AMERICA'S CHOICE:
A LIMITED GOVERNMENT OR A TOTALITARIAN GOVERNMENT 
|
WINTER
1996 |
| At its September 1996 meeting the Board of Directors of the
National Lawyers Association adopted the following resolution: |
 |
| National Lawyers Association is a full service
organization of attorneys from every state in the Union committed to
the concept that the Founding Fathers of the government of our Nation
established a government based upon the truths and principles set forth
in the Declaration of Independence; that all officeholders, including
judges, in the performance of their official duties, are to interpret
the Constitution in the light of those truths and principles; and that
among those truths and principles is the principle that all humans are
created equal and are endowed by their Creator with certain unalienable
Rights, including the right to Life, Liberty and the pursuit of
Happiness. |
Robert C. Cannada
Senior Counsel
Butler, Snow, O'Mara,
Stevens & Cannada, PLLC
Jackson, Missippi |
This resolution is obviously based upon the following
assumptions: (1) there is a legal connection or relationship between
the Declaration and the Constitution; and (2) all officeholders, by
their oath or affirmation, are obligated to recognize and honor that
connection or relationship in the performance of their official duties.
Article VI of the Constitution contains the following
provision: "the Senators and Representatives before mentioned
and the Members of the several State Legislatures, and all executive
and judicial Officers, both of the United States and of the several
States shall be bound by Oath or Affirmation. to support this
Constitution:...." Accordingly, there is no question but that
this constitutional provision applies to all officeholders, local,
state and federal, including "all executive and judicial Officers."
The question to be answered, therefore, is what is
meant by the term "to support this Constitution.'' If the Constitution
is a freestanding document, then the oath or affirmation of the
officeholder is limited to the language of that document. On the other
hand, if there is a legal connection or relationship between the
Constitution and the Declaration of Independence then the oath or
affirmation commits the officeholders to recognize and honor both
documents in the exercise of their official duties to the extent of
such connection or relationship.
The importance of this question was emphasized by
former President Jimmy Carter in a recent television interview. In
response to a question President Carter replied that as President he
had enforced the Constitution as interpreted by the Supreme Court.
There was no intimation of any limitations on the power of the Supreme
Court or that the Supreme Court was obligated to recognize any
guidelines or limitations on its powers.
The National Lawyers
Association takes the position that there is a legal connection or
relationship between the Declaration and the Constitution based, in
part, on the following:
A. Our Founding Fathers intended for the
Declaration to be the
foundation for the Government that was being established.
The "first draft" of the Declaration was basically
prepared by Thomas Jefferson and submitted to a Congressional Committee
of Five. The Committee ultimately agreed on a new draft and on Friday,
June 28,1776 reported this draft to Congress. Congress
immediately laid this draft on the table. Congress was not yet
ready to consider this document involving the establishment of the
government of the new nation since they had not yet declared the
independence of the Colonies from the British Empire. Accordingly,
Congress first took up what was designated as the Richard Henry Lee
Resolution of Independence. On July 2, 1776 Congress adopted the first
paragraph of the Lee Resolution -- the part respecting independence --
thereby officially separating the Colonies from the British Empire.
Having taken the necessary action to separate the
Colonies from the British Empire, Congress then began consideration of
the draft of the Declaration of Independence that the Committee of Five
had reported. After numerous changes, the document was officially
approved by Congress on July 4, 1776. Thus. among other
things. our founding fathers left as a legacy to America the idea that
liberty -- individual unalienable rights -- is a reality for which men
will sacrifice their lives. their fortunes and their sacred honor.
The foundation of the government of the United States of America had
been established. That foundation consisted of the principles set forth
in the Declaration. These principles were to be permanent. They were to
be unchanging end unchangeable. There was no provision whatsoever for
any amendment being made to the Declaration. The Creator endowed
unalienable Rights of the individual were to be "secure" -- that was
the assigned task of the government that was being instituted. This was
specifically set forth in the Declaration as follows:
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. That to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent of
the governed.
The Founding Fathers clearly intended to preserve for
the people of the United States the same unalienable rights which the
Founding Fathers claimed as the justification for their separating the
colonies from the government of Great Britain. They expressed this
justification in the Declaration as follows:
But when a long train of abuses and
usurpations, pursuing invariably the same Object evinces a design to
reduce them under absolute Despotism, it is their right, it is their
duty, to throw off such Government, and to provide new Guards for their
future security.
The government which they were instituting was to be
a "guard" of the God-endowed unalienable rights of each individual in
the United States. The government was not to be authorized to destroy
those rights. To the contrary, the government was to guard or secure
those rights.
Dean Clarence Manion, the Dean of the College of Law
at Notre Dame University for more than a quarter of a century, in his
book The Key to Peace defined this "government" as follows:
Constitutions and Bills of Right are but vain
and futile barricades against tyranny unless, as our Declaration of
Independence says-they are firmly founded in and upon the "Laws of
Nature and of Nature's God."
