Remembering our Constitution and Founding Fathers

By Fred M. Mester

(This past Wednesday, September 17, 2014 marked the 227th anniversary of the signing of the United States Constitution. We also celebrate this month the 200th anniversary of the Star Spangled Banner.  I have been requested by different groups to speak about the Constitution this week and thought I'd share with you my Constitution Day speech.)

As we commence this celebration of the anniversary of our founding as a Constitutional Republic, some background would be helpful.

I have the pleasure of focusing on four areas of concern:

First, what caused the founding fathers to initiate this Constitution Convention?

Second, what historical and philosophical background enabled them to debate, write and resolve a Constitution that would be the hope of freedom for all peoples?

Third, what were the major questions facing the delegates to the Constitution Convention?

Fourth, why a Bill of Rights and what are those Rights?

1. On the why the Constitutional Convention? Hadn’t we severed our ties with England through the Declaration of Independence, the Revolutionary War and the 13 States agreeing to associate through the Articles of Confederation?  The Revolution freed Americans from the bondage of Britain’s colonial rule, but the liberation was not complete.

First, in understanding the context which set the stage for the Constitution Convention, we have to look at what was happening in the 13 States that formed the Confederation.

These Articles were to govern the Association of these United States.  They could not.

On the first day of the Convention, Edmund Randolph, the 35-yeat old governor of Virginia, enumerated the Articles of the Confederation defects.

• One branch of government- no checks and balances.
• Major issues required a super majority.
• No changes without unanimous consent.
• No protection against foreign invasion.
• Congress could not check the quarrels between the States, nor a     rebellion.
• There was no power to tax and therefore no way raise an army.

As a result—the Union under the Articles of Confederation began to fray at the edges—too weak to hold itself together.  Strains on the Union were growing.  Armed uprisings were occurring throughout the Colonies.

The 13 States were in disarray, quarreling with each other over trade, navigation and boundaries.

The British, Spanish and French were lurking in every direction, encouraging member States of the original 13 that this vision of a shining house on the hill for freedom was nothing more than a dream.

What kind of national government would it take to hold these 13 States together?

Which direction would the Founders go?

2. These questions lead us to the second area as to what was the Founders’ source of thought and experience to enable them to devise a Constitution that would answer these questions so that a nation that will endure?

The foundation for all of the debates and resolutions precedent to, during and in support of the Constitution had their basis in the cultures of the Hebrew, Greek and Roman.  Each, in their own way, contributed to who we are today.  The thoughts of the Hebrews, Greeks and Romans had a tremendous impact on English law and government, such as:

• The Torah, Law and Moral Base from the Hebrew culture;
• Representative Government, Equality, Philosophy of Government through noted Philosophers Plato, Socrates, and Aristotle from the Greek culture;
• Constitutional Government and Separation of Powers from the Roman culture.

British
A major event in English history that inspired our Founders was an event that occurred 799 years ago on a grassy plain between London and Windsor, at a little place called Runnymede where the barons decided it was time to call a wicked King, King John, and bring him down to size.  The resulting Magna Carta is the first effort of a people to engage a monarch to share his absolute power.

The Magna Carta ultimately became the Fundamental Charter of the people’s liberties and the basis of the English unwritten Constitution in the English people’s gradual struggle between democracy and absolutism.  Again, this historical memory was likewise in the Founder’s toolbox.

America
The Magna Carta was revisited by the Pilgrims at Plymouth Rock where these people who had traveled so far to escape religious persecution made an agreement as to how they should be governed, with rules that would ensure that individuality would not be stifled in the pursuit of security.  They ultimately called this agreement The Mayflower Compact and this was the beginning of the American experience of agreement in self-rule.

Along with the Hebrew, Greek, and Roman civilization were three great philosophers whose work had a great impact on the Founders.

First, was Marcus Tullius Cicero who became known as the architect of our Constitution.   Why would Cicero, who lived in 54 b.c., have such an influence?

Because the defining characteristics of modern law and government include:  1) the appeal to reason, 2)  the limitation of power, and 3) commitment to the welfare of the people as a whole. All three were espoused by Cicero in his views and writings.

Second was Adam Smith who wrote “the wealth of nations” arguing that economic growth occurs where government allows each individual to follow his own interests.  Though each individual will pursue his own economic goals, out of everyone’s combined pursuit of their private interest comes the common good.

