AMERICA'S CHOICE: A LIMITED GOVERNMENT OR A TOTALITARIAN GOVERNMENT
by Robert C. Cannada Senior Counsel Butler, Snow, O'Mara, Stevens & Cannada, PLLC Jackson, Mississippi
At its September 1996 meeting the Board of Directors of the National Lawyers Association adopted the following resolution:
National Lawyers Association is a full service organization of attorneys from every state in the Union committed to the concept that the Founding Fathers of the government of our Nation established a government based upon the truths and principles set forth in the Declaration of Independence; that all officeholders, including judges, in the performance of their official duties, are to interpret the Constitution in the light of those truths and principles; and that among those truths and principles is the principle that all humans are created equal and are endowed by their Creator with certain unalienable Rights, including the right to Life, Liberty and the pursuit of Happiness.
This resolution is obviously based upon the following assumptions: (1) there is a legal connection or relationship between the Declaration and the Constitution; and (2) all officeholders, by their oath or affirmation, are obligated to recognize and honor that connection or relationship in the performance of their official duties.
Article VI of the Constitution contains the following provision: "the Senators and Representatives before mentioned and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States shall be bound by Oath or Affirmation. to support this Constitution:...." Accordingly, there is no question but that this constitutional provision applies to all officeholders, local, state and federal, including "all executive and judicial Officers."
The question to be answered, therefore, is what is meant by the term "to support this Constitution.'' If the Constitution is a freestanding document, then the oath or affirmation of the officeholder is limited to the language of that document. On the other hand, if there is a legal connection or relationship between the Constitution and the Declaration of Independence then the oath or affirmation commits the officeholders to recognize and honor both documents in the exercise of their official duties to the extent of such connection or relationship.
The importance of this question was emphasized by former President Jimmy Carter in a recent television interview. In response to a question President Carter replied that as President he had enforced the Constitution as interpreted by the Supreme Court. There was no intimation of any limitations on the power of the Supreme Court or that the Supreme Court was obligated to recognize any guidelines or limitations on its powers.
The National Lawyers Association takes the position that there is a legal connection or relationship between the Declaration and the Constitution based, in part, on the following:
A. Our Founding Fathers intended for the Declaration to be the
foundation for the Government that was being established.
The "first draft" of the Declaration was basically prepared by Thomas Jefferson and submitted to a Congressional Committee of Five. The Committee ultimately agreed on a new draft and on Friday, June 28,1776 reported this draft to Congress. Congress immediately laid this draft on the table. Congress was not yet ready to consider this document involving the establishment of the government of the new nation since they had not yet declared the independence of the Colonies from the British Empire. Accordingly, Congress first took up what was designated as the Richard Henry Lee Resolution of Independence. On July 2, 1776 Congress adopted the first paragraph of the Lee Resolution -- the part respecting independence -- thereby officially separating the Colonies from the British Empire.
Having taken the necessary action to separate the Colonies from the British Empire, Congress then began consideration of the draft of the Declaration of Independence that the Committee of Five had reported. After numerous changes, the document was officially approved by Congress on July 4, 1776. Thus. among other things. our founding fathers left as a legacy to America the idea that liberty -- individual unalienable rights -- is a reality for which men will sacrifice their lives. their fortunes and their sacred honor. The foundation of the government of the United States of America had been established. That foundation consisted of the principles set forth in the Declaration. These principles were to be permanent. They were to be unchanging end unchangeable. There was no provision whatsoever for any amendment being made to the Declaration. The Creator endowed unalienable Rights of the individual were to be "secure" -- that was the assigned task of the government that was being instituted. This was specifically set forth in the Declaration as follows:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
The Founding Fathers clearly intended to preserve for the people of the United States the same unalienable rights which the Founding Fathers claimed as the justification for their separating the colonies from the government of Great Britain. They expressed this justification in the Declaration as follows:
But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
The government which they were instituting was to be a "guard" of the God-endowed unalienable rights of each individual in the United States. The government was not to be authorized to destroy those rights. To the contrary, the government was to guard or secure those rights.
Dean Clarence Manion, the Dean of the College of Law at Notre Dame University for more than a quarter of a century, in his book The Key to Peace defined this "government" as follows:
Constitutions and Bills of Right are but vain and futile barricades against tyranny unless, as our Declaration of Independence says-they are firmly founded in and upon the "Laws of Nature and of Nature's God."
Dean Manion, in his book also made the following observation:
In both "form" and "substance" our American system is basically different from any politically organized society now or heretofore existing in the world.
