“Constitution”: By definition a charter of defined and therefore limited government
By Tyranny Out of Necessity: The Bastardy of Martial Law, by Dr. Edwin Vieira, Jr., Bookmasters Inc., Ashland, Ohio (2014), page 141.
Also see “General Government” vs “Federal Government” • Misconstrued Role of the Supreme Court as the Ultimate Interpreter of the Constitution • Misconstrued Role of Congress: Acts of Congress Not Necessarily Binding • Misconstrued Role of the President as “Commander in Chief”
- As the Constitution makes pellucid, ‘the Federal Government’ actually consists of five parts.
As the Constitution makes pellucid, “the Federal Government” actually consists of five parts:
1.) Congress—Under Article I, § 1 (“[a]ll legislative Powers herein granted shall be vested in a Congress of the United States”);
2.) the President—under Article II, § 1 (“[t]he executive Power of the United States, shall be vested in a President of the United States of America”);
3.) the judiciary—under Article III, § 1 (“t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress shall from time to time ordain and establish”);
4.) the States—under the Tenth Amendment (“[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”); and
5.) WE THE PEOPLE under the Preamble, the Tenth Amendment, and the Ninth Amendment (“[t]he enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people”). (footnote 1)
1.) See E. Vieira, Jr., How to Dethrone the Imperial Judiciary, San Antonio, Texas: Vision Forum Ministries, 2004, page 55.
United States Constitution and the Federal System: The Power of Government Officials is Divided in Order to Control it.
The Constitution’s purposes are set out in the Preamble. The Constitution’s structure is designed to ensure that public officials employ their powers for those purposes alone. America’s Founders knew that “great difficulty” in politics is that “you must first enable the government to control the governed; and in the next place oblige it to control itself”. (footnote 1) to “oblige [the government, at every level,] to control itself”, they constructed the Constitution around a latticework of “checks and balances”. Two of these standout: namely, separation of powers within the General Government (as well as within the governments of the several States); and the federal system among the General Government, the States, and WE THE PEOPLE.
The Founders knew that “[n]o political truth * * * is stamped with the authority of enlightened patrons of liberty then that * * * [t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny“. (footnote 2) at the level of the General Government (and within the several states as well), a separation of powers is the specific “check and balance” that prevents “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands” within the governmental apparatus.
The federal system is a system of separation of powers, which in its case establishes “checks and balances” that distribute and control the exercise of all political authority and responsibility among America’s three great governmental institutions: namely, the General Government, the several States, and the ultimate sovereigns, WE THE PEOPLE. (footnote 3) The federal system consists of:
(i) the General Government—usually differentiated into three components: Congress, the President, and the Judiciary;
(ii) the several States – usually treated as unitary entities, although their governments as well are composed of separate legislative, executive, and judicial branches; and
(iii) WE THE PEOPLE— in their capacities as the ultimate sovereigns who “ordain[ed] and establish[ed] th[e] Constitution”, (footnote 4) as the defenders and executors of their sovereignty through “the Militia of the several States”, (footnote 5) and as the electors implement that sovereignty through the regular selection of various “representatives”. (footnote 6)
- The federal system divides governmental power in order to control it, in the interest of maintaining the ultimate power of government in WE THE PEOPLE’S own hands.
The federal system divides governmental power in order to control it, in the interest of maintaining the ultimate power of government in WE THE PEOPLE’S own hands. By assigning different powers to different levels of government—and by recognizing all of these levels and powers as subordinate in the final analysis to THE PEOPLE—the federal system prevents each and every level of government from setting itself up as superior and antagonistic to the citizenry as a whole within its particular jurisdiction. As James Madison explained,
[i]f 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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
* * * * *
First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.
Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority — that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing * * * self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. * * * . In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will * * * independent of the society itself. (footnote 1)
1.) The Federalist No. 51.
- The federal system protects society against usurpation and factions (special interests).
