The Constitution of the USA

Let's talk about our Constitution. What Constitution you ask.  The one written by our founding fathers on a few sheets of paper along with it's Amendments and easily understood by almost anybody, or the one that really exists as a result of a myriad of court decisions down through the years and only understood by lawyers who specialize in Constitutional Law and even disagree among themselves. This one would fill volumes and would take days to read thoroughly.  And, by the time you finished it would be changed again.  Not by constitutional amendment but by the courts.
     We have discovered "rights" in the constitution that would mystify Madison and the original signers. We have also discovered that the federal government has a lot more power than we could glean from reading the archaic piece of paper called the Constitution.
     The US Constitution is very specific in the powers given to the federal government.  Somehow the power to regulate interstate commerce clause in the constitution has been interpreted to encompass almost anything the congress wants to ram through. And, if not congress then the Supreme Courts have had their say in deciding that the written document doesn't really mean what it says. The Tenth Amendment might as well not exist at all. 
    The Supreme Court has become a political institution where the qualifications for appointment and confirmation is very much dependent on the appointees position on a few touchstone issues.  Chief amount them seems to be the position on abortion (at least at the moment).  A liberal wing of the Senate wants the candidate to be for it and the social conservative wing of the Senate wants the candidate to be against it, otherwise no confirmation.  The candidates history in the field of law and knowledge of the constitution seems to have no bearing as long as they have the right political beliefs.  
     It is easy to see the political biases of the justices on the court as so many rulings come down as five to four with each members vote along party lines.  If the conservative, read Republican, members are the majority then the ruling is likely to be more in line with the constitutional constraints.  But, not always.  We get fooled every now and then.  Witness the recent ruling on Obamacare,  where it was found the penalty for not buying health insurance was a tax and therefore constitutional. Strange stretch of logic there. And this from a staunch conservative, or so we thought. 
     If the original Constitution had been written by Harvard and Yale graduate lawyers it would likely take two large volumes, or more, and be so filled with legalisms that hardly anybody could understand, not even other lawyers. The people who wrote the actual Constitution wrote in pretty plain language and almost anybody can understand it. Except lawyers of course, but they're a different breed. 
      Down through the years the courts have made some rather strange decisions, not all of them overturned by later courts. The Dredd-Scott decision is one of them, which overturned a State court decision and strengthened the case for the slave States to regain control of former slaves that now lived in non-slave states. That really wasn't corrected until 13th and 14th Amendment. In the 1896 case of Plessy v. Ferguson it was held that segregation in the schools, buses, and other facilities was perfectly OK. Separate but Equal.   Of course there was only separation, not equality in the schools. In 1890 and confirmed in 1922 the Supreme Court decided that Baseball, and by extension all professional sports, did not fall under the Sherman Antitrust laws and the Reserve Clause was valid.  This allowed baseball owners to, in a real sense, enslave the players. This was overturned in 1975 after a long legal battle and two dismissals by the Court of earlier suits brought by Curt Flood of  the Cardinals. This and some other rather strange decisions by the court have been overturned by later actions. 
     The court really does seem to reflect the times more often than not.  It isn't likely that the Johnson civil rights laws would have been enacted in an earlier time, but if enacted the the courts would have leaned on precedence from earlier decisions and would have upheld the state challenges. That didn't happen of course. The mood of the country had changed, mainly due to the TV coverage of what was happening in the south during the riots that were occurring at the time in defiance of the segregation laws. 
     Let's for just a moment review just what the archaic piece of paper, the Constitution, actually spells out. I know that this will be boring for those folks that already have read and understand the Constitution, but for the few that haven't,  I will try to give a Crip- Notes version as follows:

     First let's discuss the basic constitution without the amendments.
The basic document is written as 7 articles with sections under each article expanding on the articles intent.

Article I -Lays out the structure of the legislative branch of the new government

• Section 1- Specifies that all legislative powers shall be invested the Congress of the United States consisting of the Senate and the House of Representatives.  
•  Section 2- Details the responsibilities and make up of the House of Representatives. Defines age requirements, terms of office and other details. Also details the original makeup of the House and how the occupants of each State shall be counted in determining the number of Representatives for that State. (Indians (not taxed) are excluded and slaves count as 3/5 of a person.   
• Section 3 does the same for the Senate    
• Sections 4 through 6 defines the rules compensation, elections and other procedural matters concerning the members of the legislature. 
• Section 7 defines who does what on revenue bills (the House is responsible for originating all revenue bills) and defines how they are passed and the extent of the Presidential veto.  

Section 8 Clearly defines the powers given to the federal government by the Constitution. This where the wicket gets sticky.  It states that Congress shall have the following powers,and only those powers which are so defined.

