245 Years and Counting

On the occasion of July 4th 11 years ago this blog featured an essay parsing our Declaration of Independence. [1] The essay has been re-posted a number of times, including on the same occasion last year. It has not previously addressed the bill of particulars — the list of accusations leveled against King George III.[2] A reader suggested that I might write an essay pointing out the clauses in the Constitution that sought to ameliorate or prevent abuses similar to King George’s transgressions.

It is the structure of the Constitution for the most part, rather than specific clauses or provisions, that provides a mechanism for removing the facility for those abuses of which the King was accused. First and foremost the Constitution created a federal system of government with limited and delegated powers, not an all-powerful central sovereign. The powers of sovereignty are separated and shared by the several States and the government of United States, which itself is separated into independent legislative, executive, and judicial branches. Article 1, Section 8 delegates subjects upon which Congress may legislate; and Section 9 of that Article specifically prohibits certain acts by Congress. The States, inherently sovereign, are limited by the Constitution in certain ways described in Article I, section 10, and in a number of the Amendments. The 10th Amendment provides that the powers not delegated to the United States nor prohibited by it to the States, are reserved to the States or the people.[3]

Thus, the Constitution’s structure was designed to provide a mechanism to inhibit a central authority, and to some degree the several States, from committing the abuses described in the Declaration.

More specifically, the Declaration complained of the dependence of the judiciary and the military upon the will of the King. The Constitution provides that the federal court justices and judges are appointed by the President, but must be confirmed by the Senate, and once confirmed cannot be removed from office, except by impeachment for bad behavior. They may not be coerced or punished by having their compensation reduced. While the President, an elected civilian, is the commander-in-chief of the military forces, only Congress can declare war. [4] Funding of the defense establishment, or at least the Army, is dependent upon appropriations by Congress. Such appropriations cannot be made for more than two years at a time.[5]

The Declaration complained that King George denied the American colonists trial by jury, and that they were transported “beyond the Seas” to be tried for crimes. The Constitution, Article III, Section 2, specifically provides a right to be tried by jury in criminal cases and such trial must be held in the State where the crime has been committed. The Fifth Amendment was enacted to provide further protection of persons accused of crime from arbitrary and capricious prosecutions by requiring an indictment by a grand jury, and other procedural safeguards.[6]

One enumerated abuse in the Declaration was the quartering of British troops on private property in the colonies without the owner’s consent. While the belief that this included private family homes became widespread, at least one historian has determined this to be a myth. It is interesting that the Quartering Act of 1774 expired three months before July 4, 1776. The Constitution’s Third Amendment addressed this abuse, though an issue concerning it has never been the subject of any judicial action.[7]

This is been a commentary, short because of the press of time, regarding the significant events that led to the formation of our country. There may be more to come, stay tuned.

But today, we wish a happy birthday to the United States of America, and despite the trials and tribulations that have occurred, and will doubtless continue, may it survive for another 245 years.

Endnotes

[1] https://wordpress.com/post/bobreagan13.com/593

[2] While the King had to give the Royal Assent to the laws, it was the Parliament and Prime Minister who made the policy. No British monarch has vetoed an act of Parliament since Queen Anne’s reign (1702–1714).

[3] The 10th Amendment appears to have been ignored when Congress and Presidents have found it politically expedient to do so. Never let a crisis go to waste, someone said. The Great Depression of the 1930s, and World War II, spurred Congress, with the ultimate approval of the judiciary, to expand the meaning of the regulatory power of commerce in Article 1, Section 8 (second clause) to encompass nearly everything that has even the most tenuous effect on interstate commerce. There has been some push-back in recent decades, but not much.

[4] Eight Presidents were army generals at some point prior to taking office. The first was George Washington. The most recent was Dwight D. Eisenhower.

[5] The last time Congress declared war was subsequent to the Japanese attack on Pearl Harbor commencing United States’ involvement in World War II. The constitutional requirement for Congressional declaration of war has not prevented Presidents from using the Armed Forces to fight wars in Korea, Vietnam, Iraq (twice), Afghanistan, and use the military to achieve objectives on a number of other occasions.

[6] The grand jury has been described as both a shield and a sword. In the federal system, it is more the latter. It is a method of requiring individuals to appear and testify under oath, with few protections other than a right not to say anything that might be self-incriminating, and has often been abused in that regard. It is really not much of a shield. Grand juries generally do what the prosecutor wants. There is a saying among criminal defense lawyers that a grand jury will indict a ham sandwich if the prosecutors want it to. A timely article by Holman W. Jenkins, Jr. in the Wall Street Journal maintains that prosecutions are all political at least in part. July 3, 2021, p. A13. (The day before this essay was posted.)

[7] David Ammerman, “The Tea Crisis and its Consequences, through 1775” Greene, Jack P.; Pole, J. R. (eds.). The Blackwell Encyclopedia of the American Revolution.

One comment on “245 Years and Counting

  1. Joe Ptak says:

    Bob–Your comments about grand juries are spot on. I was once appointed as the foreman of a federal grand jury. In practice, the only distinction between me and the other jurors was that I sat in the front by myself and I called for the votes. I recall that it seemed as though the first self-assigned duty of each prosecutor was to sell him/her-self to the jury with folksy talk and a joke or two. Then each case was presented and, as best as I can recall, each indictment was approved with no dissenting votes

    I have said many times that if one was inclined to commit a federal crime, a good preparation would be to sit on a federal grand jury. You would at least learn some tricks of the trade and you would learn to avoid many of the causes for others being caught and prosecuted!–Cousin Joe

    Like

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