Third, and most pivotal, was John Locke. John Locke said every community is faced with two dangers—anarchy and despotism.  He argued for a government to incorporate the two principles: The Doctrine of Separation of Powers, and of Checks and Balances to avoid such dangers.

Armed with the theories of Locke, Smith and Cicero and with the knowledge of history, man’s experience with governing himself, then being governed by others and the acknowledgement of the need to protect individual rights, the framework of a workable government was established.

Third area, as the delegates entered Philadelphia; they were faced with several concerns that would be with the delegates throughout their deliberation and resolution.

First, what kind of government do we want?  Monarchy, Democracy, Republic?  Do we want one Legislature or two?  Do we want a strong Executive or one that will be directed through the Legislature?  Would the Courts be a part of the Executive or Legislative branch or independent of each?  How do we protect the judiciary from politics?

Second, the individual’s inalienable rights—should we integrate these in the Constitution or should they be set out in a separate document?

Third, the treatment of slavery became the greatest source of conflict.  At the time of the Constitutional Convention, slavery existed in nearly all of the States and had existed since they were founded.

But the Founders believed that slavery was on the path of extinction.

Several delegates argued for the Constitution to declare the abolition of slavery while others argued that there must be no attempt to interfere with slavery or any opportunity for a United Country would dissolve.

How did the Founders deal with these questions and still become the “miracle of Philadelphia?”

The stage was set.  What kind of government would these United States have, if any, and what would its future hold?  Benjamin Franklin addressed that latter question at the last session, when he commented that he had long watched the carving of a half circle on the back of the presiding officer’s, (George Washington) chair, was it, he asked himself, a rising or setting sun?

With the signing of the Constitution, Franklin said that he was now sure “I have the happiness to know that it is a rising and not a setting sun.” When a woman asked him what kind of government he and his fellow delegates had given them, Dr. Franklin replied: “a Republic, if you can keep it.”

3. Fourth area—why a Bill of Rights and what are they?

Many who left Philadelphia that September, so long ago, had reservations about whether the vision they had at the start of the Convention had been met.  That vision was of a Civilization where the structure of government would enable the individual to grow to his or her full potential in freedom.

To understand the genesis of the 464 words that constitute the Bill of Rights, we must first examine the context in which it was developed.  Though there were certain Rights protected in the Constitution, such as trial by jury, protection of Habeas Corpus, prohibition of Writs of Attainment, and Expost Facto laws; certain precious inalienable rights received no guarantee in the Constitution.

There was no guarantee of such liberties in the Constitution.  Thus, the proposed Constitution signed in Philadelphia on September 17, 1787, was not greeted with unanimous enthusiasm by all citizens of the young Republic.

Thomas Jefferson, writing from his post in Paris, France to James Madison, in 1787, in reviewing the Constitution wrote:  “I will now add what I do not like.  First, the omission of a Bill of Rights—let me add that a Bill of Rights is what the people are entitled to against every government on earth.”

With such concern and pressure, the 1st Congress led by James Madison wrote and adapted a proposed Bill of Rights that was ratified by the several States.  On December 15, 1791.  The title of “father of the Bill of Rights” was added to James Madison’s earlier recognition as “father of the Constitution.”

What are the main features of the Bill of Rights?
No provision of the Constitution and its Amendments has created greater challenges for the Judicial Branch or produced more highly visible cases, than the 1st Amendment, which expressly limits the power of the legislative branch to make laws respecting an establishment of religion or the free exercise thereof, abridging the freedom of speech, the
press, or the right peacefully to assemble, and to petition the government for redress of grievances.

When a person ignites an American flag as a public political expression, the fundamental Constitutional issue becomes clearer.  As Voltaire stated, “I disapprove of what you say but I will defend to the death your right to say it.”

It is doubtful that a democracy could be supported without freedom of speech and the press and the right to assemble and complain about the government and to be able to petition to redress grievances.

“A well-regulated militia being necessary to the security of a free state,” the 2nd Amendment gives the people the right to “keep and bear arms.”

The 3rd Amendment prohibits the quartering of soldiers in our houses except in time of war.

The reasoning behind the 2nd and 3rd Amendments is the ancient fear of being disarmed and helpless before standing professional armies.