1. Lay and collect taxes
2. Borrow money on credit of the US
3. Regulate commerce -with foreign nations, among the States and Indian Tribes. 
4. Coin money and fix standards for weight and measures. (The interesting thing here is that Congress has abdicated their responsibility to create money to a private organization run by the bankers, The Federal Reserve. Look at your money sometime.)
5. Provide punishment for counterfeiting.
6. Establish a Post Office and Post Roads.
7. Establish protection for science and useful arts (Patent Office)
8. Constitute lower courts
9. Declare war
10. Raise and support Armies (funding limited to two years; The Congress was fearful of a standing Army and did not wish to establish one.)
11. Provide and maintain a Navy
12. Make rules for the government and regulation of the armed forces.
13. Provide organizing, arming and disciplining the Militia.
14. Exercise legislation for what is essentially all federal government property.
15. Make laws for carrying out the above delineated powers.  

• Section 9 defines the limits on Congress.

1.  Provides that persons imported to the states prior to 1808 shall not be prohibited, after that a tax can be imposed. (This was clearly a sop to the slave states)
2.  Prevents the suspension of habeus corpus, except in times of rebellion or invasion. 
3. No ex post facto laws shall be passed.
4. No tax or duty shall be levied for exports from any State. 
5. No preference for any State in matters of commerce nor can States levy duties for commerce between states.
6. Withdraw money from the treasury, except as required by  law. Receipts and Expenditures must be published
7. Confer no title of nobility.

• Section 10 defines limits on states powers

1. Essentially says---No state can enact laws that are in conflict with the limitations on the federal legislators, nor may they enact actions that are the proper domain of Congress. I.e see powers and limits on Congress. The State may coin Gold or Silver coinage for payment of debts and other obligations. (Don't know any State that has ever done that). 
2. No state shall lay a duty of tonnage, keep troops or ships of war in time of peace or enter into compact with another state or foreign power to engage in war.

Article 2  --Lays out the structure of the executive branch. 

• Section 1- defines how the President is elected, compensated and succeeded in the event of inability to continue in office. (Some of this was modified later by the 12th, 20th and 25th Amendment.)
• Section 2 -Establishes the Civilian power over the military. Names the President as Commander in Chief of the Armed Forces.
•  Section 3 - Establishes the requirement for a periodic "State Of The Union"  assessment by the President. Convening of Congress to be addressed is optional. (In fact few of the earlier Presidents exercised that option. They just sent a letter to Congress).
• Section 4 -Establishes the ability and reasons to impeach.

Article 3. ---Defines the scope of the Judicial Branch

• Section 1 -Gives judicial powers of the USA to one Supreme Court and such inferior courts as the Congress shall establish. They serve for life and shall be compensated.
• Section 2 - Trial by Jury. Specifies that all crimes except for impeachment shall be accorded the right of Trial by Jury. Specifies that judicial power shall extend to all cases rising concerning almost everybody such as Ambassadors, between states, the citizens of different states, etc.( Modified by the 11th Amendment.)
• Section 3 -Treason.  Defines the meaning and specifies the requirement for trial.

Article 4. --The States

• Section 1 -The citizens of each State shall be entitled to the Privileges and Immunities in the several States.
• Section 2 -States Citizens, Extraditions - Specifies that full credit shall be given the to the public records, Acts, Articles and Judicial proceedings of every other state. Extradition for crimes committed in another State shall enforced. Also says that escaped slaves in another State are the property of the original owner and will be returned. (This clause was superseded by the 13th Amendment.) 
• Section 3- Defines how new states shall be admitted.
• Section 4- Specifies that every state shall have a Republican form of government.

Article 5 --Specifies that this Constitution can be amended and how that is to be accomplished.

Article 6 - Debt, Supremacy, Oaths. 

• Specifies that all debts contracted under the Articles of Confederation shall be binding. Specifies that all Treaties made shall be the law of the land. All offices of the United States and it's States shall be bound by an oath of affirmation to support this constitution. No religious test shall be required as a qualification for office or public trust.

Article 7--Ratification

• Specifies how this Constitution shall be ratified. 

 That's it for the original Constitution.   

Now the Amendments.  The first 10 are generally called the Bill of Rights, and their obvious purpose is to protect the people from the power of government. Our founding fathers really feared big government and what it was capable of doing. 

Amendment 1-- Freedom of Religion, Press, Expression

• This amendment specifies the basic Four Freedoms that we talk about a lot.  It says that Congress shall establish no religion, abridge the freedom of speech or the press, or the right of the people to peaceably assemble and to petition the Government for redress of grievances. 

Amendment 2 --Right to bear arms.

• Specifies that the right to keep and bear arms shall not be infringed. (This one has a lead in statement that has caused a lot of controversy through the years. i.e. the statement that this is required because a well regulated militia being necessary for the security of a free state. The Supreme Court up to this point has ruled that this statement does not impinge on the basic right. That might change in the future with newer Courts, who knows.) 

Amendment 3--Quartering of Soldiers

• Specifies that no soldier shall be quartered in any house in time of peace and in war except in a manner defined by law.

