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December 23, 1776

THESE are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not be highly rated. Britain, with an army to enforce her tyranny, has declared that she has a right (not only to TAX) but “to BIND us in ALL CASES WHATSOEVER” and if being bound in that manner, is not slavery, then is there not such a thing as slavery upon earth. Even the expression is impious; for so unlimited a power can belong only to God.

Whether the independence of the continent was declared too soon, or delayed too long, I will not now enter into as an argument; my own simple opinion is, that had it been eight months earlier, it would have been much better. We did not make a proper use of last winter, neither could we, while we were in a dependent state. However, the fault, if it were one, was all our own [NOTE]; we have none to blame but ourselves. But no great deal is lost yet. All that Howe has been doing for this month past, is rather a ravage than a conquest, which the spirit of the Jerseys, a year ago, would have quickly repulsed, and which time and a little resolution will soon recover.

I have as little superstition in me as any man living, but my secret opinion has ever been, and still is, that God Almighty will not give up a people to military destruction, or leave them unsupportedly to perish, who have so earnestly and so repeatedly sought to avoid the calamities of war, by every decent method which wisdom could invent. Neither have I so much of the infidel in me, as to suppose that He has relinquished the government of the world, and given us up to the care of devils; and as I do not, I cannot see on what grounds the king of Britain can look up to heaven for help against us: a common murderer, a highwayman, or a house-breaker, has as good a pretence as he.

The British have an unwritten constitution. The colonies were part of the British Empire, and for the most part, they were populated by British subjects. Why did they depart from the English tradition of an unwritten constitution? The most obvious reason is that the English Constitution and common law evolved, while our forefathers were starting fresh with a blank slate. As Thomas Paine said in Common Sense, “We have it in our power to begin the world over again. A situation similar to the present, hath not happened since the days of Noah.”

Our national heritage is a written constitution that sets the rules for governance between the people and their elected representatives. If youâ€re given a fresh start to design a social contract based on reason, where the people hold political power, then you need to lay out the proposed constitution in writing so everyone can study, debate, and approve it.

When Pilgrims landed at Plymouth, they almost immediately sat down and wrote a constitution called the Mayflower Compact. When our forefathers wanted independence, they felt a need to express their grievances and philosophy of government in a written Declaration of Independence.  At the time of the Constitutional Convention, not only did all thirteen states have a written constitution, but most states had formal declarations of rights. Only through the written word can people exert their authority. They can argue over the composition, hash out differences, distribute it for comment and approval, and then constantly refer back to it.

The United States Constitution didnâ€t spring forth from some committee for delegates to vote on without reading it. They read it over and over again and debated every word. Our Founders were serious men, with a serious purpose. During the convention, there were three iterations of the constitution, each one highly scrutinized. As a result, there were many changes and refinements between versions. Finally, the Committee of Style polished the text until it shined. After they got their work the way they wanted, they sent it out to the nation to be analyzed, debated, and ratified.

Our Founders wouldnâ€t have spent so much time on the wording if they intended the Constitution be open to interpretation by whoever happened to be in office or on the court. They wanted it written down because words have meaning and they chose their words carefully.

Some say that a document over two hundred years old cannot provide guidance in a diverse world of speedy travel, instant communication, deadly weapons, skewed wealth, and other modernity. This is a huge misconception. A misconception propagated by those who donâ€t want to be hemmed in by engineered constraints on the exercise of power. Think about it. Our Constitution isnâ€t a list of laws that can become obsolete. The United States Constitution defines the relationship of governmental powers to make, execute, and adjudicate laws. The system doesnâ€t need to change because laws respond to modern needs.

The Founders wanted to bequeath to posterity a straightforward government that inhibited the abuse of power. Their written words remain clear. Itâ€s the politicians who have skewed their meaning to do whatever they want. Most of the mischief can be attributed to three clauses.

• The necessary and proper clause,
• The commerce clause,
• And promote the general welfare.

