1. Which Constitution?
America’s Critical Choice
Presentation to the VALS Winter Board Seminar, January 30, 2016
Gary R. Porter, Executive Director,
Constitution Leadership Initiative, Inc.

2. The Problem
 Burdened by $20 Trillion in official national debt and
$100+ Trillion in unfunded obligations, America faces a
critical choice: continue the present course to near-
certain bankruptcy, or make significant, perhaps
monumental changes in how government operates.
 Before choosing, it bears reflecting on how we
arrived at this point.

3. What is a Constitution?
Black’s Law Dictionary, 4th Edition:
“The organic and fundamental law of a nation
or state, which may be written or unwritten,
establishing the character and conception of
its government, laying the basic principles to
which its internal life is to be conformed,
organizing the government, and regulating,
distributing, and limiting the functions of its
different departments, and prescribing the
extent and manner of the exercise of
sovereign powers.” (emphasis added)

4. America’s First Constitutions:
The Colonial Charters
Each colony was governed by a charter,
whether proprietary or royal.
The charter was an agreement between the
colonists and the King.
Each charter described how the colony was
to be governed, and the rights the colonists
would enjoy.
Notably, the charters did not mention
Parliament.

5. Virginia’s Charter History
First Charter – 1606
Government by two 13-man councils, one in
“Jamestowne,” one in England.
[The colonists] “shall HAVE and enjoy all Liberties,
Franchises, and Immunities, within any of our other
Dominions, to all Intents and Purposes, as if they
had been abiding and born, within this our Realm
of England, or any other of our said Dominions.”

6. Virginia’s Charter History
Second Charter – 1609
Extended Virginia’s land boundaries “sea to sea.”
A Governor and Governor’s Council was appointed
to rule.

7. Virginia’s Charter History
Third Charter – 1611
Extended Virginia’s jurisdiction eastward to include
islands such as Bermuda
With no profits to share, the Virginia Company
began distributing 50-acre plots of land to settlers
and investors

8. Virginia’s Charter History
A Banner Year – 1619
America’s first representative government instituted:
The Virginia House of Burgesses
Now ruled by a Governor, his council, and 22 elected
representatives
It didn’t take long
before….

9. Parliament Started “Meddling”
1630 – Navigation Acts
1660 – Wool Act
1733 – Molasses Act
1751 – Currency Act
1764 – Sugar Act
1765 – Quartering Act
1765 – Stamp Act
1766 – Declaratory Act: Declared that Parliament's
authority was supreme in making laws binding on the
American colonies.

10. Then Parliament Kept “Meddling”
 1773 – The Tea duty, followed by the Tea “Party”
 1774 – Boston Port Act
 1774 – Quartering Act
 1774 – Administration of Justice Act
 1774 – Massachusetts Government Act
 Feb 1775 – Parliament declares Massachusetts to be
in rebellion.
 Apr 1775 – Skirmishes at Lexington and Concord

11. The Colonies React
1765 - The Stamp Act Congress (9 colonies only )
 Meets in NYC and issues a “Declaration of Rights and
Grievances.”
Sep 1774 – 1st Continental Congress meets
 Issues a “Declaration and Resolves.”
May 1775 – 2nd Continental Congress meets
 Issues a "Declaration on the Causes and Necessity of
Their Taking Up Arms.“
May 1776 – 2nd Continental Congress resumes
 Issues a “Unanimous Declaration of the thirteen
united States of America”

12. The Declaration of Independence
The Preamble: “When in the Course of human events,…”
The Introduction: “We hold these truths…”
The Complaints: “He has refused his Assent to Laws…”
The Conclusion: “We, therefore, the Representatives of
the united States of America…”

13. Complaint #13
“He has combined with others to subject us to a
jurisdiction foreign to our constitution, and
unacknowledged by our laws; giving his Assent to
their acts of pretended legislation:…”

14. America’s Unwritten Constitution
Some features of this Constitution can be
discerned from the complaints in the Declaration:

15. America’s Unwritten Constitution
General principles of government:
 The purpose of Government is to secure man’s unalienable,
God-given rights
 Government derives its “just” powers from the governed
 Government is not permanent, it can be abolished and
replaced by new forms
 But, the form of government is unalterable without the
consent of the governed
 Government should not incite its citizens to insurrection