The federal system protects society against:
(i) usurpation—namely, public officials arrogating “self-appointed authority” to themselves; and
(ii) faction—namely, public officials wielding abusive powers by dint of which they can “espouse the unjust views of the major * * * party” (or in many cases “the unjust views * * * of the the minor party”, too). (footnote 1)
Federalism demands that Local government be responsive to Local citizens, each State’s government to that State’s citizens, and the General Government to the citizens of the Union as a whole—all in strict compliance with the principles of the Declaration of Independence and the Constitution. If the Local government shirks its responsibility, the State’s government will intervene. If the State’s government defaults on its responsibility, the General Government will intervene. If the General Government neglects its responsibility, the State’s governments (and Local governments subordinate to the States) will intervene. And if all these governments fail, then WE THE PEOPLE themselves will step into the breach as the ultimate guarantors of “the security of a free State”. (footnote 2) 361) in each case, moreover, the federal system provides the political and legal authority necessary and sufficient for such intervention. Were that not so, the arrangement would not be “federal” at all, but instead some kind of rigidly hierarchical scheme in which a governmental apparatus occupying an upper level on an organizational charge controlled each and every apparatus at every lower-level. (Of course, in a special sense a rigidly hierarchical arrangement does obtain even in America’s federal system, because perforce of the Declaration of Independence be authority of WE THE PEOPLE is superior to that of any and every political entity and governmental apparatus they have created, and the authority of “the Laws of Nature and Nature’s God” are superior even to the will of THE PEOPLE.)
Conversely, when the strength of the federal system wanes, because a governmental apparatus which happens to occupy and higher position on an organizational chart asserts its superiority to an apparatus in a lower position in consequence simply of their relative places and not their actual legal authorities, usurpation inevitably waxes—eventually to the point at which the governmental apparatus occupying the highest position on the chart creates “self appointed authority” to such a degree that it comes to exercise “a will independent of the society itself” in all things, at all times, and everywhere within society. And any such frailty in the federal system provides a breeding ground within society for the most malignant germs of factionalism—for, by becoming “a power independent of the society”, such a megalomaniacal governmental apparatus may serve whatever factions it will, or may itself become the most puissant and the least controllable, of all possible factions. (footnote 3)
1.) The Federalist No. 51 (James Madison).
2.) U.S. Const. amend. II. See Edwin Vieira, Jr., Three Rights (Ashland, Ohio, Bookmasters, Inc., 2013).
3.) By Tyranny Out of Necessity: The Bastardy of Martial Law, by Dr. Edwin Vieira, Jr., Bookmasters Inc., Ashland, Ohio (2014), page 143-144.
- James Madison contended that no conceivable ‘military establishment’ which Americans might foolishly have allowed to come into existence could overcome WE THE PEOPLE in arms—’well regulated Militia’.
James Madison contended that no conceivable “military establishment” which Americans might foolishly have allowed to come into existence could overcome WE THE PEOPLE in arms,
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. (footnote 1)
The turn of events which Madison did not foresee, however, is that today Americans are beset with a gigantic “standing army”, supported by an extensive military-industrial complex, but field no constitutional Militia in any of the several States. The most important components of the entire federal system—which the Constitution itself declares to be “necessary to the security of a free State” (footnote 2)—are conspicuous by their absence. So unless this deficiency is soon corrected, rather than be[ing] opposed [by] a militia * * * of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence” the police state being fastened around Americans necks will meet with only sporadic, disorganized, inept. and irresolute resistance from but some among WE THE PEOPLE—thus finally disproving the efficacy of the so-called “individual right to keep and bear arms” touted by certain self-proclaimed, but deluded champions of the Second Amendment. (footnote 3)
1.) The Federalist No. 46.
2.) U.S. Const. amend II.
3.) See The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), Chapters 45 and 46.
- The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. The meaning of the Constitution’s provisions are changeless, only their application is extensible.
The privilege to defend their absolute rights—which itself must be as absolute as are those rights—extends to every conceivable aspect of “the security of a free State” relevant to the times in which “the people” assert it. The Constitution does not limit the words “the security of a free State” in any manner. And “where no exception is made in [the explicit] terms [of the Constitution], none will be made by mere implication or construction”. (footnote 1) Because the Constitution must be “interpret[ed] * * * in such a manner as, consistently with the words, shall fully and completely effectuate the whole objects of it”, it is impermissible “so to construe any clause * * *as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them”. (footnote 2) Now, in the nature of things and throughout the course of human events,
[t]ime works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application that the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are * * * “designed to approach immortality as nearly as human institutions can approach it.” The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of the Constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a Constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. (footnote 3)
The provisions of * * * Constitution, undoubtedly, are pliable in the sense that in appropriate cases they have the capacity of bringing within their grasp every new condition which falls within their meaning. * * * [T]heir meaning is changeless; it is only their application which is extensible. (footnote 4)
in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and all the vicissitudes of the changing affairs of man, those fundamental purposes which the instrument itself discloses. Hence when we read its words * * * as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government. (footnote 5)
Self-evidently, “the great purpose[ ]” of the Second Amendment is to guarantee “the security of a free State”, by means of “well regulated Militia”, against “all the vicissitudes of the changing affairs of men”, whether the threats to that “security” or physical, political, economic, social, or even cultural in nature. (footnote 6)
1.) Rhode Island v. Massachusetts, 37 U.S.(12 Peters) 657, 722 (1838).