The Founders never meant for these clauses to license unbridled national authority. Necessary and proper is clearly restricted to the enumerated powers. To regulate commerce meant the regulation of trade, not all economic activity. And the preamble does not bestow powers.

Before Independence, Thomas Paine encouraged colonists to abandon the unanchored English system and moor a fresh beginning with a written social contract. “As parents, we can have no joy knowing that this government is not sufficiently lasting to ensure any thing which we may bequeath to posterity. And by any plain method of argument, as we are running the next generation into debt, we ought to do the work of it, otherwise we use them meanly and pitifully.”

They did the work of it.  Are we not obliged to do the same for our children?

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed — Declaration of Independence

In 1776, the world was ruled by royalty.  Then some upstart colonialists penned the most revolutionary document in the history of man.  The Declaration of Independence flipped the world upside down. The Divine Right of Kings became the consent of the governed.  The individual was now endowed by their Creator with certain unalienable Rights.  This was a world-shattering concept. It defined both the limits and legitimate ends of government.

Like most revolutionary visions, this one didnâ€t just suddenly spring onto the world stage.  Ironically, the philosophical basis for self-governance came from subjects of the British Crown.  John Locke, David Hume, Adam Smith, and Thomas Paine were among many who maintained that this new way of life was ordained by the laws of nature and of nature’s God.

The Founders were steeped in this incendiary idea.  They believed that all political power emanates from the people.  This concept provides the rational for the Declaration of Independence which declared it is the right of the people to institute a new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

The Constitutional Convention of 1787 instituted a new government and laid the foundation and organizing powers.  It is not a small matter that our United States Constitution starts with We the People in out-sized letters.  The entire document is the peopleâ€s document—a contract that delegates authority from the people to government.  As is often stated in modern contracts, it was meant to be the sole agreement between the parties, and changed only by the process defined within the document.

The Constitution reads We the People … do ordain and establish this Constitution for the United States of America.  Can ink on a page accomplish that feat?  No.  Congress instructed the convention to recommend changes to the Articles of Confederation.  These were to be returned to Congress for approval and then submitted to the state legislatures for concurrence.  That is not what happened. Mere amendments to prop up the flawed Articles of Confederation would not do the job. The Convention instead proposed an entirely new government. James Madison had little difficulty convincing the delegates that to legitimatize their work, they needed to bypass Congress and the state legislatures and go directly to the people.  In a separate cover letter that accompanied the Constitution, the delegates directed Congress to submit the proposed Constitution to conventions of the people for ratification—without review or delay.  The Ratification Conventions and the surrounding debates that raged throughout the nation are what make the United Sates Constitution a binding contract between the people and their government.

Today, some people think the Constitution made the government the boss.  Others think it depends on the circumstances, time frame, safety issues, or the greater good.  The Founders were never confused. Governments derive their just powers from the consent of the governed. Period.  Exercising authority outside the bounds of the Constitution is not just powers.

This doesnâ€t mean that people can choose when to obey the government.  After all, President George Washington sent an army to quell the Whiskey Rebellion.  Congress had imposed an unpopular tax on whiskey, and Washington believed this enforcement action was his duty because duly elected representatives had passed a law consistent with the enumerated powers in the Constitution.

The governmentâ€s authority comes solely from the Constitution—which is a social contract between the people and their government.  This contract can be amended, but only by one party—the people. In fact, it has been amended twenty-seven times—twelve in the last century.  Government of the people, by the people, for the people mandates that changes be approved by the ratification process defined in the Constitution.

People in government take an oath to preserve, protect and defend the Constitution of the United States. This means they cannot ignore the Constitution, nor can they exercise authority beyond the enumerated powers.  They are also obligated to call out others who violate the Constitution.

Recent experience shows that this is not the common understanding in Washington D.C.  If some remain confused, perhaps words from the Father of our Country can help clarify what the Founders intended.

If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation. — George Washington

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention.

1. Rights come from God, not government

This Founding Principle is actually embedded in our Declaration of Independence: “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.”

