Constitutions Page

7/31/2019 Constitutions Page

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Constitutions

CONSTITUTION, government. The fundamental law of the state, containing the

principles upon which the government is founded, and regulating the divisions of

the sovereign powers, directing to what persons each of these powers is to be

confided, an d th e ma nn er it is t o be exercised as.

Definition from: A LAW DICTIONARY ADAPTE D TO TH E CONSTITUTION AND

LAWS OF THE UNITED STATES OF AMERICA AND OF THE SEVERAL

STATES OF THE AMERICAN UNION by J ohn Bouvier (1856 Ed.)

Here is how Const itut iona l scholar Henr y Black defines a Const itut ion:

HANDBOOK of AMERICAN CONSTITUTIONAL LAW

by Henry Campbell Black, LL. D. Fourth Edition; West Publishing Company. 1927

Constitution Defined - 3 . . .

A constitution differs from a statute or ordinary act of legislation in three important

particulars:

(1) It is ena cted by th e people as a whole( th at is, by vote of the qu alified

electora te) who ar e to be governed by it, inst ead of by their r epresen ta tives in

a congr ess or legislatu re.

(2) A const itu tion can be a brogated, r epealed, or m odified only by th e power

which creat ed it, nam ely, the people in t he sense st at ed above, whereas asta tu te m ay be repealed or changed by the legislatur e. The people, however,

can modify or r epeal th eir const itu tion only th rough t he mediu m of a

const itu tional convent ion or const itu ent ass embly, or by affirm at ive vote on

amen dment s or on a n ew const itut ion du ly submitted by the legislatur e. In

th ose stat es where th e initiative and r eferendum ar e in use, the pr ovisions of

th e const itu tion ar e as bindin g on t he people in th e exercise of th eir

legislative prerogative as upon the legislature, that is, these devices cannot

be used to alter t he const itut ion in a ny oth er mode than as t he const itut ion

itself provides. [Sta te v. Dixon, 59 Mont. 58, 195 P. 841; Sta te v. St ewar t, 53

Mont . 18, 161 P . 309; City of Ft . Collins v. Pu blic ut ilities Comm ission, 69

Colo. 554, 195 P . 1099 ]

(3) The pr ovisions of a const itu tion r efer t o the fund am ent al pr inciples of

government an d th e establishment an d guar an ty of liberties, instead of being

designed merely to regulate the conduct of individuals among themselves.

[Const itut ions an nounce principles, while stat ut es apply t hem. Spr oules v.

Sta te, 97 Tex Cr. R. 561, 262 S. W. 757.] But th e ten dency towar ds


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am plificat ion in modern const itu tions derogat es from t he pr ecision of th is last

distinction.

At present there are at least 51 Constitutions operative in the United States of

America. There are th e Const itut ions of th e 50 states of th e Union, and the

Const itut ion of th e United St at es. I say at least 51 becau se man y of th e stat es ofth e Union ha ve more tha n one Const itut ion. As an example, Californ ia ha s two an d

Oklahoma h ad a t least six different versions t ha t h ave been foun d as of th e dat e of

this writing.

As noted a bove by th e fam ous J ohn Bouvier, a Const itu tions essent ial element is

that it is, containing the principles upon which the government is founded, and

regula tin g th e divisions of the sovereign powers You will note t ha t in Bouviers

definition, nothing appear s about regulat ing Citizens. That is becau se, at least in a

free nation, it is T h e P e o p l e , in agreement with each other, who create the

Constitution for the sole purpose of establishing, defining, and limiting the scope of

government.

"The Constitution is not an instrument for the government to restrain the

people, it is an instr um ent for t he people to restra in th e government ."

-- Pa tr ick Hen ry

Every stat e of th e Union ha s a distinct an d unique Const itut ion of its own. Of

course if you are a state Citizen, as opposed to a citizen of the United States

[federa l citizen], th en you should at tem pt t o locat e your st at es origina l Const itu tion

becau se tha ts th e one th at establishes the t ru e and origina l stru ctu re, powers, and

limitations of your state governmentat least when the state addresses you. [Seethe Citizenship location within this website for the distinctions between state

Citizens an d citizens of th e Un ited St at es.]

