The Operative Word of the Constitution is No

Guest Commentary
By Russ Schach

The Constitution’s birthday is September 17.

It’s well worth celebrating.  But too few people know; fewer care.

Most Americans already feel they know what the Constitution is about.  They just don’t know what’s in it.

Funny, though, no shortage of opinions about it.  And nobody’s the
least bit shy.

“We the People” indeed.

Everybody understands that the Constitution is what makes America tick, in a practical sense.  Moreover, most people even feel it represents what’s most important about our country and our society.  Simply stated, it’s America’s rule book — or the American Bible, if you will.

We’ve been taught to revere the Constitution, to hold it near and dear to us, but we’ve rarely been taught why.  (“ … in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare …”)

And our teachers have hardly touched on the story of it, and the stories of the men who forged it — and their very serious purpose and principles.
( “ … secure the Blessings of Liberty to ourselves and our Posterity …”

Such meager exposure we’ve had to the very thing we all say is the most important aspect of who we are.

The detailed history and stories of the participants are best told in greater depth in other venues:

Here, we’ll only touch on the bare bones, the simple meaning of what they gave us.

We take the Constitution as a given, and we take for granted our love and respect for it.  OK, so why the apathy and wholesale ignorance?  Why the intellectual cold shoulder?  Why the domestic abuse?

Apparently, the Constitution seems too complicated, too remote, or too tedious.  Is it because anything that smacks of “history” seems boring or irrelevant?  Is it repulsive because it involves the ideas of old, dead, white men, as they say?  Did I mention something about shallow education?)

Or maybe it’s because the Constitution is basically an automobile owner’s manual, not stirring literature that everybody loves — such as those famous few lines of the Declaration of Independence.  Whatever the reasons, the Constitution seems to be the Rodney Dangerfield of American documents.

But the Constitution is really quite simple, and nothing could be more relevant, and downright vital, to you and everyone else — today, and for as long as the United States of America exists.

The Moral Imperative

In a nutshell, the Constitution — perhaps the world’s shortest document of such importance — is the foundation of Americans’ moral sensibilities about good government and the responsible use of political power.  It’s the framework for what the federal government is and what it can do.  Just as importantly, the Constitution explicitly states what Big D.C. is not — what it cannot do.  Plus specific conditions for how the permitted powers are to be used.

The Constitution’s indisputable purpose is:  to set the rules for how the federal government works — and to prevent it from running amok.  This is the Framers’ preventive medicine for big politics.  It’s an ingenious immune system, but it has been strained so often, for so long, by so many, that the ego-cancer is eating it away faster than you can say “Super-size me!”

Very simply, the Constitution is the safeguard for our society, composed to ensure the freedom of every American citizen, to serve and protect all individuals — not build cushy thrones of privilege and power.

Article II – Section 4:
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

So, the Constitution is the Golden Rule of government.  Everything else comes after that.  Whatever those high-falutin’  Feds feel about what they can get into next, or should — whether it’s to serve the public good or because they enjoy power and privilege too much — and however they feel about how we, the American people, should live our daily lives, they must adhere to the most prime and urgent message:  follow the rules.  Then, and only then, comes governing.

That’s called ordered liberty.  And the government gang has its orders.

Isn’t it only fair to ask politicians, their unelected lieutenants (or czars), and their career bureaucrat staffs, to obey the law?  The Constitution demands it.  Repeat:  Demands it!  But do you think they actually do that, with any consistency, or even willingly?

I was under the impression that they took an oath to uphold and protect the Constitution, not squeeze more power out of it like a slice of lemon for their own tall glass of iced tea.  They know what they’re getting into, and they’re supposed to know what they’re doing.

Article VI
“ … shall be bound the Oath or Affirmation …”

(Note: This vow of faithfulness and patriotismapplies to all officers in all three branches of the federal government, elected or not — and even to all members of the state legislatures!)

No excuses.  No exceptions.

This is the true wall of separation: between responsibility and corruption; between lawfulness and licentiousness; between due process and changing the rules like magic.  A wall to separate prudence and arrogance.

Good intentions make no difference.  Misguided overreach and self-indulgence are just lightweight versions of despotism.