2.) Prigg v. Pennsylvania, 41 U.S. (16 Peters) 539, 612 (1842).
3.) Weems v. United States,217U.S.349, 373 (1910).
4.) Home Building & loan Association, 290 U.S.398, 451 (1934) (Sutherland, J., Dissenting) (emphasis in the original).
5.) United States v. Classic, 313 U.S.299, 316 (1941).
6.) See E.Vieira, Jr., The Sward and Sovereignty: The Constitutional Principles of “the Militia of the several States” (Front Royal, Virginia: CD-ROM edition, 2012), at 1307-1309.
- Revitalization of the Militia is the one and only truly effective way to guarantee and practice the rights secured in principle by the Second Amendment—something the ‘individual’ right to keep and bear arms can never, has never, and will never achieve.
Notwithstanding that Congress has enacted no new statutes that “provide for calling” forth the Militia to execute the laws of the Union”, or that “provide for organizing, arming, and disciplining, the Militia” for that purpose, according to constitutional standards (footnote 1)—notwithstanding that officials in the several States have done next to nothing to provide for “well regulated Militia” within the range of restrictions, either, but instead have gone along with Congress and consigned average Americans otherwise eligible for the Militia to the unconstitutional “unorganized militia” (footnote 2)—and notwithstanding that in many instances both Congress and many of the State’s legislatures have rendered revitalization of the Militia onerous in practice, by imposing numerous varieties of “gun-control” when average citizens—WE THE PEOPLE cannot take upon themselves the authority of Congress or any of their states legislatures to enact the necessary statutes on their own recognizance. Are the people therefore compelled to proceed only extra–legally in order to act effectively? Not at all.
The Second Amendment guarantees “the right of the people to keep and bear arms” so that “the people” will always possess the implements indispensable for their part for participation in “well-regulated Militia”. Implicit in “the right * * * to keep and bear Arms”, therefore, is “the right of the people” actually to serve in “well regulated Militia”—rights which are absolute, because “security of a free State” depends upon them. (footnote 3) These “rights”, the Second Amendment declares, “shall not be infringed”. No right, however, can escape “infringe[ment]” unless an effective remedy against attempt at its “infringe[ment]” exists. (footnote 4) Revitalization of the Militia is the one and only truly effective way to guarantee and practice the rights secured in principle by the Second Amendment. In the Militia, “the people” always exercise, to the fullest possible extent, “the[ir] right * * * to keep and bear Arms”. By definition, the so-called “individual right” to keep and bear arms cannot sustain institutions such as the Militia which are based upon collective action by “the people” as a whole. But the Militia can’t sustain both the individual and the collective “right of the people to keep and bear Arms”—because, the exercise of the latter right, “the people” as individuals necessarily exercise the former right as well.
If rogue legislators adamantly refused to assist “the people” in effectuating their right to serve in “well regulated Militia”, then “the people” can and must assert the privilege to proceed in their own way for their own self-defense under the auspices of the Second Amendment—especially when that course of action is necessary to guarantee “the security of a free State” in the face of those rogues’ other misdeeds deriving from or furthering their usurpation and tyranny. What, after all, is the alternative? (footnote 5)
1.) Contrast U.S Const. art. I, § 8, cls. 15 and 16, and amend. II, with 10 U.S.C. §§ 311(b)(2) and 331 through 333.
2.) E.g., contrast U.S. Const. amend. II and Virginia Const. art. I, §13 with Code of Virginia §§ 44-1 and 44-4.
3.) See E.Vieira, Jr., The Sward and Sovereignty: The Constitutional Principles of “the Militia of the several States” (Front Royal, Virginia: CD-ROM edition, 2012), at 1401-1423.
