In this series about the U.S. Constitution, we are exploring the natural unalienable rights recognized in the Constitution, keeping in mind the rights to Life, Liberty and the pursuit of Happiness that we covered in the preceding series about the Declaration of Independence. This sixth part covers Articles IV, V, VI and VII, which are the final Articles of the main body of the Constitution. In the seventh part we will cover the first ten Articles of Amendment, also called the Bill of Rights.
Article IV, Section 1, contains the Full Faith and Credit Clause, which requires that each state recognize and give validity to the acts of another state. Section 2, in its first sentence, contains the Privileges and Immunities Clause, which requires that each state recognize as citizens those who are citizens in other states. In its second sentence, it has what we now commonly call the extradition clause, which requires that a state surrender to another state a fugitive from justice in that other state.
In its third sentence, Section 2 of Article IV has what is the most problematic and controversial clause in the entire original Constitution. This clause is particularly troubling when doing an analysis of natural rights, as we are doing. It is in fact contrary to the principles enunciated in the Declaration of Independence: that all men are created equal and are endowed by their Creator with certain unalienable rights. This clause legalized slavery within the federated Republic that the United States became under the Constitution. The clause requires that a state to which a slave escapes must return the slave to his or her master even if the state to which the slave escaped outlaws slavery. This clause was a compromise put into the original Constitution because of the fact that some states were “slave” states and some were “free” states, meaning that in some states slavery was legal and in others it was illegal. The “slave” states required this clause in order to avoid losing their slaves by escapes to “free” states. We look back on this clause as a shameful reminder of the horrible institution of slavery, and as a deviation from the principles contained in the Declaration of Independence. The contradiction that this clause created was so profound that it led to the Civil War in 1861 when Republican presidential candidate Abraham Lincoln was elected President with a platform to abolish slavery. The ruling class in the “slave” states viewed slavery as indispensable to their political and economic power. Slave owners had required the clause in the original Constitution as a condition for the southern states to become part of the Union. When Lincoln presented a threat to slavery, the “slave” states seceded rather than lose it. The consequence was the most sad and tragic event in American history, where states, neighbors, friends and brothers fought one another in a long and bloody war. The Emancipation Proclamation and the 13th Amendment abolishing slavery have superseded the clause.
Article IV, Section 3, provides for the creation and admission of states, and gives Congress power over the territories and possessions of the United States. Section 4 provides that the United States shall guarantee a republican form or government to each state and protect them from invasion and domestic violence.
Article V established the mechanism to make amendments to the Constitution.
Article VI has the Supremacy Clause, which establishes that the Constitution and the federal laws and treaties are superior to the constitutions and laws of the states, and that all judges in every state are bound thereby. This Article also requires that certain public officials take an oath or affirmation to support the Constitution.
Article VI also prohibits a religious test to qualify for an office under the United States. This prohibition may become the focus of litigation in coming years as the distinction between religion and ideology may become more blurred. For example, under current law, it is legal to deny public office or admission to the country to someone who is an avowed communist, but not to someone because of his or her religion. The question will become: What about a person who has an ideology that is contrary to that of the United States, like communism is, but who calls his or her ideology a religion? Sharia law, for example, although part of a religious faith, is also a legal and social order that is contrary to the laws and Constitution of the United States. It will be interesting to see how the issue develops before the courts in coming years.
Article VII put in motion the process to ratify the Constitution by the states, in order for it to become effective. This Article provides a perfect conclusion to our analysis of the main body of the original Constitution because the first ten amendments, known as the Bill of Rights, were the result of that ratification process, as we will see in the next part of this series.
In this series about the Constitution, we are exploring the natural, unalienable rights recognized in the U.S. Constitution keeping in mind the rights to life, liberty, and the pursuit of happiness that we covered in the preceding series about the Declaration of Independence.