All state laws must be made pursuant to the Constitution of the state and all

federal laws must be pursua nt t o th e Const itut ion of th e Unit ed Sta tes. Laws tha t

are manifestly incompatible with the language or intent of the Constitutions are

nu ll, void, an d unen forceable. While it is comm only under stood tha t a Supr eme

court of a state, or the United States, will declare a law unconstitutional, most

people fail to recognize that the first step in that process is for a Citizen to decide,

for himself, tha t a law is incompa tible with th e Const itut ion an d refuse to obey th e

law. In other words, if we never t ake a sta nd, all laws will be presumed to beConst itu tiona l. It is only thr ough t he belligerent a ctions of a na tions Citizens th at

laws ar e brought un der r eview and th en can be judicially declared u nconst itut iona l.

Const itut ions must be read and interpr eted in plain English. One should take int o

account the way certain words or phrases may have been used or defined at the

time the Constitution was drafted, and how they may differ from the use or


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definitions now in effect. The use an d definitions of words or phr ases a s th ey

existed at th e time the documen t was wr itten m ust cont rol th e int erpret at ion of th e

provision(s) un der review. Becau se most pre-Civil War Const itu tions ar e

intentionally succinct, significant weight must be given to the intended meaning of

each section. If the inten ded mean ing is not imm ediately clear from t he lan guage of

the document, the original intent can be ascertained by review of the historicalcont ext of th e issue being addr essed and goals th at mu st h ave been in t he minds of

th e fra mers of th e Const itut ion as th ey wrote th e words. Usua lly th e auth ors an d

signers of a Constitution will have written privately and/or publicly about the

docum ent or th e various issued addr essed within. Such writings have been

routinely used to establish the exact meaning of various parts of Constitutions.

Additiona lly, as we ent er t he 21 st century, many of the questions we may ask have

already been an swered by various Su preme cour ts.

Constitutions are not living documents as is contended by some ignorant and

verbose commen ta tors. Becau se a Const itut ion defines th e str uctur e, powers, an d

limitations of the government, such elements are fixed, except as such may be

alter ed by th e am endment pr ocess. When a Const itut ion includes langua ge th at

protects per sonal libert ies (somet imes called na tu ra l right s or God-given right s),

these provisions must remain in effect, and remain fixed as they are for all time.

They are not subject to modification by amendment because no one, not even our

fellow Citizens, ha s th e aut hority to deprive us of our libert y. If th e Const itu tion in

question is a Constitution that is operative in America, there is the added aspect

that such Constitutions are controlled by the principles espoused in our Declaration

of Indepen dence. In th e Declar at ion of Ind ependen ce it sta tes,

all men are endowed by their Creator with certain unalienable Rights,that among these are Life, Liberty and the pursuit of Happiness. T h a t t o

s e c u r e t h e s e r i g h t s , G o ve r n m e n t s a r e i n s t i t u t e d a m o n g Me n , deriving

their just powers from the consent of the governed, - T h a t w h e n e v er a n y

F o r m o f G o v e r n m e n t b e c o m e s d e s t r u c t i v e o f t h e s e e n d s , i t i s t he

R i g h t o f t h e P e o p l e t o a l t e r o r t o a b o l i s h i t , and to institute new

Government.

In other words, if a Constitu tion wa s alter ed in such a wa y as t o diminish persona l

liberties or remove their protections, then the government constituted by that

Constitution would cease to be a valid government and the Citizens would be

greatly just ified in u sing what ever m eans n ecessary to bring tha t governmen t t o anend.

As our society grows in size, evolves socially, and advances technologically, various

issues that have never before been tested upon the Constitution will need to be so

tested. It ha s been th is way since th e first sta te Const itut ion was creat ed and it is

still th at wa y today. Fortu na tely, since th e natu re of ma n hasn t cha nged in


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thousands of years, the principles contained within these constitutions remains

valid an d enduring. When all is said and done, the underlying purpose of a

Const itu tion is to keep the wa ys of men in check.