4.) See, e.g., Marbury v. Madison, 5 U.S (1 Cranch) 137, 162-163 (1803); United States ex rel. Von Hoffman v.City of Quincy, 71U.S. (4 Wallace) 535, 554
5.) See By Tyranny Out of Necessity: The Bastardy of Martial Law, by Dr. Edwin Vieira, Jr., Bookmasters Inc., Ashland, Ohio (2014), page 504.
The “rights” of individuals are no more than specific limitations upon the “powers” of public officials. A public official labors under a “duty” not to infringe upon an individual’s “right”. This duty entails a disability not to take official action—such as enacting or enforcing a statute—for the purpose or with the effect of such an infringement. A “disability” is the opposite of a “power”. Thus, a “right” establishes, in negative terms, a constitutional definition and therefore limitation on any “power” which public officials might attempt to assert against that individual in that respect. (footnote 7)
Every violation of a governmental power entails the violation of an individual right—because every individual is entitled to complain if public officials misuse or abuse any of their powers. (footnote 8) Simply by being enumerated (as they must be, in a written constitution), powers are defined; and precisely because and insofar as they are defined, they are limited. Logically, linguistically, and legally, the words that define a power also circumscribe it. Every power implicitly contains a corresponding disability. Because “affirmative words in the Constitution * * * must be construed negatively as to all other cases”, (footnote 9) a disability arises out of whatever the definition of a power excludes. The definition of a power is simultaneously the definition of a disability. (footnote 10)
Americans must recognize that not a single one of their rights has any practical value without a timely and effective remedy for its violation. Because “[a] right without a remedy is as if it were not. For every beneficial purpose it may be said not to exist.” (footnote 11) The Militia is that remedy.
1.) The Federalist No. 51 (James Madison).
2.) The Federalist No. 47 (James Madison).
3.) “The federal system” could also be called “the federal government”, because all of its components dispose of governmental authority of one sort and to one degree or another. As many Americans employ the term “federal government” as synonymous solely with the governmental apparatus in the District of Columbia, however, it best serves the purposes of clarity here to denominate that apparatus solely as “the general government”, in keeping with the practice during the founding era, and to refer to “the federal government” as “the federal system”.
4.) See U.S. Const. preamble.
5.) See U.S. Const. art. I, § 8 cls.15 and 16; art. II § 2, cl. 1; and amend. II. See generally Edwin Vieira, Jr., Constitutional “Homeland Security”, Volume One, The Nation in Arms; A Call For Americans To Revitalize “the Militia of the several States” (Ashland Ohio: Bookmasters, Inc., 2007); Constitutional “Homeland Security”, Volume Two, The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States” (Front Royal, Virginia: CD-ROM Edition, 2012); Thirteen Words (Ashland, Ohio: Bookmasters, Inc., 2013); and Three Rights (Ashland, Ohio: Bookmasters, Inc., 2013).
6.) See U.S. Const. art. I, § 2, cl.1: art. II, § 1, cl. 2; and amends. XII, XVII, XIX, XXIV, and XXVI.
7.) See A. Corbin, “Legal Analysis and Terminology”, 29 Yale Law Journal 163 (1919) at 165-166.
8.) Under U.S. Const. art. VI, cls. 2 and 3, if for no other reason. After all, no official can be “bound by [his] Oath or Affirmation” perforce of the latter clause unless someone can hold him legally accountable for violating it. This of course is the entire theory behind the entire Bill of Rights too. See RESOLUTION OF THE FIRST CONGRESS SUBMITTING TWELVE AMENDMENTS TO THE CONSTITUTION (4 March 1789), in Documents Illustrative of the Formation of the Union of the American States, House Document No. 938, 69th Congress, 1st Session (Washington D.C.: Government Printing Office, 1927), at 1063.
9.) Ex parte Vallandigham, 68 U.S. (1 Wallace) 243, 252 (1864) (emphasis in the original) (footnote omitted) Accord, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803); and Cohens v. Virginia, 19 U.S. (6 Wheaton) 264, 394-395 (1821).
10.) See By Tyranny Out of Necessity: The Bastardy of Martial Law, by Dr. Edwin Vieira, Jr., Bookmasters Inc., Ashland, Ohio (2014), page 178-179.
11.) United States ex rel. Von Hoffman v. City of Quincy, 71 U.S. (4 Wallace) 535, 554 (1867). Accord, Poindexter v. Greenhow, 114 U.S. 270, 303 (1885); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162-163.