16. America’s Unwritten Constitution
• The Executive:
– The Executive (and the government as a whole) must not become
tyrannical
– The Executive must not dissolve Representative bodies
unilaterally
• The Legislature:
– The Legislature’s laws must be implemented, they cannot be
ignored
– Legislative bodies must have the latitude to set their own agenda
and rules, free from constraint or influence from the Executive
– The power to legislate is permanent and devolves to the people
when suspended
– Rules for immigration and naturalization fall under the purview of
the Legislature, not the Executive

17. America’s Unwritten Constitution
The Judiciary and the Law:
 Government should have a Judiciary power
 Judges should be independent and act free from influence by
the Executive
 Military law should be subservient to civil law
 Infractions by the military must be punishable in civil court

18. America’s Unwritten Constitution
The People’s Rights:
 The right to be secure in their life, liberty and their pursuit of
happiness (or property)
 The right of representation in government
 The right of habeas corpus and local trial
 The right of petition for redress of grievances
 The right to be taxed only by consent
 The right to first consent to quartering troops
The People’s Duties:
 An obligation to make their objections known
 The duty to throw off oppressive government

19. America’s Unwritten Constitution
 If America had an unwritten Constitution in
1776, could it have one still today?
 I think so, as do others:
Hold that thought!

20. America’s Next Constitutions:
The State Constitutions
 New Hampshire enacted a new state Constitution on 5 Jan
1776.
 South Carolina followed on 12 April.
 On 10 May Congress encouraged any of the colonies who had
not yet done so to form new governments.
 The rest of the colonies followed:
 Virginia June 29, 1776
 New Jersey July 2, 1776
 Delaware September 21, 1776
 Pennsylvania September 28, 1776
 Maryland November 11, 1776
 North Carolina December 18, 1776
 Georgia February 5, 1777
 New York April 20, 1777
 Massachusetts March 2, 1780
 (Rhode Island and Connecticut continued under original charters)

21. America’s Next Constitution?
The Articles of Confederation
 Drafted June 1776
 Not approved by Congress until
Nov 1777
 Not ratified until March 1781
 More like a treaty than true
Constitution
 Didn’t create a “government”
 Any changes required unanimity
– impossible to achieve
 Congress unable to raise money,
control commerce

22. Bottomline: The Articles Didn’t Work!
April 1787 – James Madison writes: “Vices of the
Political System of the United States”
Defects in the Articles:
 Congress given very few powers
 No Executive
 No Judiciary
 No permanent governmental administrative structure
Results of these Defects:
 Congress perpetually “broke,” debacle at Valley Forge
 No way to settle disputes between the states
 State courts became “tyrannical”
Shay’s Rebellion was a “wake-up call”
Talk of separate confederations

23. The States Take Action
Mt Vernon Conference, March 21-28, 1785
Annapolis Conference, September 11–14, 1786
The “Grand Convention,” May 24- September 17,
1787

24. The Constitution of 1788
Fifty-five delegates attended
Forty-two present on final day
Three withheld their signatures
A “sparse” document (only 4543 words in 7 Articles)
Compromises over slavery, representation
Ratification was unlikely without promise of a Bill of
Rights
“Bill of Rights” added December 15, 1791 by Virginia’s
ratification of 10 of 12 proposed amendments
This allowed North Carolina and Rhode Island to ratify.

25. Principles of our Constitution
Limited Government, Enumerated Powers
Federalism
Separation of powers
Checks and balances

26. Limited Government: That Was Then
“[T]he powers of the federal government are
enumerated; it can only operate in certain cases; it
has legislative powers on defined and limited
objects.”
James Madison, Speech in the Virginia Ratifying
Convention, June 6, 1788

27. Limited Government: This is Now
 At a townhall meeting in Hayward, California on July 24,
2010, Congressman Peter Stark was asked about the
constitutionality of the Affordable Care Act (aka, Obamacare):

28. Federalism: That Was Then
Federalism is a system of shared power.
As part of the original federalism plan in the
original Constitution, the States also exerted power
in the Senate; each state appointed its Senators,
and could recall them if they did not vote in the
State’s best interest,
 i.e., the States could block legislation in Congress
through the votes of their Senators