Let no more be said about the confidence of men, but bind them down from

mischief with t he chain s of th e Const itu tion.-- Thoma s J effers on

At t his point it is probably pruden t t o explore why ma ny sta tes ha ve more th an one

Const itut ion. Pr ior to the Civil War, each stat e of th e Un ion ha d but one

Const itut ion in existence. There was no apparent need for more tha n one becau se

that single document could be amended by a vote of the People of the state.

However, with the advent of the 14 th Amendment to Constitution of the United

Sta tes, th e lan dscape was radically alter ed. [See Citizenship page on this website

for the distinction between state Citizens and citizens of the United States.]

Citizenship under the 14th Amen dmen t, is not a r esult of ones birth right

[un alienable right], as is the citizenship sta tu s of a sta te Citizen. The stat us of

citizen of the United States (aka federal citizen) is one that is bestowed by the

Const itu tion. In oth er words , th e st at us of citizen of th e Un ited Sta tes is a

sta tu tory privilege gran ted by the government .

The original Constitutions of the states were created by T h e P e o p l e of the states

and were designed to serve the de jure [legitimate] state Citizens. As su ch , t h ese

C on s t i t u t i on s l i m i t ed t h e o p er a t i on of g ov er n m e n t i n t h e m a n n e r r e q u i r e d

for a d d r essin g st a t e Ci t i z en s . However, th e stat e government s were not boun d

by the same limitations when governing federal citizens because these federalcitizens did n ot ha ve the sa me pr otections from government interference as do state

Citizens. [See case law on th e lack of righ ts of cit izens of th e United St at es.] As

can be s een from t he following US Supr eme Cour t holding, federa l citizens do not

inheren tly possess the sam e rights as do stat e Citizens:

The right to trial by jury in civil cases, guaranteed by the 7 th

Amendmentand the right to bear arms guaranteed by the 2nd

Amendmenthave been distinctly held not to be privileges and immunities

of citizens of the United States guaranteed by the 14 th Amendmentand in

effect the same decision was made in respect of the guarantee against

prosecution, except by indictment of a grand jury, contained in the 5 thAmendmentand in respect of the right to be confronted with witnesses,

contained in the 6 th Amendmentit was held that the indictment, made

indispensable by the 5 th Amendment, and trial by jury guaranteed by the 6 th

Amendment, were not privileges and immunities of citizens of the United

States, as those words were used in the 14 th Amen dmen t. We conclude,

therefore, that the exemption from compulsory self-incrimination is not a


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privilege or immunity of National citizenship guaranteed by this clause of the

14 th Amendment.

Tw ining v. New J ersey, 211 US 78, 98-99

[See cas e law for m ore cour t r ulings on th is subject.]

One can clearly see that when dealing with federal citizens, a state could act with

mu ch grea ter flexibility. It could act toward federal citizens in ways tha t would be

un const itut iona l if done to sta te Citizens. So why did this require new sta te

Cons tit ut ions? In section 1 of th e 14th Amendment, it st ates:

All persons born or naturalized in the United States, and subject to the

ju r isdict ion ther eof, a re cit izen s of the Unit ed St a tes a n d o f t h e S t a t e

w h e r e in t h e y r e si d e .

By ratifying this language, the states agreed to consider federal citizens living

with in th eir border s, a form of sta te citizen. We say, a form of becau se th ese

federal citizens could not lay claim to the unalienable rights expressed in

Declaration of the Independence, and thus were plainly in a different class of

citizenship. [See Citizenship page on th is website for th e distinction between sta te

Citizens and citizens of th e Un ited Sta tes.] When th e st at es agr eed to consider

federal citizens as a form of state citizens, it raised significant state Constitutional

issues not the least of which was that these new citizens were not a party to the

origina l st at e Const itu tions! These new citizens were not T h e P e o p l e , and never

could be. The origina l Const itu tions of th e st at es were writ ten by and for Th e

P e o p l e of the sta tes, not t hese n ew hybrid (State/Federal) citizens.