The Founders didnâ€t believe governments bestowed rights, nor were they an agent to protect rights—governments were the ones that abridged rights.

2. All political power emanates from the people

The Founders were strongly influenced by John Locke, who advocated government as a social contract. The term, will of the governed, encapsulates this concept, which means the people are boss. The power of the people is declared in the first three words of the Constitution, “We the people …” This principle is also the underlying basis for our Declaration of Independence, “governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”

This principle dictated that conventions of the people were the only authorizing force to ratify the Constitution. Neither Congress nor the state legislatures had the power.

Delegate William Paterson, author of the New Jersey Plan, wrote, “What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental law are established.”

3. Limited representative republic

The Founders believed in limited government in the form of a representative republic. They distrusted a direct democracy, because they equated it to mob rule. James Madison constantly preached against any system that allowed special interests (factions) to gain control of the government. He showed that throughout history, majority factions tyrannized minorities, whether the minorities be based on race, wealth, religion, or even geography.

The Founders believed that to protect against government oppression, they must disperse power, and give each branch of government formidable checks on the authority of every other branch. By the end of the Constitutional Convention, the Founders also came to firmly believe that the states must act as a solid check on the national government. Last, monarchies had general power, so they would give the national government only delineated powers.

4. Written Constitution

If government is a social contract, and it has only limited power formally delegated by the people, then the contract—Constitution—must be in writing. The strongest proponent of a written constitution was Thomas Paine, who said, “[A]n unwritten constitution is not a constitution at all.” This may seem commonplace today, but England, the most powerful nation on earth, had no written constitution. This was different in America, however, where all thirteen states had a written constitution. This American tradition goes back to the Mayflower Compact. Our national heritage is a written constitution that sets the rules for governance between the people and their elected representatives. The Founders intent was that this contract would only be changed through the amendment process.

5. Private Property Rights

The Founders were influenced by Adam Smith, and were firm believers in private property rights. In their minds, private property rights were intertwined with liberty. True liberty would never allow the government to come at any time and take a personâ€s property. That would be Divine Right, which they had fought eight bloody years to escape.

James Madison said, “As a man is said to have a right to his property, he may be equally said to have a property in his rights.” He meant that even if a person owned nothing else, he still owned his rights, which were the most valuable property of all.

The Constitutional Convention delegates didnâ€t agree on everything. In fact, they possibly only agreed on these Founding Principles. After all, they did argue for four months about the design of the government.

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention.

Then they came near, and spoke before the king concerning the king’s decree; Have you not signed a decree, that every man that shall ask a petition of any God or man within thirty days, save of you, O king, shall be cast into the den of lions? The king answered and said, The thing is true, according to the law of the Medes and Persians, which alters not. Daniel 6:12

Thomas Paine took this a step further than the Medes and the Persians.  In Paine’s view, not only was the king subject to the law, the law was king.

… in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other. Thomas Paine in Common Sense

The Founders were students of history and they understood that when those who hold power use the law to further their own designs, the rule of law is fatally undermined and the peoples†protection against tyranny is compromised.   John Adams echoed the thinking of John Locke and Montesquieu when he stipulated in the Massachusetts Constitution, article XXX that it was to be a “government of laws and not of men.”

The Founders also emphasized the importance of the franchise as a bulwark against an overreaching government.

The elective franchise, if guarded as the ark of our safety, will peaceably dissipate all combinations to subvert a Constitution, dictated by the wisdom, and resting on the will of the people. The Writings of Thomas Jefferson, Albert Bergh, ed. (Washington: Thomas Jefferson Memorial Association, 1903), Vol. 10, p. 235.]

The reader can determine if the following examples demonstrate respect for the sanctity of the ballot or equal administration of the law.

The Obama Justice Department is not enforcing a 1993 “Motor Voter” law that requires states to purge their voter rolls of dead people, people who moved away, and felons.  According to J. Christian Adams, an election lawyer who served in the Voting Rights Section at the U.S. Department of Justice, this has been mandated by political appointees at the top.