Dean Manion, in his book also made the following
observation:
In both "form" and "substance" our American
system is basically different from any politically organized society
now or heretofore existing in the world.
The "rights," namely the unalienable rights
of each person in the land, constitute the "substance" of American
government. The "device" by which these rights can be secured is the
American "form" of government. The conjunction of this "form" and this
"substance" was unique and new in Jefferson's time and it is completely
unique today.
A Republican form of government strictly and
constitutionally dedicated to the protection of the God-given
unalienable rights of men appeared in the world for the first time with
the organization of the United States of America This "form" was then
and there composed and designed to hold and contain its precious
substance. (Emphasis added.)
For the first time in the history of the world there
was placed in the document establishing a nation the concept that the
government being established for the new nation was to be a
government with limited powers; a government that had no authority to
supersede or contradict the Laws of Nature: a government that was
charged with the responsibility of securing the God-endowed unalienable
rights of the individual. Yet, and this is extremely
important, the document made no reference to any religion. The
officeholders in the government were to recognize and honor the
principles and truths set forth in the document establishing the
government but these truths and principles were to be considered as
"self evident" and not part of any religion. The
Founding Fathers did not intend to establish a totalitarian government
nor did they intend to establish a government into which a religion was
intermingled. They intended to establish a government based upon
self-evident truths. They accomplished this in the Declaration of
Independence. The Declaration had two purposes: (1) give a
justification to the world for its previous actions in separating from
Great Britain and (2) take the first step in creating a government with
limited powers -- establish its unchangeable foundation.
B. The language in the Declaration of
Independence itself makes it
clear that it is to be a vital and necessary part of the
government.
It is the language in the Declaration that sets
forth the assigned purpose of the government -- the government
is being instituted to "secure" the unalienable individual rights with
which all humans have been endowed by their Creator. In addition, the
language in the Declaration provides specifically that wherever
any form of government fails to "secure" those unalienable rights then
it is the right of the people to alter or to abolish that government.
The Declaration then goes on to provide that if the people do decide to
alter or to abolish the government and to institute a new government
then the new government should consist of (a) a foundation
composed of principles and (b) powers in the officeholders which are
organized in a way and manner satisfactory to the poeple. In
other words, the Declaration not only sets up the foundation for the
government being established but it goes further and states that if the
government leaves that foundation the people have the right to alter
and abolish that government and then sets forth the two steps that the
people should take in establishing a new government. Those two steps
are to establish a foundation composed of principles and then to
organize the powers of the officeholders. There is simply no question
but that the Founding Fathers intended that the principles and
self-evident truths set forth in the Declaration were to constitute the
foundation for the new government. It is the Declaration that
sets forth the assigned purpose of the government and prescribes what
is to be done if the government fails to serve in accordance with that
purpose.
C. The language in the Constitution
acknowledges its legal
connection or relationship with the Declaration.
1. The Preamble to the Constitution recites that its
purpose is "to form a more perfect union ...." The Declaration had been
in effect for 12 years and the Articles of Confederation, which was the
first document organizing the powers of the officeholders, had been in
effect for 10 of those years. Some changes in the organization of the
powers of the officeholders were needed and thus the Constitution was
written and adopted to take the place of the Articles of
Confederation-to form a "more perfect union."
2. The Constitution which was adopted in 1787 provided that
a member of the House of Representatives was required to be a citizen
of the United States for at least 7 years and a member of the Senate
was required to be a citizen of the United States for at least 9 years.
Since the Declaration had established the United States of America as a
nation in 1776, candidates for the House and for the Senate who had
lived in this nation for the required years could meet this
requirement. The Declaration had established the nation so that
citizenship could begin any time after the enactment of the
Declaration. Had it not been for the Declaration there would have been
no nation in which the people could have been citizens so that no one
could have qualified for these offices. Interestingly, the Constitution
also provided that a person, in order to serve as President, must have
been a resident within the United States for at least
14 years. Accordingly, the first President had to
have been a resident of the geographic area before
the formation of the nation by the Declaration of Independence in 1776
and continue to be a resident of the geographic area until his election
as president. Citizenship, as such, for this period of time could not
be required since the nation, at the time of the enactment of the
Constitution, had not been in existence for 14 years. Clearly, the
Declaration is recognized as the document creating the nation in which
there could be "citizens."
3. In its final paragraph, the Constitution recognizes that
it, the Constitution, is being executed on the 17th Day of September
1787, "And of the Independence of the United States of America, the
Twelfth." This reference in the Constitution is obviously to the
Declaration of Independence. The Declaration was dated July 4, 1776 and
the Constitution was adopted in 1787 -- the twelfth year after the
adoption of the Declaration.
D. The Declaration has been referenced by
various federal courts in hundreds
of decisions including several decisions by the United
States Supreme Court.
E. Legislation by Congress admitting states
into the union acknowledges
and confirms that the principles set forth in the
Declaration constitute
the foundation of the government of America.