Normally these non-de jure state Citizens would simply have been considered aliens

within the state, but the 14 th Amendm ent cha nged th at . The individual sta tes of

the Union now needed to create a new State government (operating in parallel to

the de jure state government) that was established under a Constitution by and for

these hybrid citizens, with their different set of privileges, immunities, and

disabilities. To achieve th is end, th e legislat ur es of th e stat es of th e Union crea ted

new Const itut ions un der which to govern t heir n ew hybrid citizens.

These new Const itut ions are not const itut ions in th e tr ue sense. A tr ue

Constitution creates a government of, by, and for, T h e P e o p le ; T h e P e o p le being

the de jure Citizens of th at society/comm un ity/na tion. These new Const itu tions areactually nothing more than statutory laws that are dressed up as Constitutions

an d referred t o as su ch. The origina l Const itut ions of sta tes adm itted to the Un ion

before the Civil War are based on the fundamental beliefs and concepts espoused in

th e Declara tion of Independence. Sta te const itut ions dr afted after t he Civil War

mu st be stu died with a car eful eye.


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Under the long standing and well-settled doctrine of citizenship law, a person

becomes a Citizen at birth, by the fact of the land upon which he is born, without

th ere being any law necessary to gra nt him such citizenship. This is exactly th e

basis upon which state Citizens become Citizens of their respective states.

However, 14 th Amendment citizens would have no citizenship at all were it not for

th e adoption of th e Amen dmen t. This mak es their citizensh ip a fiction of law. AConstitution can only be created by real Citizens of the land and the government

that is created by a Constitution can only govern these Citizens of the land (and

aliens within its borders); that is because the government (at least in America)

mu st der ive its power from Th e P e o p l e .

Now, here we approach fundamental issue there is no such thing as a legitimate

govern men t t ha t governs only fictions of law. And while federa l citizens obviously

are real people, their citizenship is a fiction of law, thus rendering their

const itut ion a mere sta tu te (creat ed by th e de jure sta te legislat ur e) an d their newly

formed [parallel] State government a mere appendage of the legitimate and

origina l, sta te governm ent . Un fort un at ely, we have long ago come to a place wher e

th e mere a ppendage is far larger a nd m ore well recognized th an th e origina l and

legitimat e stat e govern ment .

Amending a Constitution

Amending a Const itut ion is th e act of legally cha nging the docum ent in such a way

as t o achieve a desired political objective, and m ak e th at objective th e Supr eme Law

of th e lan d. In genera l term s, an a mendm ent ma y cha nge th e docum ent by adding

to it, tak ing from it, or m odifying existing elemen ts of it. However, not every

element of a Const itut ion is open to amendm ent.

While the method of amending a Constitution is generally fixed by the original

language of the document, the reasons for amending a Constitution are without

specified limits. They can be as pra gmat ic as deter mining th at a provision within

th e docum ent does not function very well in pr actical applicat ion, or as wh imsical as

th e tr an sient mora ys of an era. The 11th Amendm ent to the U S Const itut ion would

be a good example of the former, while the 18 th Amendment would be a good

example of the lat ter.

The steps required to amend a Constitution are generally to be found within themain body of the Constitution and must be followed precisely if an amendment is to

lawfully become a part of th e Const itu tion. While differen t Const itu tions man dat e

different procedures for the amendment process, there are several practical steps

tha t are fairly universal:

! Draft th e amendment.

! Explain its implicat ions t o the legislat ure a nd T h e P e o p le .


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! Pr omote it. Reinforce why it n eeds to become a par t of th e Const itu tion.

! Vote on it .

! Certify tha t t he am endment received the r equired num ber of votes.

Once certification is complete, the amendment then becomes an official and lawful

par t of th e Const itut ion. However, becau se certa in element s of a Const itut ion a renot open to amendment; amendments that trespass upon those areas may be

declar ed un const itu tional by th e cour ts, if cha llenged.

The three principle purposes for amending a Constitution are the following:

1) To esta blish a right as a pa rt of th e nat ions Const itu tional law.