29. Federalism: This is Now
The 17th Amendment changed appointment of
Senators by State legislatures to election by
popular vote
No longer could State legislatures directly
influence the passage of legislation in the Senate.
States must now use other means to block
unconstitutional federal power (nullification,
interposition, court suits, etc)

30. Separation of powers: Then
The Legislative Branch (Congress) legislates, the
Executive Branch executes and enforces, and the
Judicial Branch settles “cases and controversies.”
“That the legislative and executive powers of the
state should be separate and distinct from the
judiciary; Virginia Declaration of Rights, Section 5.
“All legislative Powers herein granted shall be
vested in a Congress of the United States, which
shall consist of a Senate and House of
Representatives.” Article 1, Section 1

31. Separation of powers: Then
“For it being but a delegated Power from the
People, they, who have it, cannot pass it over to
others. . . . And when the people have said, We will
submit to rules, and be govern'd by Laws made by
such Men, and in such Forms, no Body else can
say other Men shall make Laws for them; nor can
the people be bound by any Laws but such as are
Enacted by those, whom they have Chosen, and
Authorised to make Laws for them.”
John Locke, 1690

32. Separation of powers: Now
“Applying this "intelligible principle" test to
congressional delegations, our jurisprudence has
been driven by a practical understanding that in
our increasingly complex society, replete with ever
changing and more technical problems, Congress
simply cannot do its job absent an ability to
delegate power under broad general directives.
Accordingly, this Court has deemed it
"constitutionally sufficient" if Congress clearly
delineates the general policy, the public agency
which is to apply it, and the boundaries of this
delegated authority.” Mistretta v. United States

33. Separation of powers: Now
The result: “Rules” with the force of law.
 Executive agencies with rule-making power, rule-
enforcing power, and rule-adjudicating power (i.e.
legislative, executive, and judicial powers are
co-located)
35 executive branch agencies maintain
administrative law judges
Social Security Administration has over 1,400, who
adjudicate over 700,000 cases each year*
* https://en.wikipedia.org/wiki/Administrative_law_judge

34. Checks and Balances: Then
Examples of “check and balances:”
 The President appoints senior officers, but the Senate must
confirm them
 The President negotiates treaties, but the Senate must ratify
 The Congress passes legislation, but the President can veto
 The President can veto, but the Congress can override
 The Congress can limit the Supreme Court’s appellate
jurisdiction
 The Congress can un-fund an executive action it deems
inappropriate
 The Congress can impeach and remove from office judges
and senior officers

35. Checks and balances: Now
Even though many Presidents have exceeded their
constitutional powers or sought to enlarge them,
only two Presidents have been impeached in our
history (Andrew Johnson and Bill Clinton)
Congress has used “jurisdiction stripping” at times
but not all Congressmen know of this power
Congress has used the “power of the purse” on
occasion
Veto overrides are impossible to achieve in an
evenly divided Congress

36. Commerce Clause: Then & Now
 The Commerce Clause was written to allow Congress to
regulate (i.e., make regular) commerce between the states.
 “[The Congress shall have Power] To regulate Commerce
with foreign Nations, and among the several States, and with
the Indian Tribes;”
 In “Today’s Constitution”, the Commerce Clause takes 123
pages to explain.
 Thanks to numerous rulings, the commerce clause now
provides Congress the power to regulate any aspect of U.S.
business whether goods cross interstate boundaries or not.
 Poster child: Wickard v. Filburn. Farmer Filburn was denied
the right to grow wheat for his own animals because to allow
that would affect the interstate market in wheat.

37. General Welfare: Then & Now
 The Congress shall have Power To lay and collect Taxes,
Duties, Imposts and Excises, to pay the Debts and provide for
the common Defence and general Welfare of the United States;”
Article 1, Section 8, Clause 1
 “If Congress can do whatever in their discretion can be done by
money, and will promote the General Welfare, the Government
is no longer a limited one, possessing enumerated powers, but
an indefinite one, subject to particular exceptions.” James
Madison, letter to Edmund Pendleton, 1792
 "The true test is, whether the object be of a local character, and
local use; or, whether it be of general benefit to the states. If it
be purely local, congress cannot constitutionally appropriate
money for the object. But, if the benefit be general, it matters
not, whether in point of locality it be in one state, or several;
whether it be of large, or of small extent." --Joseph Story,
Commentaries on the Constitution, 1833

38. General Welfare: Then & Now
 “Congress may spend money in aid of the 'general welfare'...
The discretion belongs to Congress, unless the choice is
clearly wrong, a display of arbitrary power, not an exercise of
judgment.” Helvering v. Davis (which sanctioned Social
Security)

39. The Judicial Power
Article 2, Section 2, Clause 1: “The judicial Power
shall extend to all Cases, in Law and Equity,
arising under this Constitution,…”
 These words have become:
“The Constitution is what
the judges say it is”
Future Supreme Court Justice
Charles Evan Hughes.
Remember America’s Unwritten Constitution?