The original thirteen states had been a party to the
enactment of the Declaration and the Constitution and thus as to those
states there was clearly a legal connection or relationship between
those two documents. The statutes admitting states into the Union prior
to 1864 provided that they were being admitted with the same rights and
subject to the same conditions as the original thirteen states.
Beginning in 1864, every state admitted into the Union has been
admitted under specific legislation which provides, in essence, that
the Constitution of the state "shall be republican, and not
repugnant to the Constitution of the United States, and the principles
of the Declaration of Independence." This provision, or
provisions similar thereto, appear in legislation admitting the states
of Alaska, Arizona, Colorado, Hawaii, Montana, Nebraska, Nevada, New
Mexico, North Dakota, South Dakota, and Washington, with the states of
Alaska and Hawaii being admitted in 1958 and 1959 respectively. In this
way the legal connection or relationship between the Declaration and
the Constitution has been specifically recognized and honored by
Congress within the last 50 years. This would appear to be
conclusive as to this question of whether there is a legal connection
or relationship between the Declaration and the Constitution.
The above constitutes only a part of the evidence that is
available to show that there is a legal connection or relationship
between the Declaration and the Constitution.
The National Lawyers
Association takes the position that the practical effect of the legal
connection or relationship between the Declaration and the Constitution
is that the Constitution is to be interpreted in the light of the
principles set forth in the Declaration.
A. The United States Code Annotated treats
the Declaration as a part of the organic law of the government of the United States
of America.
1. The Preface to the United States Code - Annotated states
that "this code is the official restatement in convenient form of the
general and permanent laws of the United States in force December 7,
1925...." The Preface also states that there is also contained therein
a copy of the Declaration of Independence, the
Articles of Confederation, the Ordinance of 1787 and the
Constitution with Amendments.
In the Explanation page of the Code there is a
statement setting forth what makes up the Organic Laws of the
government of the United States of America. That statement is as
follows:
The complete text of the United States
Constitution is set out in this volume. It is preceded by the
Declaration of Independence, the Articles of Confederation and the
Northwest Ordinance.
Under the title "The Organic Laws of the United
States of America" there is included the complete texts of the
Declaration of Independence, the articles of Confederacy, the Northwest
Ordinance and the Constitution.
Black's Law Dictionary contains the following
definition for the term "organic law":
The fundamental law, or constitution, of a
state or nation, written or unwritten. That law or system of laws or
principles which defines and establishes the organization of its
government.
Thus. the official publication of the laws of
the United States of America. the United States Code Annotated, defines
the connection or relationship between the Declaration and the
Constitution to be that they are both part of the "law or system of
laws or principles which define and establish the organization of" the
government of the United States of America.
2. Justice Douglas of the United States Supreme Court in
the case of McGowan v. Maryland, 166 US. 420 (1961),
stated:
The institutions of our society are founded
on the belief that the" is an authority higher than the authority of
the State; that there is a moral law which the State is powerless to
alter; that the individual possesses rights, conferred by the Creator,
which government must respect. The Declaration of Independence states
the now familiar them: "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."
And the body of the Constitution as well as the Bill
of Rights enshrined those principles.
Justice Douglas states that the principles of the
Declaration are "enshrined" in the Constitution as well as in the Bill
of Rights. This is the legal connection or relationship between the
Declaration and the Constitution as viewed by Justice Douglas.
3. The platform of the Republican Party of 1860, upon which
Abraham Lincoln was elected President of the United States of America,
contains the following resolution:
Resolved that the maintenance of the
principles promulgated in the Declaration of Independence and embodied
in the Federal Constitution . . . is essential to the preservation of
our Republican Institutions.
The Republican Party, as of 1860, and Abraham Lincoln
viewed the principles of the Declaration as being "embodied" in the
Constitution. This is their view of the legal connection or
relationship between the Declaration and the Constitution.
4. Prominent constitutional lawyer William Bentley Ball
expressed this legal connection or relationship between the Declaration
and the Constitution as follows:
The Declaration is the Preamble to the
Preamble to the Constitution.
Other lawyers state that the Declaration constitutes
the "letter of intent" for the drafting and signing of the
Constitution.
The practical effect of all of these approaches to the
legal connection or relationship between the Declaration and the
Constitution is that all officeholders are to
interpret the Constitution in the light of the principles of the
Declaration of Independence -- to function in accordance with the
Organic Laws creating and organizing the government.
It is a self-evident truth that the government of any
democracy that does not recognize and honor any transcendent truths or
principles -- absolutes -- will inevitably turn into a government
exercising totalitarian powers. The shadow of a totalitarian government
is hanging over Americans today. Failure to act promptly means a
government with totalitarian powers for America. 
| ABOUT THE AUTHOR
Bob Cannada is Senior Counsel at Butler,
Snows, O'Mara, Stevens & Cannada PLLC
and is a member of NLA's Board of
Directors.
|
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