2) To protect a right alrea dy un ders tood to exist.

3) To expand th e governm ent s au th orit y.

4) To fur th er limit th e governm ent s au th ority.

Whether an amendment, or a part of the main body of the Constitution, each

provision of a Constit ut ion falls with in two cat egories. The first being self-

execut ing; th e second requiring t he legislatu re t o enact legislat ion to implement t he

int ended pu rpose of th e provision.

"A constitutional provision may be said to be self-executing if it supplies a

sufficient rule by means of which the right given may be enjoyed and

protected, or t he du ty imposed ma y be enforced."

Cooley's Constitutional Limitations, 7th ed., p. 121; Winchester v. Howard,

136 Cal. 432, 439 [64 P. 692, 69 P. 77, 89 Am.St.Rep. 153]; People v. Hoge, 55

Cal. 612. [15 Cal.2d 463]

It sh ould be noted th at th e legislatu re ha s th e prerogat ive to ena ct laws t o protect a

right cont ain ed in a self-execut ing provision. An exam ple of th is would be voter

registr at ion. By requ iring voter s to register , a citizens votin g right s are secur ed

from abu se by non-citizens.

Further, while a state may impose reasonable and non-restrictive regulations upon

th e exercise of a Const itu tion right s e c u r e d [recognized as pre-existing] to a Citizen

of a state of the Union (such as the voting example cited above), rights g r a n t e d by

the Constitution may be controlled through legislation.

Additionally, It is well settled that a right g r a n t e d by the Constitution may be

waived by th e inaction of th e person ent itled to exercise such r ight.

[Bigelow v. Ballerino, 111 Cal. 559 [44 P. 307]; Gurnsey v. Northern Cal. Power Co.,

160 Cal. 699 [117 P. 906, 36 L.R.A. (N. S.) 185]; Sala v. City of Pasadena, supra ;

Y onk er v. City of S an Gabriel, 23 Cal.App.2d 556 [73 PaCal.2d 623]].
http://login.findlaw.com/scripts/callaw?desthttp://login.findlaw.com/scripts/callaw?dest


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In America, we now ha ve th ree form s of Const itu tions in opera tion. The first is th e

original [de-jure] Const itut ion of a st at e. Unless one initiates a cour t action th at

relies upon a provision of an original Constitution, the states now function

exclusively upon the second form of Constitution - the new state Constitutions for

federa l citizens. The thir d form is th e federa l Const itu tion.

Because the states no longer actively function on their original Constitutions, they

only amen d the newer ones. In a ccorda nce with t he limited protections of federa l

citizens, amendments to these newer Constitutions can address virtually any issue

and can impose restrictions and limitations that are not enforceable upon de jure

sta te Citizens.

The federal Constitution currently has 16 amendments that have been added since

th e docum ent wa s rat ified by th e stat es in 1789. These amendmen ts not only var y

in pur pose, but a lso in th e area s an d persons effected. Ther e is a gener al belief in

America that all amendments to the US Constitution apply to all Americans, as

well as t o th e stat es of th e Union. An exam ina tion of th e decisions of th e US

Supr eme Cour t sh ows th at belief to be in er ror.

The first amendment that is illustrative of a significant point is the 13 th . The 13th

Amendment makes involuntary servitude and slavery unconstitutional (except as

pun ishm ent after being duly convicted of a crim e). The Amen dmen t bans

involunt ar y servitu de an d slavery within t he Un ited Sta tes, or a ny place subject t o

t he i r jurisdiction. Plea se note the word th at we have emph asized th eir. This

is the ma nn er in which am endment s and legislation mu st be written if th e law is to

apply with in th e sovereign lands of the 50 sta tes a nd t o their Citizens.

The 14 th Amendm ent works in just t he opposite fash ion. The 14th Amendment

embraces persons born or naturalized in the United States, and subject to the

ju r isdict ion ther eof. Th e phrase , subject to t he ju r isdiction ther eof does not st a te

the plural nature [i.e. their] that is required to refer to the states of the Union.