The original Constitution is divided into seven Articles, not counting the amendments that were added later. The first four Articles are subdivided into Sections. Article I addresses the Legislative Power, or Congress, and also contains certain prohibitions related to the power of the United States. It provides that Congress shall be an elected body, with its members being elected in relation to the population and the States they represent. This provision reaffirms that the power of Congress resides in an emanates from the people and , by extension, from the respective States that the people have chosen to create. Article I also prohibits certain acts that would adversely affect life, liberty, and the pursuit of happiness. It prohibits ex post facto laws, which are laws that make an act illegal after the act has been committed, when the act was not illegal when committed. It prohibits bills of attainder, which would are laws that impose penalties without a judicial proceeding. It prohibits laws that impair the obligation of contracts, which are laws that change the contractual obligations after the same have been greed by the parties. It limits when the writ of habeas corpus can be suspended. The writ of habeas corpus is a legal remedy to pursue the release of a person that has been illegally apprehended. Furthermore, section 8 of this Article recognizes the existence of the militia, which consisted of all the people capable of bearing their own arms, and which was the originator of the revolution and the key to its success. It authorizes Congress “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” You may remember the , movie The Patriot with Mel Gibson, when his son Gabriel goes to church and says to the men there “I am here to call forth the Militia of South Carolina.” He was calling the ordinary citizens to fight for independence with their own arms. That is the Militia, and it plays an absolutely critical role in the structure of the Constitution. Keep this in mind as we will discuss it again when we analyze Article II and the amendments to the Constitution in future parts of this series.
We then see that in the first Article of the Constitution, the founding fathers were careful in safeguarding basic freedoms, and recognized the existence of our natural unalienable right to be armed for our common defense. In the next part of this series, we will explore Article II which deals with the Executive Power.
In this series about the Constitution, of which this is the fourth part and there are several more parts to come, we are exploring the natural unalienable rights recognized in the U. S. Constitution, keeping in mind the rights to Life, Liberty and the pursuit of Happiness that we covered in the preceding series about the Declaration of Independence. This part covers Article II of the Constitution, about the executive power, which resides in the President.
It is important at the outset of any analysis of Article II, to note that this Article provides that the President and Vice President of the United States shall not be elected by the direct vote of the people, but rather by electors who are appointed by each State in a manner to be directed by the legislature of each State. Each State has as many electors as the number of Senators and Representatives it has in Congress. While this provision has been the subject of much debate, it is actually perfectly consistent with the concept of a representative Republic that the Constitution frames, as opposed to the concept of a direct democracy, which the Constitution avoided. The idea was, and continues to be, that the elected representatives of the people, rather than the people themselves, would run the government to avoid a “tyranny of the masses.” Let’s revisit the movie The Patriot. Remember when Mel Gibson said that he would rather be ruled by one tyrant thousands of miles away (the King of England) than by many tyrants close to home? To avoid such tyranny, the Constitution established a system of checks and balances to avoid anyone, including the majority of the people at a moment of irrational passion, from doing anything that would be threatening to long term orderly liberty. The people elect the representatives, but the representatives run the government within a system that is purposefully made up of subsequent steps, to avoid irrational and passionate actions which may be detrimental to liberty. Thus, the people elect their State legislators and these representatives in turn provide for the appointment of the electors of the State, and then these electors, together with the electors of every other State, elect the President and Vice President by their votes. The election reflects the vote of the people indirectly, first through their Sate legislators and then through the electors chosen by the State legislators. While in theory the electors may elect another candidate, the practice has been that they elect the candidate that received the majority of the popular vote.
The above-described guarded approach to the election of the President and Vice President is further justified by the immense power that is vested in the presidency by this Article II. First, the “President shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States.” This power is huge. It has the potential to make the President an absolute and dictatorial ruler as the commander of all the armed forces of the Nation, including the armed people as a whole, which constitute the Militia. It is opined by many historical analysts that this power was used by President Lincoln during the Civil War to the point that he became in many aspects an absolute dictatorial ruler in order to save the Union.
Subject to the consent of the Senate, the President is the one who conducts foreign policy by entering into treaties, appoints ambassadors, appoints the cabinet, may propose legislation, has some authority on the conduction of legislative sessions, may grant pardons, is entrusted with executing the law, and nominates the judges of the Supreme Court. This prerogative to nominate the judges of the Supreme Court, while subject to the consent of the Senate, is very important due to the power delegated to such court as we will see when we analyze Article III about the Judicial Power.