The "rights," namely the unalienable rights of each person in the land, constitute the "substance" of American government. The "device" by which these rights can be secured is the American "form" of government. The conjunction of this "form" and this "substance" was unique and new in Jefferson's time and it is completely unique today.
A Republican form of government strictly and constitutionally dedicated to the protection of the God-given unalienable rights of men appeared in the world for the first time with the organization of the United States of America This "form" was then and there composed and designed to hold and contain its precious substance. (Emphasis added.)
For the first time in the history of the world there was placed in the document establishing a nation the concept that the government being established for the new nation was to be a government with limited powers; a government that had no authority to supersede or contradict the Laws of Nature: a government that was charged with the responsibility of securing the God-endowed unalienable rights of the individual. Yet, and this is extremely important, the document made no reference to any religion. The officeholders in the government were to recognize and honor the principles and truths set forth in the document establishing the government but these truths and principles were to be considered as "self evident" and not part of any religion. The Founding Fathers did not intend to establish a totalitarian government nor did they intend to establish a government into which a religion was intermingled. They intended to establish a government based upon self-evident truths. They accomplished this in the Declaration of Independence. The Declaration had two purposes: (1) give a justification to the world for its previous actions in separating from Great Britain and (2) take the first step in creating a government with limited powers -- establish its unchangeable foundation.
B. The language in the Declaration of Independence itself makes it
clear that it is to be a vital and necessary part of the government.
It is the language in the Declaration that sets forth the assigned purpose of the government -- the government is being instituted to "secure" the unalienable individual rights with which all humans have been endowed by their Creator. In addition, the language in the Declaration provides specifically that wherever any form of government fails to "secure" those unalienable rights then it is the right of the people to alter or to abolish that government. The Declaration then goes on to provide that if the people do decide to alter or to abolish the government and to institute a new government then the new government should consist of (a) a foundation composed of principles and (b) powers in the officeholders which are organized in a way and manner satisfactory to the poeple. In other words, the Declaration not only sets up the foundation for the government being established but it goes further and states that if the government leaves that foundation the people have the right to alter and abolish that government and then sets forth the two steps that the people should take in establishing a new government. Those two steps are to establish a foundation composed of principles and then to organize the powers of the officeholders. There is simply no question but that the Founding Fathers intended that the principles and self-evident truths set forth in the Declaration were to constitute the foundation for the new government. It is the Declaration that sets forth the assigned purpose of the government and prescribes what is to be done if the government fails to serve in accordance with that purpose.
C. The language in the Constitution acknowledges its legal
connection or relationship with the Declaration.
1. The Preamble to the Constitution recites that its purpose is "to form a more perfect union ...." The Declaration had been in effect for 12 years and the Articles of Confederation, which was the first document organizing the powers of the officeholders, had been in effect for 10 of those years. Some changes in the organization of the powers of the officeholders were needed and thus the Constitution was written and adopted to take the place of the Articles of Confederation-to form a "more perfect union."
2. The Constitution which was adopted in 1787 provided that a member of the House of Representatives was required to be a citizen of the United States for at least 7 years and a member of the Senate was required to be a citizen of the United States for at least 9 years. Since the Declaration had established the United States of America as a nation in 1776, candidates for the House and for the Senate who had lived in this nation for the required years could meet this requirement. The Declaration had established the nation so that citizenship could begin any time after the enactment of the Declaration. Had it not been for the Declaration there would have been no nation in which the people could have been citizens so that no one could have qualified for these offices. Interestingly, the Constitution also provided that a person, in order to serve as President, must have been a resident within the United States for at least 14 years. Accordingly, the first President had to have been a resident of the geographic area before the formation of the nation by the Declaration of Independence in 1776 and continue to be a resident of the geographic area until his election as president. Citizenship, as such, for this period of time could not be required since the nation, at the time of the enactment of the Constitution, had not been in existence for 14 years. Clearly, the Declaration is recognized as the document creating the nation in which there could be "citizens."
3. In its final paragraph, the Constitution recognizes that it, the Constitution, is being executed on the 17th Day of September 1787, "And of the Independence of the United States of America, the Twelfth." This reference in the Constitution is obviously to the Declaration of Independence. The Declaration was dated July 4, 1776 and the Constitution was adopted in 1787 -- the twelfth year after the adoption of the Declaration.
D. The Declaration has been referenced by various federal courts in hundreds
of decisions including several decisions by the United States Supreme Court.
E. Legislation by Congress admitting states into the union acknowledges
and confirms that the principles set forth in the Declaration constitute
the foundation of the government of America.