In the absence of the plural language, the courts have ruled that the law applies

only to federa l places or pers ons. The oth er ma nn er in which federa l law somet imes

addresses this issue is with the phrase, in the United States, and subject to i t s

ju r isdict ion . Bot h phrases shown in th is paragr aph refer only to fed er a l places .

This would be a good place to toss in t hese legal t idbits for you to ponder:

The persons declared to be citizens are, All persons born or naturalized in

th e Un ited Stat es an d subject to th e jurisdiction ther eof. The evident

mea nin g of th ese last words is not mer ely subject in s ome r espect or degree to

th e jur isdiction of th e Un ited St at es, but complet ely subject

Elk v. W ilk in s, 112 US 94, 101, 102 (1884) [emph asis a dded]


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The pr ovision of the Const itu tion of th e Un ited St at es, which gives Congr ess

th e power t o esta blish an un iform ru le of na tu ra lizat ion, is constr ued t o

mean, that the rule when established shall be executed by the State. The

Legislature of California has by express enactment, conferred the jurisdiction

on the District Courts of this State to grant naturalization, according to the

ru les esta blished by Congr ess.Frank N owles Ex Parte, 5 CAL 300 (1855)

The 15th Amendment restricts the federal government and the governments of the

states from denying citizens of the United States the right to vote based on race,

color, or previous condit ion of servitu de. This am endm ent applies exclusively to

14 th Amendm ent citizens. You will notice th at t he 14th Amendment does not give

federa l citizens th e right t o vote, nor did th e Enforcement Act, th e Freedm an s

Bureau Act, or the Civil Rights Act of 1866, upon which the 14 th Amendment was

based. There was mu ch debate in Congress an d in the press after th e rat ificat ion of

the 14th Amendm ent on the subject of black voter s. While a ha ndful of sta tes

allowed blacks to be Citizens and vote, the general consensus was that blacks

should not be perm itted to vote. Int erestingly, ma ny of th e Congressmen a nd

Senators who argued most strongly for the 14th Amendment, decried efforts to

perm it blacks to vote. The 15th Amendm ent en ded tha t discussion.

Th e 16 th Amendment is addressed in t he a rea of this site th at covers income t ax.

The 18th Amendm ent creat ed Prohibition. Weve all hear d the stories especially

about Al Capone. However, once aga in we find familiar lan gua ge being used in th e

Amendment:

After one year from the ratification of this article the manufacture, sale, or

transportation of intoxicating liquors within, the importation thereof into, or

the exportation thereof from t he Un i t ed S t a t e s and a l l t e r r i t o ry sub j ec t

t o t he j u r i sd i c t i on t hereof for bevera ge pur poses is her eby prohibited.

Does th is mea n wha t youre thin king it mean s? Yes! In Cun ard S . S . Co. v. Mellon,

262 U.S. 100, 43 S.Ct. 504 (1923), the US Supreme Court held that the language

Congress used in the Amendment limited its application to areas under the

exclusive legislative jurisdiction of Congress which of course is not the states of

the Union.

The 19 th Amendment, like the 15 th, lays restriction on the governments concerning

interference with voting by citizens of the United States; this time no one can

deny federal citizens t he r ight t o vote ba sed on sex.

The 21st Amendmen t, which r epealed Pr ohibition, is really ra th er fascina ting. As

you just read, in the 18 th Amendment, federal lands and other places of exclusive


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federal jurisdiction were referred to as, t h e U n i t e d S t a t e s a n d a l l t e r r i t o r y

sub j ec t t o t he j u r i sd i c t i on t hereo f . In repea ling th e Amendm ent , Congr ess

describes th ose sam e places t his way:

an y Stat e, Terr itory, or possession of th e Unit ed Sta tes

It is important to note that in federal law, Congress defines various places of

exclusive federa l jurisdiction a s Sta tes. These places ar e not st at es of the Un ion.

They ar e also sometimes r eferr ed to by Congr ess as St at es of th e Unit ed Sta tes.