40. The Constitution: Then
 Original Constitution: 4543 words (Articles 1-7), 7591 words
counting the 27 amendments

41. The Constitution: Today
Welcome to: “U.S. Constitution, Analysis and
Interpretation.”
Purchase from the Government Printing Office. ($290)
Downloadable in PDF format from .gov websites.
Contains all relevant federal court opinions affecting
Constitutional interpretation.
The official interpretation of the Constitution used by
Congress.
 Newly-elected Congressmen are
provided a copy upon arrival in
Washington.

42. So to the Question:
We face a critical choice:
Which Constitution would you prefer to live under:
the one describing carefully limited and
enumerated powers, or the one the Supreme
Court’s rulings has produced?
or

43. How Do We Return to a
Limited Constitution?
1. Elect 435 representatives and 100 Senators who promise
to ignore the near limitless power the Court has granted
and operate only within the original meaning of the
Founder’s Constitution, or…
2. Wait for the Supreme Court to revisit its earlier opinions
and overturn those which granted the federal government
excessive or unwarranted power, or…
3. Amend the wording of key constitutional clauses to remove
the ambiguity the Courts took advantage of in granting the
federal government the “power to do most anything.”
 Which of these choices stands the best chance of success?

44. So You Want to Amend the
Constitution?
Article V provides two methods of amending the
Constitution:
1. Congress may pass a proposed amendment with a 2/3
vote of each house. They then send the amendment to
the states for ratification, or
2. 2/3 of the states may petition Congress to call a
convention at which amendments may be proposed; these
are then sent to Congress for forwarding to the states for
ratification.
Congress may choose whether amendments are
to be ratified by state legislatures or in state
conventions.
If ¾ of the states ratify, the amendment becomes
part of the Constitution.

45. So You Want to Amend the
Constitution?
Thus far, Congress has proposed all 27
amendments to the Constitution.
Proposals to enact term limits, require a balanced
budget, repeal the 17th Amendment and otherwise
restrict the power of Congress have been
introduced in Congress multiple years and have
failed each time to achieve the required 2/3 vote of
both houses.
Over the years there have been hundreds of state
petitions calling for a convention, thus far
Congress has not felt compelled to call one.
One reason: petitions in the past have requested a
convention for a variety of purposes.

46. So You Want to Amend the
Constitution?
 There have been 32 state petitions (2/3 of the states = 34) for
a Balanced Budget Amendment convention, but three states
subsequently retracted their petitions, leaving the count five
short of requiring Congress to call the convention.
 The Convention of States Project recommends states not
specify a specific amendment in their call, but instead
request a convention to propose amendments which:
 Limit the power and jurisdiction of the federal government
 Impose fiscal constraints on the federal government
 Limit the terms of office for its officials and for members of
Congress.
 Four states have passed, 21 considering this year.

47. Is a Convention Too “Risky?”
 Some contend a convention would place the entire
Constitution at risk.
 Come contend a convention cannot be limited to certain
types of amendments.
 Some contend that Congress, not the states will control the
operations of a convention.
 All these concerns are addressed by Convention of States
Project (www.conventionofstates.com)
There does exist a final option…

48. The Final Option
So, which option do you
support?

49. Constitution Leadership Initiative
 Saturday Seminars are offered on the U.S. Constitution to
groups and individuals.
 Seminars for youth are also available
 Signup if you are interested
 I write two weekly essays on the Constitution:
 Constitutional Corner – on a single Constitutional topic
 Constitution’s Week in Review – comments on recent headlines
 Signup to get on mailing list
 I host a weekly radio show – “We the People – The
Constitution Matters” 7-8am Fridays, Listen live at
www.1180wfyl.com
 Join us live or download the podcast afterwards

50. Questions?