If that sounds convoluted or remote, think of it this way:  Nothing will get you worked up faster than what the politicians in Washington, D.C., are yammering about — not to mention what they want to do with your taxes, your health care, your education, your job prospects, your energy use, and your family.  Guess what?  If you don’t know the Constitution, you’ll never figure out what’s really going on and why.

What’s the Good Word?

The Constitution’s prime directive can be summed up in one word: “No.”

No to what?  To unlimited power.

That means federal officials can’t just assume they have the authority to do whatever they want or dictate their wishes, and certainly not expect to get away with it.  Remember those God-given rights we have?  Seems that far too many in government choose to deify themselves instead of deflecting their worldly urges.

Article I Section 9
“No Title of Nobility shall be granted by the United States …”

And however the Feds use the powers entrusted to them, they had better follow the Constitution.  If they don’t, they are out of line.  They’re either making a huge mistake or giving you the shaft.

Aha!  Just like that, the core truth, right up in your face.

The federal government gets the “no” treatment 110 times in the Constitution.

  • The original Constitution: 48 times no.
  • The amendments (all 27 of them): 62 times no.
  • The Bill of Rights (the first 10 amendments): 20 times no.
  • The First Amendment alone: 6 times the prime directive.

That’s a whopping 110 overt prohibitions and limitations.

The same “no” message also is conveyed in other equivalent words, including “shall not,” “in no event,” “only,” and “illegal and void.”

That’s as emphatic and plain a message as could be.  In fact, the Constitution’s painstakingly precise language is itself a hammer of clarity showing that the Framers thought their meaning and intent was very plain, without controversy and above interpretation: The only good government is limited government, with unequivocal directives on what conduct will, and will not, be tolerated.

No unilateral actions.  No elaborate adventures.

Article I – Section 4:
“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”

Article I Section 9:

  • “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
  • “No Bill of Attainder or ex post facto Law shall be passed.”
  • “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law …”

Amendment I:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Amendment II:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Amendment IV:
“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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Amendment IX:
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Amendment X:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people.”

Officers of the federal government should be the very first ones to heed the words of the famous Prime Time philosopher: “Stifle yourself!”  (The signature comment by Archie Bunker, the protagonist of the “All in the Family” TV show.)

If that’s what you call “negative liberties,” give me trainloads.

The Gears of Gov’ism

It’s no accident that there are three branches of the federal government.  The Constitution takes the national government and decentralizes it.

In other words, the American system vetoes the world’s third oldest institution — nationalism (a king as total ruler of a society) — and replaces that with institutional limits, each with distinct identities and purposes.  That’s what is known as federalism: a representative — or republican — form of government whose separate arms check each other’s use of power, not expand it.

Inherent in the Constitution is a system of individuals who are chosen by the people, from among the people, for the benefit of those people — to represent American citizens, no matter where they live in this united brotherhood of states.  The first duty of each representative is to keep one’s own house (or bench or oval office) clean, and to keep government colleagues honest with checks and balances.  To act as servants of the people, not as kings or court jesters.

It’s about leading us, not bleeding us.

Too constricting?  Not at all.  The Constitution doesn’t bar creative solutions to political and social problems.  It just builds a moral and practical fence against self-anointed urges.  No going off on your own; you have to play by the rules.

That’s federalism!

Read more:

No Sure Thing

Creating the Constitution was not the easy task many people think it was.  While it was fairly civil in form, it wasn’t always so friendly.  And it wasn’t a sure thing, not by a long shot.

The Constitution was the solution to a serious problem — lack of cohesive leadership for those newly united but sovereign states.  Things weren’t going well; very badly, in fact.  The Constitution was written to bring about that ordered liberty we talked about earlier.  But after it was penned, the Constitution could very well have been rejected — and thus never existed at all.

The only reason the Constitution was approved in the first place, in 1787, was that a number of skeptical dissenters (the Anti-Federalists) insisted that the Constitution did not provide enough, or strong enough, checks on unrestrained government power.

The Federalists (James Madison, Alexander Hamilton, et al) agreed completely that limits on government were essential — not just as happy hopes and wishes, but absolute requirements — if Americans were to have the individual liberty given to them by God, and for which they fought so desperately between 1775 and 1783.  But the Federalists said everything was fine — Hey, just look at all those “no” entries in this wonderful, new rule book!