The 23rd Amendmen t is both illust ra tive an d distu rbing. In this Amendm ent, the

Washington DC is granted the legal right [privilege] to appoint electors to vote for

Pr esident a nd Vice-Pr esident . This amendmen t (an d var ious federal cour t cases)

clearly illust ra te t ha t t he District of Columbia is not a st at e of th e Union. If it were,

it would have been appointing electors since the beginning of our nation to vote for

these offices, and no amendment would have been required to grant them that

privilege.

It is also disturbing in that the people of the District of Columbia are not Th e

P e o p l e who ar e a part y to the US Const itu tion. Why is a Sta te compr ised of

solely non-de jure Citizens being given r ight s commen sur at e with t he r ight s of true

statehood?

The 24 Amendm ent a gain deals exclusively with federal citizens. This time they

ma y not be denied var ious voting rights in th e event th at th ey fail to pay a poll-ta x

or an y oth er ta x.

The 26th Amendm ent a gain deals exclusively with federa l citizens. This time they

may not be denied voting rights based on age, provided that they have reached the

age of 18.

Amendments not specifically listed or discussed were not thought to be relevant the

issues being addressed.

The Constitution In Time of War

Many questions exist as to what steps the government may take in time of war, oroth er na tiona l emergency, concerning the U S Const itut ion. The concern s ra nge up

to and include a concern that the federal government may attempt to suspend the

Constitution.

Let us be clear from t he outset; the Const itut ion pr ovides tha t t he government ma y

alter one element, and one element on l y, during time of war t hat being that the


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government may suspend the right of habeas corpus. Tha t s it! Pe riod! En d of

story!

Since the Foun ding Fa th ers wer e so th orough a s to include th e governm ent s power

to suspend habeas corpus in t ime of war , we can safely and a ccur at ely say th at it is

th e complet e list of th e Const itu tions pr ovisions t ha t can be suspen ded in time ofwar . If th ere was no ment ion at all within t he Const itut ion of what provisions ma y

be suspended dur ing time of war , one might r easonably suggest t ha t t heir failur e to

address the subject was an oversight that may be addressed by Congress or the

cour ts if th ey see fit to do so. However, ha ving th e habeas corpus provision

specifically raised within the Constitution dispels any argument that they had not

th ought fully considered th e issues of th e Const itut ion operat ing in t ime of war an d

reached t he decision th at suspension ofhabeas corpus was adequate to address the

circumstance.

At Original Intent we believe that the Founding Fathers intentionally and wisely

limited the wartime suspension to only the right of habeas corpus in order to

restrain future generations of US officials from using war as an opportunity to

achieve ends not cont emplated by th e Const itut ion. We th ink th at a s in so man y

instances, the Founding Fathers showed great forethought and wisdom in thus

restr aining fut ur e prerogatives. Certain ly our n at iona l history would suggest tha t

if broader powers of war tim e suspen sion wer e available, th ey would h ave been used,

an d likely not in ways of which we would condone.

We must now tell you t ha t th e US Su preme Court ha s ma de egregious decisions in

th is area over th e years. In ma ny instan ces political expediency defeated th e

Const itut ion in t heir decisions. Such rulings can be cau se for both a nger an ddisappointment, but they are not unanticipated.

"...th e Feder al J udiciary; an ir responsible body (for imp eachmen t is scar cely a

scare-crow), working like gravity by night and by day, gaining a little today

an d a little tomorr ow, an d a dvancing it's n oiseless step like a t hief, over th e

field of jurisdiction, until all shall be usurped from the States, and the

governm ent of all be consolidated in to one... when a ll governm ent ...in litt le as

in great things, shall be drawn to Washington as the centre of all power, it

will render powerless the checks provided of one government on another and

will become as venal and oppressive as the government from which we

separated."-- Thomas J efferson, 1821

Who among us can rea d th ose words a nd n ot a feel a sense of drea d; a feeling of fear

for our way of life? This sens e of drea d does not come from th e fear th at such event s

ma y occur in th e fut ur e. It comes from a n imm ediate recognition t ha t t his is exactly

what has been happening in t his nation.