Amendment 4--Search and Seizure

• Specifies that searches and seizing of property or persons shall only be done with a proper warrant.

Amendment 5 -- Trial and Punishment

• Specifies that all civilian crimes must be presented for indictment to a Grand Jury. Implements the concept of  immunity under double jeopardy. Declares no person shall have to testify against themselves, and that life, liberty or property shall not be taken without due process of law. 

Amendment 6 - Right to a speedy trial and Confrontation of Witnesses

Amendment 7- Specifies that in suits of common law over 20 dollars, that citizens have the right of trial by jury.

Amendment 8- Specifies that there shall be no Cruel and Unusual punishment for crimes and the there shall be no excessive bail.

Amendment 9- States that the rights granted by this Constitution shall be not construed to deny other rights retained by the people. (This is a strange one. It implies that there are certain inalienable rights not contained in the Constitution that shall not be infringed. One can think of a lot of discovered "Rights" that the founding fathers never thought of that would fall under this banner, and that Congress shall not pass laws prohibiting those 
"Rights". This where the courts get involved, big time. But, it doesn't give Congress the leeway to "discover" these rights and enact them into law.)

Amendment 10- States that all powers not delegated to the United States by this Constitution shall be reserved to the States, or to the people. (This may very well be the most ignored Amendment to the Constitution, as the Federal Government imposes its will on the States and the Citizens in an ever increasing amounts).  

Amendment 11 - Judicial Limits.  Limits the judicial reach of the federal courts. Does not extend to any suit of law or equity brought by a citizen of one state by the citizens of another state, or by citizens or subjects of any foreign state.

Amendment 12 - Specifies how the President and Vice President are chosen.

Amendment 13 -Abolished Slavery

Amendment 14 - Citizen Rights

• Essentially gave former slaves full citizenship. 
• Essentially specified that former slaves will be counted as one person in determining the election of representatives and other public office. 
• Forbade any person who formally held a public office and had sworn allegiance to the United States by oath and had participated in insurrection or rebellion against the United States from holding public office.  They gave a way around that requirement however.
• Specified that the public debt to put down rebellion shall not be questioned and the United States nor any State shall assume any debt or obligation incurred in aid to an insurrection or loss of property or emancipation of slaves.  

Amendment 15- Gave the right to vote  to all citizens of the United States without account of race, color, or previous condition of servitude.

Amendment 16 - Legalized the Income Tax

Amendment 17- Specified that Senators shall be elected by popular vote. 

Amendment 18 - Established Prohibition

Amendment 19 - Gave Women the right to vote and forbade denial of any right accorded to any citizen of the United States. 

Amendment 20 - Really updated and modified the terms of the President and Congress, how they are elected and various contingencies if the President Elect dies before taking office.

Amendment 21 -Repealed the 18 Amendment

Amendment 22 -Limited the President to two terms of office. 

Amendment 23 - Specifies that the District of Columbia shall have Electors for the election of the President and Vice President of the United States proportioned to the population of DC, but not to exceed the smallest State.

Amendment 24 Bars the Poll Tax

Amendment 25 - Spells out the new rules for Presidential Disability and succession.

Amendment 26 - Sets the voting age at 18.

Amendment 27- Limiting Congressional Pay Increases. Simply says the Congress cannot give itself a raise in mid session.  

     That's it---Our whole written Constitution with all it's amendments. 
     The interesting and perhaps disturbing thing is that nowhere in that written document can one find a provision that gives the Federal Government the right to enforce a lot of programs that we take for granted. And some we don't.  The Constitution clearly gives the Feds the right and obligation to provide for and maintain the interstate transportation systems, whether by land, water or air. Also, to raise an Army and Maintain a Navy along with the obligation to fund the development of equipment for the Armed Services to employ in their missions. It requires that the Federal Government develop and maintain a Postal System, whether that's a good thing or not.   
      But, exactly where does one fit Obama Care into the picture. Or for that matter, a great number of social programs that the Feds now fund with ever increasing parts of the national budget. Even borrowing money to do so. The disturbing thing is not that some, if not most, of the social programs are needed and worthwhile, but rather that they're being funded at the expense of the clear mandate of the Constitution to provide the infrastructure to promote interstate commerce and to provide for the defense of the country. And doing so without the power, as delineated in the Constitution, for them to mandate and support these programs.  
     Court decisions down through the years, especially since the FDR New Deal regime have found words in the Constitution that would escape normal people and determined that the Congress has the right to pass these "Entitlements" and charge the American taxpayer for the privilege. So the real Constitution is not just the words on a few sheets of paper signed by the founding fathers and modified with legally adopted Amendments over the years, but rather a whole host of expansions, interpretations and modifications that have been advanced over the years.  So many that a whole field of study is devoted to Constitutional Law.     

Have fun everybody.      .