The original thirteen states had been a party to the enactment of the Declaration and the Constitution and thus as to those states there was clearly a legal connection or relationship between those two documents. The statutes admitting states into the Union prior to 1864 provided that they were being admitted with the same rights and subject to the same conditions as the original thirteen states. Beginning in 1864, every state admitted into the Union has been admitted under specific legislation which provides, in essence, that the Constitution of the state "shall be republican, and not repugnant to the Constitution of the United States, and the principles of the Declaration of Independence." This provision, or provisions similar thereto, appear in legislation admitting the states of Alaska, Arizona, Colorado, Hawaii, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Washington, with the states of Alaska and Hawaii being admitted in 1958 and 1959 respectively. In this way the legal connection or relationship between the Declaration and the Constitution has been specifically recognized and honored by Congress within the last 50 years. This would appear to be conclusive as to this question of whether there is a legal connection or relationship between the Declaration and the Constitution.
The above constitutes only a part of the evidence that is available to show that there is a legal connection or relationship between the Declaration and the Constitution.
The National Lawyers Association takes the position that the practical effect of the legal connection or relationship between the Declaration and the Constitution is that the Constitution is to be interpreted in the light of the principles set forth in the Declaration.
A. The United States Code Annotated treats the Declaration as a part of the organic law of the government of the United States of America.
1. The Preface to the United States Code - Annotated states that "this code is the official restatement in convenient form of the general and permanent laws of the United States in force December 7, 1925...." The Preface also states that there is also contained therein a copy of the Declaration of Independence, the Articles of Confederation, the Ordinance of 1787 and the Constitution with Amendments.
In the Explanation page of the Code there is a statement setting forth what makes up the Organic Laws of the government of the United States of America. That statement is as follows:
The complete text of the United States Constitution is set out in this volume. It is preceded by the Declaration of Independence, the Articles of Confederation and the Northwest Ordinance.
Under the title "The Organic Laws of the United States of America" there is included the complete texts of the Declaration of Independence, the articles of Confederacy, the Northwest Ordinance and the Constitution.
Black's Law Dictionary contains the following definition for the term "organic law":
The fundamental law, or constitution, of a state or nation, written or unwritten. That law or system of laws or principles which defines and establishes the organization of its government.
Thus. the official publication of the laws of the United States of America. the United States Code Annotated, defines the connection or relationship between the Declaration and the Constitution to be that they are both part of the "law or system of laws or principles which define and establish the organization of" the government of the United States of America.
2. Justice Douglas of the United States Supreme Court in the case of McGowan v. Maryland, 166 US. 420 (1961), stated:
The institutions of our society are founded on the belief that the" is an authority higher than the authority of the State; that there is a moral law which the State is powerless to alter; that the individual possesses rights, conferred by the Creator, which government must respect. The Declaration of Independence states the now familiar them: "We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."
And the body of the Constitution as well as the Bill of Rights enshrined those principles.
Justice Douglas states that the principles of the Declaration are "enshrined" in the Constitution as well as in the Bill of Rights. This is the legal connection or relationship between the Declaration and the Constitution as viewed by Justice Douglas.
3. The platform of the Republican Party of 1860, upon which Abraham Lincoln was elected President of the United States of America, contains the following resolution:
Resolved that the maintenance of the principles promulgated in the Declaration of Independence and embodied in the Federal Constitution . . . is essential to the preservation of our Republican Institutions.
The Republican Party, as of 1860, and Abraham Lincoln viewed the principles of the Declaration as being "embodied" in the Constitution. This is their view of the legal connection or relationship between the Declaration and the Constitution.
4. Prominent constitutional lawyer William Bentley Ball expressed this legal connection or relationship between the Declaration and the Constitution as follows:
The Declaration is the Preamble to the Preamble to the Constitution.
Other lawyers state that the Declaration constitutes the "letter of intent" for the drafting and signing of the Constitution.
The practical effect of all of these approaches to the legal connection or relationship between the Declaration and the Constitution is that all officeholders are to interpret the Constitution in the light of the principles of the Declaration of Independence -- to function in accordance with the Organic Laws creating and organizing the government.
It is a self-evident truth that the government of any democracy that does not recognize and honor any transcendent truths or principles -- absolutes -- will inevitably turn into a government exercising totalitarian powers. The shadow of a totalitarian government is hanging over Americans today. Failure to act promptly means a government with totalitarian powers for America.
| ABOUT THE AUTHOR
Bob Cannada is Senior Counsel at Butler,
Snows, O'Mara, Stevens & Cannada PLLC
and is a member of NLA's Board of