there is a more fundamental difference than is usually recognized. That deeper difference is highlighted by examining how each regards freedom and equality.
The objective of the Framers' Constitution is individual freedom of choice. Even equality is treated as an aspect of freedom. All are equal in having the fight to be equally protected in their life, liberty and property from violation by government or by other people.
Under the Framer's Constitution, the needs of the ill or unfortunate are handled almost entirely by voluntary charitable aid. While taxation is proper for legitimate [p. 8] government functions, that does not include violating people's freedom by taking some of their property to give to others.
Some argue that such a voluntary system is not workable today because there are so many in need. The problem today is not that the prior system is unworkable but that actions taken under the Supreme Court's Constitution have multiplied the need.
The Framers' Constitution promotes the people's growth in capacity and independence as they seek to better their own condition. They also grow in compassion and empathy as they voluntarily assist the less fortunate. That assistance may be provided individually or in association with others.
The primary emphasis of the Supreme Court's Constitution is very different. Freedom of choice is supplanted as the main objective. The new main objective is using government as a major source of temporal benefits, including such help as the people need and want. There is great emphasis on equality, including compulsory redistribution of property from those who have more to those who have less.
Under this system, the people are diminished in capacity and independence as they increasingly rely on government aid. Freedom itself is diminished in several ways. As government becomes larger and more bureaucratic, government officials tend to exercise increasing dominion over ordinary citizens. Government programs consist of laws that operate by compulsion. The money to finance them is taken from the people in violation of their God-given right to be protected in the ownership of their own property.
The fundamental difference is theological.
As I compare the Framers' Constitution and the Supreme Court's Constitution, I am struck with the similarity to the two systems described in Moses 4:1-4. The Framers' Constitution is very similar to the Lord's program of freedom of choice and widely differing rewards and punishments depending on individual performance. In contrast the Supreme Court's Constitution is very similar to Lucifer's contrary program of promising equality of reward and eliminating freedom of choice.
In fact, it seems to me that the Supreme Court's Constitution represents the judicial aspect of a larger rebellion or apostasy from the true God-given principles of the Framers' Constitution.
The Supreme Court and separation of church and state.
Recognizing the theological nature of the conflict helps explain the recent Supreme Court separation of church and state cases. I see those decisions as dangerous use of judge enacted law on the side of those seeking to secularize the United States as part of that rebellion against the Framers' inspired Constitution. [p. 9]
It seems to me that many people let themselves be so diverted by the great emphasis on separation of church and state that they fail to recognize how greatly the Supreme Court's usurpation of authority in those cases distorts the Constitution. A brief explanation may be helpful to more dearly see the extent of that distortion.
When the Constitution was flamed, some of the states had official state religions that were referred to as establishments of religion, and some states did not. The states such as Virginia that did not have state religions did not want the federal government to have the power to subject their people to a new establishment of religion at the federal level. The states that still had their establishments of religion such as Massachusetts did not want the federal government to have power to interfere with their official state religions.
The Framers satisfied the desires of both groups by not including any power over local religious practices in the powers delegated to the federal government. Since under the Framers' Constitution the federal government had only those powers delegated to it, the federal government simply had no power whatever over religious practices within the states.
Then when the Bill of Rights was adopted to confirm the limited nature of federal power, the portion of the First Amendment pertaining to religious freedom had two parts to reassure both groups of states.
States without establishments of religion were reassured by the first part that says, "Congress shall make no law respecting an establishment of religion . . ." That meant that Congress could not establish an official state church at the federal level.
States that still had establishments of religion were satisfied by the second part that continues, "nor prohibiting the flee exercise thereof." The word "thereof' refers to "establishment of religion" mentioned in the first part. The second part meant that the federal government had no power to interfere in state establishments of religion.
Thus under the Framers' Constitution, the people of each state could make their own laws respecting religion flee of federal interference. They could not only have official prayers if they wished, but they could even have official state religions (establishments of religion) if permitted by their own state Constitutions.
It is argued that the original intention was changed by the Fourteenth Amendment that gave the federal government authority over the states. But both the assurances given when the Fourteenth Amendment was proposed and the Supreme Court itself shortly after the Fourteenth Amendment was ratified, recognized that the Fourteenth Amendment was limited to protecting the newly freed slaves. It is hard to see how an amendment, authorizing Congress to enact laws to protect the freedom of the former slaves, authorizes the Supreme Court to control state religious practices a century later. [p. 10]
The danger of a secularized United States.
Some claim that the Supreme Court's separation of church and state decisions really aren't of great significance. They contend that even if children participate in prayer in school, it really doesn't mean much to them. But it does matter greatly because the specific individual prohibitions are part of the above mentioned larger effort to secularize the United States.
Those promoting that secularization contend that we are now a diverse society so that it is no longer appropriate to show any preference for God centered religion or Judeo-Christian scriptures. While they profess to desire freedom, many of them seem unaware that it is the Judeo-Christian tradition with its focus on both rights and responsibilities of individuals that makes freedom possible. Without that tradition, freedom itself is in great danger.
The source of freedom.
The philosophical foundation of freedom is set forth in the Declaration of Independence. Here is how Thomas Jefferson expressed it in his Rough Draft before it was edited by others to the more familiar wording:
We hold these truths to be sacred & undeniable; that all men are created equal & independent, that from that equal creation they derive rights inherent & inalienable. (The Declaration of Independence and What It Means Today, by Edward Dumbauld, p. 53)
In other words, freedom consists of a bundle of God-given rights. What makes those rights inalienable is the belief that they are God-given. If we as a people stop believing in God, we lose the foundation ideas our freedom is built on and are left with the consent of government for the basis of our freedom. That basis is not reassuring since history shows that the tendency of government is to deprive people of their freedom. The necessity of continued belief in God for the preservation of freedom was emphasized by Thomas Jefferson, who cautioned:
Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? (Edward Dumbauld, op. cit., p. 59)
The natural habitat of freedom.
Just as certain forms of life can only survive in a particular habitat, there is a certain natural habitat that freedom must have to survive. That natural habitat is a moral and [p. 11] religious citizenry. That is because freedom involves removing external controls on people's conduct. If the people do not have enough inward religious motivation to act reasonably morally themselves, then some kind of external control will be imposed or anarchy will result. After stressing the necessity of faith in a democratic republic, Alexis de Tocqueville wrote:
How is it possible that society should escape destruction if the moral tie is not strengthened in proportion as the political tie is relaxed? And what can be done with a people who are their own masters if they are not submissive to the Deity? (Democracy in America, by Alexis de Tocqueville, Vol. I, p. 318)
Some may argue that a sufficiently moral citizenry can be produced without religion such as by education. That argument was answered by George Washington in his Farewell Address in these words:
Whatever may be conceded to the influence of refined education on minds of peculiar structurereason and experience both forbid us to expect, that national morality can prevail in exclusion of religious principle.
Importance of being aware of the two Constitutions.
It is essential that our people be aware that our two conflicting Constitutions represent infinitely more than a difference of opinion over some technical constitutional provisions. They are part of a deadly struggle over freedom itselfa struggle we can lose if more of our people are not awakened to the danger. These are pivotal times. The outcome can hinge on our individual dedication. [p. 12]