Nevertheless, the Federalists were forced to agree to work with their “anti” counterparts (George Mason, Robert Yates, aka “Brutus”, et al) to come up with a list of specific amendments to further entrench the stamp of “no” on the federal government.  Those folks often are characterized as “hard-liners” or “ultraconservatives” or “obstructionists” because they were the stubborn advocates of “states’ rights” and small government.  (See federalism.)

The result of that second constitutional conference was the Bill of Rights, ratified in 1791.  Thus, it was those pesky people — those “right-wingers” who were deadly serious about limiting government — who gave the American people the Bill of Rights, by sticking to their guns and saying no to wild-haired government.  And making sure the “no” message was chiseled in stone.

There was plenty of disagreement regarding ideology and the specific makeup of the Constitution.

See the arguments put forth by the Federalists:

and the Anti-Federalists:

After that work was done, when the political parties got rolling and took primary hold of the public discourse and election campaigns, some arguments were truly nasty, far beyond what we experience today.

But to show the general consensus of conviction among the Founders and the Framers about limiting the powers of the federal government, one can look to one of the most ferociously active partisans of all — Thomas Jefferson.

President Jefferson, in his inaugural address, on March 4, 1801, said:
…But every difference is not a difference of principle.  We have called by different names brethren of the same principle.  We are all Republicans, we are all Federalists. …

By the way, Jefferson had no part in formulating or writing the Constitution, but he certainly understood its purpose and the issues.

What Shall We Do?

Even if many have failed to honor that bipartisan spirit, don’t those federal folks really mean well with all those programs and projects?  Aren’t they doing something to help the children and the poor and the sick and the jobless and the homeless?  Maybe.  But it makes no difference.  The rules are the rules — because we’re talking about good government here, not a compassion factory.  It’s about running the biggest Fort Knox on the planet, not a food bank, a lottery, or a pawn shop.  It’s about diligence and competence and accountability: obeying the law of the land.

But what about those powers the Constitution gives the federal government?  Are those what you call “positive liberties”?

The Constitution is full of the word “shall” — which can mean different things according to the context.  In the Framers’ time, “shall” meant “will” or “must” as in a direct order.  But many phrases using “shall” are grants for specified government activity, others more about specified duties and conduct.

Article I – Section 5
“Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy …”

Article II – Section 2
“The President shall be Commander in Chief of the Army and Navy of the United States …”

All together, “shall” appears 117 times in the main body of the Constitution.

Grand total, with all the amendments: 168.  The Bill of Rights itself has three such entries.

Just to be clear, many of those “shalls” are not statements of permissiveness at all, and they’re certainly not orders to do anything in a vacuum, but rather under stipulated conditions.  Limits.  Boundaries.

So, even when the Constitution gives the federal government any particular power, it is limiting authority and discretion at the same time.

Article I – Section 1
“All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Article I – Section 7
“All Bills for raising Revenue shall originate in the House of Representatives, but the Senate may propose or concur with Amendments as on other Bills.”

Article II – Section 2
“He (the President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur …”

Article II – Section 3
“He (the President)  shall from time to time give the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient …”

Article II – Section 3
“… he (the President) shall take Care that the Laws be faithfully executed …”

Article IV – Section 4
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion …”

The word “may” (as in discretionary powers or actions) appears 18 times in all, with 11 of them in the body of the original document.

Article II – Section 3:
“he (the President) may, on extraordinary Occasions, convene both Houses, or either of them …”

Article IV – Section 3
“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State …”

Thus, a few options for government action do exist in the Constitution.  But given the obvious priority to limit arbitrary and flagrant power, it would be dishonest to claim that they offer license to any action that evades accountability, the law, and Rule No. 1.

But, clearly, the word “no” is the operative word, the main message, and the underlying purpose of government as defined by the Constitution.

For government to be noble, its members must remember the first two letters of the word.

Off the Narrow Path

The “necessary and proper” clause is perhaps the most infamous phrase in the Constitution.

Here it is, appearing near the end of the list of actions given to the legislators:

Article I – Section 8
“(The Congress shall have the power) To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

That seems to bring out the magic genie in members of Congress.

But a strictly honest view of this phrase recognizes its actual intent: to enable Congress to take steps that cut through the legal tangle to see through laws it enacts (fulfill its intentions), and to make clear that legislators and their agents may use all given powers to achieve an efficient outcome instead of a sloppy, confusing, costly mess.  To get the business done.  Period.

