Musings on the Preamble to the Constitution

Inspired by Theodora Anne Merry

   Goldflame* has presented an argument from the preamble to the constitution that Trump is violating the oath of office by not upholding the constitution, in a comprehensive way, and we think that is true. That is, tyranny of course does not fulfill any of the six stated purposes in the preamble. But there is reflection on the preamble that it worth considering, and we base our assertion that Trump has violated his oath of office on more particular points, such as his intimidation of the press, which, when done by the executive, violates the First Amendment protection of Free Speech. The Trumpsters will  of course say that fascism makes for a more perfect union, by destroying the share in sovereignty of the states, That tyranny such as that of Duterte in the Philippines and ICE in the United states woks to enforce justice, establish domestic tranquility, etc, and that their racist foreign wars provide for the common defense, all to the general welfare, and tyranny is what they call Liberty,” especially the liberty to oppress and the free speech to intimidate.

  The preamble of the Constitution is very strange in that, though implicit in the last purpose, it does not mention the purpose of government stated in the Declaration “to secure these rights,” nor does the word equality appear in the constitution until after the Civil War.  The preamble was written by Gouveneur Morris of Pennsylvania, while Jefferson was away in France. Mr. Morris sets out the purposes for which a people establish a constitution, but leaves something out that is uniquely in the American Constitution. Hence, Jefferson is present in the Constitutional Convention only as he is present in his friend James Madison. But Jefferson is a good half of the constitution of American Liberty, and after the addition of a Bill of Rights was promised, signed it.

    As stated by an old teacher, “Equality is not a right, it is a principle.” As Lincoln states, in his speech on the Dred Scott case, explains, all men are created equal in this sense: that they are equally endowed with the rights to life, liberty and the pursuit of happiness. The “Equal protection of the laws” as a statement of a right did not enter the Constitution until the Fourteenth Amendment, after the Civil War. The repetition of the Declaration’s “Life, liberty and the pursuit of…property” binds the states to observe the principles of the Bill of Rights, which had, prior to the Civil War, applied only to the national government. (The pursuit of happiness is secured in part by the religion clauses of the First Amendment, and can be spelled out by the other rights, such as the Fourth and Fifth, protecting privacy and liberty). Hence, despite the fine statement of the six symmetrical purposes of this particular Constitution,** when Madison consulted Jefferson about the need for a bill of rights, the answer was that some constitutions do not need a bill of rights, but this one does (Letter). Though the national government is delegated no power to violate these rights, history has proven that the national government is inclined to just not get it. And so, indeed as Madison was persuaded, the rights needed to be spelled out. The articulation of the Jeffersonian Second Sentence of the Declaration in the text of the Constitution is in the Bill of Rights. The purpose of Government is to secure rights, and tyranny violates this, though it claim to unify us, arbitrate fur us, pacify or tranquilize, protect, defend, “help”and free us. The Declaration, like the Constitution, is fundamental law in the United States, though it must be spelled out in the Constitution. Lincoln, drawing on the proverb, set a well spoken word when he described the relation between the two as “apples of gold in a filigree of silver,” the Constitution being the filigree.

   As seems unbelievable to the students today, just after The Civil War, and for about 10 years, the South was occupied by federal troops, and politics in the United States was much like it is today, now that the principles have been re-attained. Blacks were allowed to vote, there were Black men in the Senate, and Apartheid or segregation was forbidden in public accommodations.  What the 13th though 15th Amendments did was was to insert equality into the text of the Constitution itself, with the equal protection clause …nor deny to any person in its jurisdiction the equal protection of the laws,” XIV). According to an account of Morris Fiorina, after the Civil War, elections were highly competitive. But once the Democrats were no longer competitive in the North and West, the black voting block was no longer needed, and “the Republicans abandoned the South to the Democrats, who completed their disenfranchisement of black Americans.”***  Black voters as a block were needed by the Republican party, then the party of Lincoln, but as soon as the voting block was no longer needed, the South was allowed to roll back Reconstruction. The Civil Rights Act of 1875 was overturned, in 1883. Through segregation, Jim Cow laws and strange unconstitutional voting restrictions, By the time Harry Truman reached back again for the black vote, about 1948, only ten percent of African Americans were registered to vote. The Yarbrough case happened, just as after Reconstruction came to a close, and just prior to the Plessy v. Ferguson case (1896). In a word, the KKK was told they could not prevent Blacks from voting, even in primaries. This had little effect, as tyranny can make the Constitutional limits mere parchment barriers.

Note* Goldflame, presented by the DNC in Daily Kos, Tuesday May 16 2017.

Note ** The symmetry, noted by students of Leo Strauss and George Anastaplo in his Commentary The Constitution of 1787, is most evident in the central pairing of policing and soldiering in the third and fourth purposes, but is also evident pairing 2 with 5 and 1 with 6.

These are, 1) To form a more perfect union;

2) To establish justice

3) insure domestic tranquility

4) provide for the common defense

5) promote the general welfare (Common good)

6) secure the blessings of Liberty to ourselves and our posterity

 

Note *** Morris Fiorina and Paul E. Peterson, The New American Democacy, 2001, p. 174

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