We have no interest in enforcing this provision of the law. It has nothing to do with increasing turnout, and we are just not going to do it. Julie Fernandes Deputy Assistant Attorney General Nov 2009 address to the entire Voting Section of DOJ.

Under the provisions of the law, welfare and motor vehicle offices became voter registration centers. However, the law also requires states to conduct list maintenance to clear ineligible names from voting rolls. At last count, 16 states are in violation.*

The DOJ has been slow, if not entirely negligent in its enforcement of the Military and Overseas Voter Act which requires states to send ballots to military personnel at least 45 days prior to an election to ensure the votes arrive before Election Day deadlines. A 2009 Pew Center report found more than a third of states do not provide military voters stationed abroad enough time to vote or are at high risk of not providing enough time.

The Justice Department also refuses to prosecute the New Black Panther Party for voter intimidation in Philadelphia on Election Day, 2008.  The incident was caught on tape and widely broadcast.  Another political appointee, Assistant Attorney General Thomas Perez testified before Congress that the case against the night stick wielding Black Panthers was dropped because it was not supported by the facts.

Self-proclaimed “sanctuary cities” are in direct contravention to Federal immigration law, yet there are no lawsuits by the DOJ challenging the legality of these provisions.

So what has the Justice Department decided to focus on?  (Disclosure:  the writers of this article are proud citizens of Arizona.)

Most recently, it is investigating Arizona for allegedly discriminating against teachers who donâ€t speak English well enough to teach it. The Arizona Department of Education has been monitoring the English fluency of teachers who instruct English learners. The Department has instructed districts to fire teachers who are not English proficient.

The OJD has taken Arizona to court over SB 1070, Arizonaâ€s anti-illegal-immigration law. The case is well enough known to require no elaboration here.

The Justice Department also filed a civil lawsuit against Arizonaâ€s Sheriff Joe Arpaio accusing him and his agency of stonewalling a probe into policing practices that allegedly discriminate against Hispanics. Arpaio has carried out sweeps to detain illegal immigrants and turn them over to federal law enforcement for deportation.

The DOJ’s to-do list also includes a lawsuit against Maricopa Community Colleges for requiring legal noncitizens to provide their green cards before hiring. The government is asking a judge to order the Colleges to pay a civil penalty of $1,100 for each of the 247 non-U.S.-citizen job applicants it says were required to produce the additional documents.

Yet another federal suit against Arizona may be in the wings, judging from a letter to the Arizona Department of Education from federal civil rights officials. The letter says that Arizona is in violation of federal law for misclassifying English Language Learners as proficient.

This may not be a complete account of the Justice Department’s hyperactivity concerning Arizona. The list grows almost daily.

What is needed for the survival of limited government is a renewal of both of the forces described by Madison as controls on government:dependence on the people, in the form of an informed citizenry jealous of its rights and ever vigilant against unconstitutional or otherwise unwarranted exercises of power, and officeholders who take seriously their oaths of office and accept the responsibilities they entail. Cato Institute “Handbook for Congress.

If limited government is to survive, Lady Justice must don her blindfold again and enforce the law impartially, regardless of which administration is in power.

^1. Wikipedia Article on Lady Justice.

*One way for informed citizens to “demonstrate their vigilance” is to use the provision of the Motor Voter law that allows private citizens to file suit when poll lists are not properly maintained. See Doing The DOJ’s Job For Them

Glenn Beck’s Common Sense avoids the descent into mere diatribe.  What’s more it actually does compare favorably with Thomas Paine’s pamphlet of the same name.   However, Beck is explicit in calling out that he is not advocating for people to take up arms and revolt in the same way that the patriots of 1776 did.  He is calling for people to get up and be heard before it’s too late.

Beck puts America’s situation into sharp relief as he enumerates many of the problems facing the United States.

“The laws of common sense don’t change according to scale.  If it doesn’t work in your own checkbook, it won’t work in theirs.”

