An Experienced Federal Defense Attorney
Ready to Fight For Your Rights

Constitution Day

Today September 17 is Constitution Day. On this date in 1787 the current Constitution was signed and sent for ratification by the states. Most people have little knowledge or understanding of the Constitution, mainly because most of the rights which people reference are not in the Constitution but rather are in the Amendments. Most people have heard or were required to learn the Preamble to the Constitution which reads:

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.

Contrary to much popular opinion, demagoguing politicians and pundits we do NOT have a democracy. The Founders by design insured that we did not have a democracy and the word does not appear anywhere in the Constitution. Indeed, the Founders feared the concept of a democracy because it was too chaotic and unstable as a form of government.

So what did the Constitution "ordain and establish"? Primarily, it established the three branches of government which has endured to the present.

The first branch of government is the Legislative. This branch was designed somewhat on the model of the English House of Commons and House of Lords. Hence, we get Representatives and the Senators. Originally, senators were not elected by popular vote, they were appointed by state governors and were a check on the popularly elected Representatives initiatives.

The second branch of government is the Executive. This branch was originally probably the weakest of the three. It was there to execute the will of the Legislative with the tempering of the Judicial. The concept of the "Imperial Presidency" which came of age in the early 20th Century was not envisioned by the founders. The idea of "Executive Orders" circumventing Congress to create a form of law is not contained in Art. II, Sec. 2 of the Constitution.

The third branch of government is the Judicial. The Judicial is probably the least understood branch of the three. First, the Constitution only establishes one court which is specifically named the Supreme Court. The other federal courts (district and appellate) are created by acts of Congress. The phrase, "I'll take this to the Supreme Court" is often a vainglorious statement. The probability of having a case heard by the Supreme Court is extraordinarily small. First, the Constitution itself limits the jurisdiction of the Supreme Court to a select few issues which it must hear. Next the method of getting to the Supreme Court for most cases is a discretionary review request, legally nominated Petition for a Writ of Certiorari. At last review, less than 3% of such Petitions were granted. Those few which are granted usually fall into matters of weighty Constitutional importance or where two or more appellate (Circuit) courts are in conflict over a significant interpretation of law.

Article IV addresses the states and "Full faith and Credit" of the acts of one state being valid in the other states. This Article addresses the admission process for new states. Importantly the Article requires the state government mirror the form of government of the federal and states, "The United States shall guarantee to every state in this union a republican form of government..." This is important because it refutes the democracy form of government most often claimed as noted above.

Article V addresses the amendment process for the Constitution.

Article VI sets the pre-eminence of the Constitution and states in paragraph two: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Article VII sets the ratification at nine states for adoption.

Finally, it is worth noting who signed this document. Because he is often called the Father of the Constitution, I must list first the name of James Madison. Other signers included George Washington, Benjamin Franklin, Alexander Hamilton, James Wilson, Roger Sherman and J. Rutledge. Several of these gentlemen also signed the Declaration of Independence.

Our Constitution is unique in the annals of human history. It is the great experiment which is still going on. While some argue over standing or kneeling for the flag, that is a side show. For it is the principles embodied in this Constitution which are ultimately the more important reverence. My undergraduate program focused on Soviet Studies. The Soviet Constitution was far better in terms of its declarations than our own. But they were only words and the Red Banner with the Hammer and Sickle did not embody the principles that our Constitution memorialized. Flags come and go (the U.S. flag has changed many times over the last 240 some years) We as a people must insure the efficacy of the Constitutional principles which our flag represents for all people or it is no better than the Red Banner.

This is not my Constitution or your Constitution, but white, black, Asian, Hispanic, Hindu, Muslim, Catholic, Protestant, Jewish or Atheist, whether liberal, conservative or middle of the road, it is our Constitution. Read it, embrace its ideals and as I took an oath to do some 50 years ago as a citizen protect and defend it from all enemies foreign and domestic, you can also. We can all do that by simply knowing what it says and correcting those who misquote and abuse it for their own political ends.