Our Constitution: History’s Guide to Free Government

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Subtitle: Continuing the March of Folly.

The eight Obama years felt something like a sequel to Barbara Tuchman’s The March of Folly. Didn’t you scream inside every time he usurped or ignored the law and congress did nothing about it? His election and reelection lent credence to the sorry fact that nations often disregard the lessons of history.

This wasn’t so with our Framing generation. From history’s offerings they embraced the good and shunned the bad. By a large measure our Constitution is a compilation of dos and don’ts, of lessons learned from England’s Stuart Age (1603-1714).

Without a written constitution, the pre-1689 English system was one of competing forces in which the threat of arrest, imprisonment, and war were never very distant. The 17th century Stuart kings pushed until they met an equal and opposing force. The American system was designed to set the envelopes of power and duty of its branches of government to avoid extreme executive v. legislative turmoil that could only be settled in civil war.

By the time William Penn founded Philadelphia in 1682, Great Britain had endured several decades of civil strife and religious wars. One king lost his head, and from 1649 to 1660, Oliver Cromwell led what supporters called a commonwealth and opponents called a military dictatorship. Throw in the occasional plague, alternating religious repression/toleration, and a 1660 fire that burned down most of London, the English people were ready by the 1680s for the return of peace and stability. Unfortunately, before stability arrived, another revolution was in store to counter the absolutist tendencies of King Charles II (1660-1685) and his successor and brother, King James II (1685-1688). Decades later, as King George III ignored the legal limits on his prerogative powers imposed by the English Bill of Rights (1689), and tightened the screws of tyranny in North America, his colonists wondered, could they avoid misery like that of their 17th century ancestors?

Our Framers thought so. In the very first Federalist Paper, Alexander Hamilton rhetorically asked if civil “societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force?” Per the Preamble to our Constitution, the goal of society was to establish good government, and the lessons of history are evident in many subsequent clauses beginning immediately with Article I § 1, which established a congress of the people and states as society’s lawmaking body.

Lawmaking. Thanks to George Washington’s refusal to lead a military dictatorship after the Revolution, America avoided the lure of despotic government. With a wise Constitution, America skipped the experience of England’s first six-hundred years, in which a long line of kings only begrudgingly relinquished lawmaking and prerogative powers to Parliament. Where Great Britain did not establish Parliament as the lawmaking body of the realm until 1689, American civil society vested limited lawmaking authority in a congress of the people and states only twelve years after its Revolution.

Judiciary. English judges worked for the king. The king appointed them and salaried them from his funds. In high profile cases such a those involving embezzlement of public money or treason, the accused didn’t have a chance at acquittal. In the king’s colonies, this abuse extended into the 1770s; the ninth indictment in our Declaration of Independence charged George III with judicial abuse through his control of judges. Our Constitution prudently disconnected sitting judges from executive influence.

Treason. To convict a man of treason, Stuart-era law required testimony from two witnesses to the crime. However, what constituted treason was up to the king’s judges, and in the capital trial of Algernon Sidney, royal prosecutors entered one of his private manuscripts as the second witness to his treason. Our Framers kept the two witnesses and precisely defined treasonous acts in Article III § 3.

Freedom of Worship. After the oddity of Cromwell’s Commonwealth, the Clarendon Code of 1661 re-established the supremacy of the Anglican Church and ended toleration for dissenting religions. Every member of parliament on down to the lowest magistrate swore his faith in the Church of England. The Stuarts’ established church was to the monarchy as today’s msm is to the democrat party. Through the pulpit, government-sponsored ministers reinforced the divine right of kings to rule. Dissenters in the shunned sects naturally gathered together in opposition. Soon, the term “Whig” denoted these various dissenting groups and “Tory” for the king’s supporters and the Anglican Church. Catholicism was associated with authoritarian rule and serfdom; it was completely proscribed. An Englishman need only look across the channel to find miserable people under the Catholic heel of French kings.

In 1787, while the several states treated the multitude of religious sects in different ways, the Framers kept the government of their new plan out of the business of an established church.

Standing Armies. An 18th century standing army was a dangerous threat to liberty. Our Framers had before them the precedents of Rome and England. Julius Caesar marched his provincial army into Rome and overthrew the republic. Cromwell used the army to abolish Parliament. George III fomented revolution when he forced Bostonians to quarter and support his troops, which the colonists saw as nothing more than an army of occupation. Under British practice, the king was not only the commander in chief; it was he who raised the armed forces. The Framers refused to lodge the power of raising an army with the executive.

Despite the often poor performance of state militia during the revolutionary war, state militias under the Constitution continued their role as the nation’s first line of military defense. When necessary, only congress could raise national armies, and through the power of appropriations could likewise immediately disband them.

Habeas Corpus. Stuart kings occasionally imprisoned irritating political opponents. Not until trial, and without defense counsel, did the accused know the nature of the charges against him. Per the Constitution’s Article I § 9, a public emergency is the sole rationale for suspending habeas corpus.

Freedom of Speech. Such was the precarious nature of Parliament before 1689 that its members risked imprisonment for speaking out against the king. Not until the ascension of the non-Stuart king, William III, did Parliament assert and keep the right of members to unhindered freedom of speech.

Freedom of the Press. Building disgust with press censorship by the Anglican church led Parliament to let the Licensing Act expire in 1695. The political press exploded with new opinion journalism both in England and in her North American Colonies. In the following decades colonial Royal Governors were helpless against a rising tide of criticism in the press, which educated Americans on the nature of rights and tyranny.

A Bill of Rights. Despite the inverted nature between nations with sovereignty in a king, and sovereignty in the people, the Anti-Federalists of 1788 took their cue from the Glorious Revolution of 1688 and demanded a Bill of Rights.

Enforce the Law. The English Bill of Rights‘ first formal accusation of James II charged him with “assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament.” The Framers’ Article VI established the Constitution and its subsequent laws as the supreme law of the land.

Where the English went forward in the late 17th century to lawmaking by the whole of English society, America, beginning in 1913, slowly regressed to a pre-constitutional condition in which rogue executive and judicial branches formulate the law. Like Stuart kings, Obama regarded the nation’s lawmaking bodies less as deliberative institutions, but rather as rubber-stamps to his will. When lawmaking depends on the caprice of one man, can it be said America remains a republic, a nation of laws? Considering how close Hillary Clinton came to the Oval Office, and notwithstanding President Trump, and since there are no safeguards to prevent the repeat of an Obama, America is far closer to an elective despotism than a free republic. As for our corrupt courts, can it be similarly said that America is a nation of laws when any one of over 600 federal district court judges can stop the President from doing his Constitutional and statutory duty to prevent the entry of dangerous foreigners?

This squib is long enough, so I will stop here and perhaps pick up further in my next squib with the “Guide to Free Government,” our beloved Constitution.