The 4th Amendment was born of another specific abuse during colonial times.  It’s the “my home is my castle” Amendment.   “The right of the people to be secure in their persons, houses, papers and edicts, against unreasonable searches and seizures shall not be violated…”

If a police officer looks through your pockets. Taking your blood and urine or wiretapping you, you have been “searched” within the meaning of the 4th Amendment.

The most basic aspect of a traditional 4th Amendment search is that it must be pursuant to a warrant that is based on “probable cause” and describes with particularity “the place to be searched, and the persons or things to be seized.”  The person who makes these determinations must be a neutral and detached magistrate, “not the police officer who is in the business of ferreting out crime.”

The 4th Amendment provides a foundation for the 1st Amendment in that if you can’t have ownership of your own person, your own body or real or personal property; the rights of the 1st Amendment are shallow and meaningless. 

The 5th Amendment recites essential guarantees against abusive criminal procedure; first, the government cannot prosecute you for a serious crime unless a jury of your peers has received evidence sufficient to indicate that you really appeared to have committed such a crime.

Second, if I have been tried once for an offense I cannot again be “put in jeopardy of life and limb” on the same charge; the government may not persecute me by trying me again and again on the same grounds.

Nor, third, may I be compelled to be a witness against myself.  This means that I may refuse to take the witness stand.

In the 5th Amendment, there is a provision which has constantly plagues the courts.  I may not be “deprived of life, liberty or property, without Due Process of law.”  That term, “Due Process of Law” is one of the most important of our Constitutional protections and one of the most contentiously litigated.

The essential purpose of the Due Process clause is to prevent government from acting arbitrarily.

One further right is franked by the 5th Amendment.  Private property may not be taken for any public purpose “without just compensation.”

The 6th Amendment goes on with one’s right in a criminal prosecution—if one is prosecuted, they are guaranteed the following rights:

1. speedy trial
2. public trial
3. impartial jury
4. The person charged must be informed of the nature and cause of the accusation against him.
5. The right to confront the witness against him through cross-examination in effort to break down their testimony or show it to have been false.
6. The government must grant the accused the means of compelling witnesses who might testify on his behalf to attend the trial.
7. The person charged is entitled to have assistance of counsel.

The 7th Amendment guarantees a jury trial in civil cases.

The 8th Amendment skips back to criminal procedure and prohibits excessive bail, a measure calculated to prevent the government from holding a citizen in custody unfairly.  It
also prevents “Cruel and Inhumane punishment”.

The 9th and 10th Amendments are catch-alls, assuring the people that if any of the personal rights have been omitted from the Constitution, they shall not be deemed to have been denied or limited.

Yet, as we are reminded of the great men – the Founders and the Framers, their influences and contribution to forming the government we live under today, we should note that each decade or generation has within them the men, women, and spirit that reaffirm the Founders’ dedication to freedom and to our nation.  Take for instance the story of Sgt. Lindell O. Aldridge, as shared with me by his daughter, Charlene Aldridge Bienastock – who also happens to work within our law profession as a legal secretary.

Aldridge was seventh of nine children born in and raised in Ripley County, Missouri.

He enlisted in the Army in 1940, became one of only 600 to be one of Darby’s Rangers and only one of a handful to have survived their Battle of Cisterna.  He then joined the First Special Services Force, known as the “Devil’s Brigade” on the Anzio Beachhead. They were one of the most fierce combat units of World War II – feared and respected by the enemy.  They lost many men but never lost a battle.  Their unconquerable spirit in the face of overwhelming odds gave truth and credence to the country’s optimism that, even in the darkest of days, we would triumph.

Nearly 71 years later on July 12, 2013 – the date this Special Force was activated – The Congressional Gold Medal was granted to men serving in this unit in recognition of their fierce resolve to protect and defend the liberties we hold so dear – those found and espoused within our Constitution.  Without regard to their own personal situation, they answered a call to serve and sacrifice on behalf of our Country.

As we review the inspiring words of the Founders set out in the documents of freedom, the Declaration of Independence, the Constitution and the Bill of Rights, we should not forget that America has succeeded because in the words of the great jurist and scholar, Learned Hand:

Liberty lies in hearts of men and women;
When it dies there, no Constitution, no law,
no court can save it.

No Constitution, no law, no court
can even do much to help it.   

While it lies there it needs
no Constitutions, no law,
and no court to save it.
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Fred M. Mester is a former Oakland County Circuit Court judge and a former prosecutor.