That does not allow — cannot, given the overall context of the Constitution — the wholesale creation of new powers and freewheeling actions.  It says “necessary and proper for carrying into Execution the foregoing Powers” — not something like “necessary and proper for taking advantage of power to do whatever you want just because you think it’s a wonderful idea and makes you feel good or gets you lots of goodies”.  Thinking in the latter vein might get you a Section 8 in the military.

You can see where “interpretation” of the Constitution gets sticky right away.  Hence the biggest problem of all — lawyers.  With only the slightest exaggeration, lawyers are all interpretation and manipulation — and no respect.  Take note that many if not most of the members of Congress, all members of the Supreme Court, and some presidents, are lawyers.

There is no greater problem in government than giving lawyers a loophole through which they can create a new playground of power with their inevitable Mobius strip of complexities and obfuscation.  It’s almost like a plague of locusts.

Embracing the No

You know what government officers of all types really need?  A backbone.  Add a little common sense and being serious about their moral values and constitutional oath.  Oh, and remembering what American government is designed to be.

What a refreshing development that would be!  Then you’d have what the Framers were insisting on: public servants who are responsible to others, not just to themselves.  Responsible to you and me.  Also responsible to their vow of lawful integrity — a concept that seems to find its way very quickly into the round file in every office around Constitution Avenue.

That is why the Republican Party is often called “The Party of No” — a nickname reflecting a well-informed, dutiful respect for the Constitution.

The Democratic Party, by its own claim, is the party of “yes” to an entitlement government that finds ever-growing powers for itself.  Democrats are the descendants of the Federalists, who thought there was no need for a Bill of Rights.

In general, Democrats say no to further checks and balances because they are comfortable with power and see their generous motives and programs as what makes government good and people’s lives better.  So they want more of it, and they tend to trust the people in government — trust their motives, their goals, and usually their results — as long as they’re Democrats.

Republicans — conservatives in particular — are more cautious, with a philosophy focused on checking abuses, which they are sure will occur in some manner, simply because of human nature.  Why ask for trouble when you can try to head it off at the pass?

Republicans see limits as necessary for good government — and the smaller (and closer to home) the better.  And the less of it, best of all — so that good people can make their own decisions and live their own good lives, without undue interference from the castles of political power.

So the people can govern themselves to the greatest extent possible.

Lots of people in both parties fail to live up to their values, and to the law, but the Constitution’s message is clearly “no” to undefined, unchecked power.

Sadly, through the years, the Constitution’s driving purpose has been ignored, evaded, overridden, redefined, eviscerated, or nearly annihilated.  By every branch of government.  By every president.  (Yes, even Washington.)  So, what is the public good?  Where’s the respect for the rule of law?  Principles?  How about just a little self-restraint?  How about a commitment from public servants to act the way they said they would?

You see the Framers’ main concern in the Constitution, right?  They all knew the danger of government gone wild was real and constant, and many of them foresaw violations stemming from political ambitions empowered by loopholes dug out of even the most diligently detailed rules.

It’s not really complicated at all.  It’s neither confusing nor remote nor obscure, and certainly not unimportant.  Do you think it’s safe to be uninformed or apathetic?  Think it’s too boring to bother with?  If so, you have some serious problems, foremost among them qualifications for good citizenship.  And you deserve the government and so-called leaders you get.

The message of “no” to government overstepping its bounds (abuse) is Americans’ most precious heritage, the most basic principle from our foundation and for our future.  The Constitution followed in the steps of the American war for independence, engaged by many of the same people who fought in it, and with the same passionate spirit firmly in mind.  That’s as relevant now as ever.

We have the rules for good government in hand.  We should make sure our officeholders follow America’s good book.

First things first.

Further reading:

Russ Schach has been a professional journalist for more than 30 years and received his Bachelors degree in Communications (Journalism) from California State University – Fullerton in 1975.  He is an ardent student of history, especially the American founding era and the Constitution.

Copyright 2012 Russell R. Schach
All rights reserved
This article originally appeared in an abbreviated form in the papers of the San Gabriel Valley News Group (Pasadena Star-News, San Gabriel Valley Tribune, andWhittier Daily News).  The full article also appears on DaBelly.


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