Time to Review our "Fundamental Principles"

We have just elected our 45th president. Therefore, this is an ideal time to review the principles which have come to be America's "fundamental principles."

The principles that I am referring to appear in our Constitution and our Bill of Rights. But they appeared some 13 years earlier in The Virginia Declaration of Rights, written by George Mason, and adopted by the 1776 Virginia Constitutional Convention. Jefferson, who drew our Declaration of Independence, and the men who drew our Constitution, respected and borrowed lavishly from Mason's Declaration. Here are some excerpts:

"Section 1. All men are by nature equally free and independent and have certain inherent rights ... which ... they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

"Section 2. All power is vested in, and consequently derived from, the people ... magistrates are their trustees and servants and at all times amenable to them.

"Section 3. Government is ... instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes ... of government, that is best which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration. When any government shall be found inadequate or contrary to these purposes, a majority of the community has an ... inalienable ... right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

"Section 4. That no man, or set of men, is entitled to exclusive or separate emoluments or privileges from the community ... neither ought the offices of magistrate, legislator, or judge to be hereditary.

"Section 5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken. The vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.

"Section 6. That elections of members to serve as representatives of the people, in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assembled for the public good.

"Section 7. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.

"Section 12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments. ...

"Section 15. That no free government, or ... liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles."

I have omitted Sections 8 -11, and 13 and 14 owing to space limitations. Eventually they became amendments tow and four through eight of our Bill of Rights. Mason generally is deemed the "Father of our Bill of Rights."

Note that George Mason not only sets out his principles, but frequently explains the need for them. If all men are equally free and have inherent right" to life and liberty, and to pursue happiness, and possess property, they cannot deprive their children (who are also "men") of those rights. Public officers are "trustees and servants."

The best governments produce "happiness and safety;" and protects against "maladministration." Nobody is entitled to "special emoluments or privileges."

Public officers, after "fixed periods" of service, should return to private life. Nobody, including the president, has the power of "suspending ... the execution of laws."

"Free government, and the blessings of liberty" can only be preserved by "frequent recurrence to fundamental principles."

George Mason was one of three delegates to the 1787 Constitutional Convention who refused to sign the proposed Constitution -- largely because it contained no Bill of Rights.


Posted: QCOline.com November 20, 2016
Copyright 2016, John Donald O'Shea

"Divine Right" Judges - Death of Representative Government

With the death of Supreme Court Justice Antonin Scalia, the U.S. Constitution, as it was understood by the men who drafted and ratified it, is one vote away from being a dead letter.


In 2015, the U.S. Supreme Court decided Glossip v. Gross. The issue was whether the drug cocktail Oklahoma chose to effect a murderer’s execution, violated the 8th Amendment’s ban on cruel and unusual punishment.


Not content with deciding that issue, Justice Stephen Breyer, employing his “modern view,” wanted to declare the death penalty unconstitutional in all cases:


“Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment.”


Justice Scalia relying on “original intent,” disagreed:


“Not once in the history of the American Republic has this Court ever suggested that the death penalty was impermissible. The reason is obvious. It is impossible to hold unconstitutional that which the Constitution explicitly contemplates. The Fifth Amendment provides that ‘[n]o person shall be held to answer for a capital ... crime, unless on ... indictment of a Grand Jury, and that no person shall be deprived of life ... without due process of law.”


“Nevertheless, today Justice Bryer takes on the role of the abolitionist ... arguing that the text of the Constitution and two centuries of history must yield to his ‘20 years of experience on this Court.’”


Justice Scalia has been called an “originalist” -- that is, someone who tries to construe the Constitution consistently with the intent of the founding fathers.


What is original intent?


Many Americans, including many who should know better, choose not to understand the meaning of original intent. By way of example, the 4th Amendment provides “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ... particularly describing the place to be searched, and the persons or things to be seized.”


When the 4th Amendment was adopted in 1789, automobiles and airplanes didn’t exist. “Original intent” does not require that cars and planes be excluded from 4th Amendment protection; rather, it requires they be accorded protection comparable to that given to 18th century coaches.


Our Constitution was not a document drafted by philosophers. Almost every line included was designed to insure that the abuses of the English kings, who claimed to rule by divine right, did not come to America. America was to be ruled by law, not by royal whim. That is the meaning of Article VI supremacy clause, “This constitution, and the laws of the United States which shall be made in pursuance thereof; ... shall be the supreme law of the land; and the judges in every state shall be bound thereby.”



Constitution supreme law


Note that our constitution, and not the fiat of a king or president, is the “supreme law” of the land.


But if the “intent of the men who created the constitution” is to be abandoned for more “modern” or “progressive” constructions, then whose intent should be utilized? Barack Obama’s? Donald Trump’s? Jesse Jackson’s? David Duke’s?


There are nine Supreme Court justices. Does each have a right to construe the constitution according to his own lights? Did we eschew governance by the “divine right kings” only to replace it with the “divine right of judges?”


With Justice Scalia on the bench, Americans were assured of a judge who would attempt to follow the law as it was given him by the founders, rather than make it up or change it to comport with his more enlightened notions of what the law should be.


Presently there are four judges on the court who read the constitution in a way so that it comports with their more enlightened notions of what the law should be. If the Senate confirms a fifth, the constitution as the founders understood it, is a dead letter. It will be an era of “divine right” judges.



Posted: March 16, 2016, QCOline.com


Copyright 2016


John Donald O'Shea