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In many court cases, the decision is incorrect because one side or the other did not

present the proper argument to the court, and thus the proper argument simply

was n ever presen ted t o th e cour t. Alth ough we ha ve no love of judges, for th e rar e

ju dge with conscience, th is must be one of t he most difficu lt momen ts; knowing that

a party is correct in their fundamental position, but having to rule against thembecau se all of th eir ar gumen ts were off-point . In a n effort t o resolve th at p roblem,

lets look a t wh at one Constitut iona l scholar ha s to say a bout th e Const itut ion in

tim e of war :

HANDBOOK of AMERICAN CONSTITUTIONAL LAW

by Henry Campbell Black, LL. D. Fourth Edition; West Publishing Company. 1927

THE CONSTITUTION IN TIME OF WAR.

18. Even in t he supr eme exigency of a wa r in wh ich t he Un ited Sta tes

may be engaged, no provision or guaranty of the Constitution is abrogated,dispensed with, or even suspended.

The Const itut ion of th e Un ited Sta tes is a law for r ulers a nd people equally

in wa r a nd in peace, and covers with th e shield of its pr otection all classes of

men, at all times, and under all circumstances. No doctrine involving more

pernicious consequences was ever invented by the wit of ma n t ha n t ha t a ny

of its provisions can be susp ended du rin g an y of the grea t exigencies of

government . Such a doctr ine leads directly to an ar chy or despotism; but th e

th eory of necessity on wh ich it is based is false, for t he govern men t, with in

th e Const itut ion, has a ll th e powers gran ted to it which a re necessar y to

preser ve its exist ence. (ex pa rt e Milligan, 4 Wall. 123, 18 L. Ed. 281@ 295.)

Indeed, it h as been said th at in times of str ess, such as war or great public

clamor, the const itut iona l restr aint s sh ould be a ll the m ore firmly binding.

(Sta te v. Rowley ( Iowa) 187 N. W. 7.)

And why can t he Const itut ion n ot be suspended dur ing time of war? Becau se the

rights of a st at e Citizen do not come from th e Const itut ion a nd t herefore t hese pre-

existing rights cannot be abrogated by the government and, according to the

Declaration of Independence, the protection of these rights is the sole purpose for

th e governm ent s existence. What you a re a bout to rea d does not a pply to citizens

of the United States because their rights are not pre-existing, but are granted bythe Constitution.

6. T h e c o n s t i t u t i o n s o f t h e Am e r i ca n s t a t e s a r e g r a n t s o f p o w e r

t o t h o s e ch a r g e d w i t h t h e g o ve r n m e n t , b u t n o t g r a n t s o f fr e e d o m t o

t h e p e o p le . T h e y d e fin e a n d g u a r a n t y p r i v a t e r i g h t s , b u t d o n o t

c r e a t e t h e m .


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The state constitutions in this country grant and limit the powers of the

several departments of government, but, generally speaking, they are not to

be considered as the origin of liberty or rights. [ Ex parte Quarg, 149 Cal. 79,

84 P. 766, 5 L.R.A. (N.S.) 183, 117 Am. St. Rep. 115, 9 Ann. Cas. 747; People

v. Warden of City Prison, 154 App. Div. 413, 139 N.Y.S. 277, 29 N.Y.Cr. R.

66.] But with m ore par ticular r eference to the right s called na tu ra l, it mustnow be remarked that they exist before constitutions and independently of

them. Constitutions enumerate such rights and provide against their

deprivation or infringement, but do not create them. It is supposed that all

power, all rights, and all authority are vested in the people before they form

or adopt a constitution. By such an instrument, they create a government,

an d define an d limit t he powers which its a gencies are t o exercise, and th ey

also specify the rights which the constitution is to secure and the government

respect. But they do not thereby invest the citizens of the commonwealth

with any natural rights which they did not before possess. This is shown by

the provision found in the constitutions of many of the states that the

enumeration, in the Bill of Rights, of particular rights or privileges shall not

be construed to impair or derogate from others retained by the people.

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