“You can’t take away freedom to protect it, you cannot destroy the free market to save it, and you cannot uphold freedom of speech by silencing those with whom you disagree.  To take rights was to defend them or to spend your way out of debt defies common sense.”

Beck makes a lot of points like these throughout the book.  However, it is not mere rhetoric.  He also gives many extremely poignant examples of government’s hubris and the “do as I say, not as I do” attitude so prevalent in Washington.

For instance, Beck reminds us of the House banking fiasco, where members of the House of Representatives bounced 8,331 checks on the House Bank!    When called to account for their fiscal irresponsibility, they promised that they’d clean up their act and followed up by bouncing another 4,325 checks.

Beck posits that today’s politicians are nothing other than parasites feeding off the sweat and blood of the citizenry.

He’s got a point.

Common Sense is a worthwhile read in the literary tradition of Thomas Paine.  While his prose is not of the same caliber, the book is  enjoyable and interesting.   It’s pretty hard to argue with what he has to say.

There are equal parts righteous indignation, clear analysis, and passionate calls for action.  Throughout, there is a tone of optimism and expectation.  At the end of the book he lays out what he calls the “9-12” project.  (The day after September 11th.)  It is not an action plan, but simply boils down into 9 principles and 12 core values.

Fittingly, Beck’s book includes the text of the Paine’s original Common Sense as an appendix.  It is very interesting to read both and compare.

“… Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer or are exposed to the same miseries by a Government, which we might expect in a country without a Government, our calamity is heightened by reflecting that we furnish the means by which we suffer.”  Thomas Paine from Common Sense

A recent WSJ article details how Lindsay Graham and Charles Schumer are out to help us by sponsoring a bill to “tamper proof” biometric national identity cards, ostensibly to help prevent illegal immigrants from  getting hired in the US.  We can expect that this new tool will be used just as assiduously to fight illegal immigration as any other employed in this struggle.  We should all have to carry our documents with us wherever we go, right?   And, there’s the useful ability to track movement by means of these chips too.  Cool!

Gee, why would we stop there?  We have had the technology for RFID chips under the skin, for a long time.  What a perfect match: health data, credit data, identification, all in a little chip.  It could even save lives!   This technology is already in use for Alzheimer’s patients.  How very convenient for all kinds of things.

“If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.  In framing a government which is to be administered by men over men, the great difficulty lies in this:  you must first enable the government to control the governed; and in the next place oblige it to control itself.”  James Madison from Federalist 51.

Well, it looks like congress is working real hard to “enable the government to control the governed”, anyway.  Madison goes on to suggest that the “people” must be the primary control of the government, but that prudence dictates that “auxiliary” precautions should also be taken.  This was the reasoning behind the separation of powers and ultimately the Bill of Rights.

While Messrs. Graham and Schumer might not have horns and tails, they certainly don’t have wings and halos, either.  National ID card?  No thanks.

I just finished reading Paine’s Common Sense, and after witnessing some of the debate at the round table at Blair House and listening to the talking heads go on about utilizing the “reconciliation” process to force the passage of this bill, something that Paine wrote in the context of  his opposition to patching things up with Great Britain, seemed too good to pass up.  As it turns out, his words could be re-purposed in an entirely different context.  Since Paine wrote much better than I ever will, I’ll quote him, albeit out of context:

Though I would carefully avoid giving unnecessary offense, yet I am inclined to believe, that all those who espouse the doctrine of reconciliation, may be included within the following descriptions. Interested men, who are not to be trusted; weak men, who CANNOT see; prejudiced men, who WILL NOT see; and a certain set of moderate men, who think better of the European world than it deserves; and this last class, by an ill-judged deliberation, will be the cause of more calamities to this continent, than all the other three.

I’ve been stumbling across a lot of quotes like this that could be used in today’s world, both from Paine and others. Here is another from Common Sense that our current president would do well to consider:

Of more worth is one honest man to society and in the sight of God, than all the crowned ruffians that ever lived.