The Executive Power is by far the most expansive power vested in one person under the Constitution. The President, and in his absence the Vice President, may effectively exercise a monopoly of armed power over the Nation. While this may seem to be in contradiction with the intent to protect our natural unalienable rights, we need to remember that the Founding Fathers were realists, not utopians. They well knew that to safeguard life, liberty and the pursuit of happiness, armed resistance against enemies may be necessary, and that an effective centralized power to direct the same may be indispensable.
We saw in the preceding series how the Declaration of Independence recognized that individuals have natural unalienable rights that cannot be taken away by any government. We also saw that the Declaration of Independence only mentions that among these rights are the rights to Life, Liberty, and the pursuit of Happiness. In this series about the Constitution, we will explore what are these natural unalienable rights within the constitutional context.
Before we enter into the Constitution, we should be clear on the legal differences between the Declaration of Independence and the Constitution. The Declaration of Independence was, as a legal document, just that: A declaration that the Thirteen Colonies were becoming States independent from Great Britain. It is not a “law” proper, but rather a starting point from were a legal system will be established, which legal system will be the one making laws. There is debate among scholars about whether the principles enunciated in the Declaration of Independence are obligatory on the legal system that is thereafter established. The consensus is that technically such principles are suggestive but not obligatory, as the Declaration is not a “law” proper. How important the principles are though, have been subject of great debate, and in many ways such debate was evidenced dramatically in the Civil War, wherein one side affirmed that those principles were applicable to all, while another side said that they were only applicable to some. More recently, the famous “I Have a Dream” speech by Dr. Martin Luther King was predicated on exactly those principles and how they should apply to our modern American society.
The Constitution, on the other hand, is a law; the supreme law of the Nation. It itself tells us in its Article VI, in its so-called Supremacy Clause, that “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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” So the Constitution is the supreme Law of the Land. This means that nothing can stand against it. All laws must be according to its terms and conditions, or are otherwise unconstitutional, unenforceable, null and void. Contrary to the Declaration of Independence, which aside from declaring independence only has a suggestive value, the Constitution is mandatory on all things and all persons within the jurisdiction of the United States.
Now that we have a clear understanding of the legal status of the Constitution, we will explore how it embodies or specifies in more detail with the force of law the natural unalienable rights upon which the Declaration of Independence was based. We will do this in multiple blogs, beginning with the next one in this series.
In this series about the Constitution, we will explore the natural unalienable rights mentioned in the body of the Constitution, keeping in mind the rights to Life, Liberty, and the pursuit of Happiness mentioned in the Declaration of Independence.
The Constitution has a Preamble, and therein we find the first correlation to the rights mentioned in the Declaration of Independence. The Preamble says: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, 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.” A more perfect Union, Justice, Tranquility, Defense, Welfare and Liberty are all concepts that go together with the rights to Life, Liberty, and the pursuit of Happiness to which the Declaration of Independence referred as natural unalienable rights. Further, the opening expression of “we the people” is a reaffirmation that it is the people, and not a king, who are the sovereign who “ordain and establish this Constitution.”
The enumeration in the Preamble is significant because it shows that the natural unalienable rights extend to practical necessary matters, and not only refer to general concepts. Forming a more prefect Union is a very practical political action, but is also a natural unalienable right of human beings when joining with one another to pursue common goals. Establishing Justice is a practical legal matter, but is also a natural unalienable right of human beings in pursuit of their happiness. Insuring domestic tranquility may seem a very practical and necessary matter that every government should pursue, but is also a natural unalienable right of human beings in pursuit of a happy life. Providing for the common Defense would also appear as a practical necessary function of every government, but is also a natural unalienable right of human beings in order to protect their lives and liberties. Promoting the general Welfare would appear to be an obvious function of a government, but is also a natural unalienable right of human beings who want to pursue a life of Liberty and Happiness. And, finally, securing “the Blessings of Liberty to ourselves and our Posterity” is a direct correlation to the Liberty proclaimed in the Declaration of Independence.
So we have it that from the onset, the Constitution introduces itself by reaffirming the key concepts upon which the Declaration of Independence rested, to wit: That the power resides in the people and that the people have natural unalienable rights in pursuit of which these documents are created. In the next articles in this series we will go over more specifics contained in the Constitution.
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