INTERPOSITION: The Duty to Say “NO!”

NO - Just say NO (signs)

by Diane Rufino, January 25, 2018

The word Interposition means “to place between; cause to intervene.” In the context of the Constitution and the system of government it has established in this country, interposition is the doctrine that says that an individual State may oppose any federal action it believes encroaches on its sovereignty. It is a doctrine tied to the Tenth Amendment. The Tenth Amendment, as we all know, is a restatement of the fact that government power is split between two sovereigns, the federal government and the individual States. The Constitution establishes a horizontal separation of powers between the executive, legislative, and judicial branches at the federal level. By the very nature of its limited grants of delegated powers to those branches, the Constitution also establishes a vertical separation of powers between the federal government and the State governments. By “vertical,” we mean that the federal and State governments are co-equal sovereigns. The Tenth Amendment is a restatement of the fact that the Union is not a consolidated one with unlimited power at the federal level but rather a federation of sovereign states with most of the day-to-day running of people’s lives and governing of communities being reserved to the States and the powers to regulate for safety and security, immigration, commerce, and currency being delegated to the common government. Dual Sovereignty. The Tenth Amendment, quite simply, reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.”

Since the Tenth Amendment cannot enforce itself, interposition is one of the doctrines that allows the States and the People to stand up for the rights that are reserved to them.  Right now, the federal government has a monopoly over the meaning and scope of its powers. Congress makes the laws, the president signs the laws and enforces then, and the courts review them for constitutionality.  It wasn’t always this way. The federal courts were originally only supposed to render an “opinion” to the other branches. They were to take that opinion under advisement and amend the particular law or alter their conduct. The “check” that the “opinion” offered was that it was public; once the States found out the opinion, as sovereigns and as the co-parties to the compact known as the US Constitution, they always had the option to nullify and refuse to enforce a law or policy that the court deemed as unconstitutional. But the judicial branch made sure that its power was much more substantial than rendering a mere opinion. The federal monopoly was established when Chief Justice John Marshall handed down the Marbury v. Madison opinion in 1803.  Essentially the decision asserts that the Supreme Court is the tribunal tasked with interpreting the Constitution and as such, it’s “opinions” are not really “opinions” at all but binding decisions. Whatever the men in robes decide is the meaning and the intent of the Constitution IS the meaning and intent and its decisions are final and binding.

But rights and liberties are never secure when men and women have the power to interpret while also being motivated by political opinions, personal passions, etc. The Tenth Amendment MUST not be left to the federal government monopoly to ignore or re-interpret as it sees fit.

The remedy always available to those who hold the reserved powers is interposition – to recognize that certain acts are unconstitutional and exceed delegated powers (and hence are null and void and legally unenforceable) and then to take the necessary steps to make sure that they are NOT enforced. To allow them to be enforced is allowing government usurpation.

I. Interposition: Its Roots in the Magna Carta –

Interposition is a doctrine that the federal government abhors. Arizona tried to interpose in 2010 or so when it was fed up with the fact that the Obama administration refused to enforce immigration laws and the State was being overly burdened by illegal immigration. It passed a law giving its state law enforcement powers to determine which immigrants were undocumented and to require employers to do the same in the hiring process (e-verify). The Arizona legislature and Governor Jan Brewer interposed for the benefit of their citizens and for the proper functioning of the State. Quickly, however, Obama sued the State. How dare it interpose.

Where did this doctrine come from???

It has its roots in the Great English Charter itself – the Magna Carta, signed in the year 1215 by King John to formally recognize the “rights” recognized by ancient tradition and custom of the barons and other lower-class Englishmen. (Remember, this was Medieval England, the era of serfdom)

At the end of the Charter, the English barons included a section providing for the enforcement of its provisions. Section 61 read:

“Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us.”

Put simply, Section 61 established a representative group of 25 barons, to be selected as they see fit, who would be tasked with the responsibility of making sure that the promises made by King John when he signed the Charter are kept, even at the point of rebellion against him. This group of 25 “shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter.”

In other words, because the King may eventually ignore the promises he made, those who hold the rights and liberties have the right to decide when they’ve violated and then to take any and all steps to make sure that such violation is remedied.

I would argue that inherent in any compact that protects individual rights is the right of those who hold those rights to decide when they’ve been violated and then to take any and all steps to make sure that such violation is remedied.

I would also argue that in any social compact where government power is delegated and powers are reserved, that each party (the one receiving the delegated power and the ones holing the reserved powers) has the right to prevent the other from taking what is legally theirs. This doctrine therefore applies to the Constitution, itself being a social compact.

How did the Magna Carta come about?

II. The History – The Meeting at Runnymede and The Story of King John and the Magna Carta [Constitutional Rights Foundation, 2001. Referenced at: http://www.crf-usa.org/foundations-of-our-constitution/magna-carta.html ]

A. Who Was King John?

Myth and history are intertwined in the England of 800 years ago. We all remember the outlaw, Robin Hood. From his hideout in Sherwood Forest, he and his band of Merry Men preyed on the rich and gave to the poor. Their archenemy was the Sheriff of Nottingham, who took his orders from the sinister Prince John. While Robin Hood never existed, John certainly did. He was the central character in a real life drama that led to a milestone in human liberty: Magna Carta. Prince John’s older brother, Richard, became king of England when their father, Henry II, died in 1189. King Richard I (also called Richard the Lionhearted) spent almost the entire 10 years of his reign away from England. He fought in tournaments, led crusades and waged several wars on the continent of Europe.

Since Richard needed revenue to pay for his adventures, he taxed his subjects heavily. At one point Richard was captured by his enemies and held for ransom (a common practice in feudal Europe). Richard’s tax collectors in England had to raise an enormous sum of money to free him. Despite Richard’s demands, the people back home in England loved him as a conquering hero.

When Richard died in 1199, John became King. Unlike his brother, John tended to stay at home and run his kingdom on a day to day basis. John, however, continued his brother’s harsh tax policy. Because John lacked Richard’s heroic image and charisma, his subjects began to hate him for his constant demands for more tax money

B. King John vs. The Church –

King John made more enemies when he refused to accept the appointment of Stephen Langton as Archbishop of Canterbury, the most important position in the English Catholic Church. By so doing, John challenged the authority of Pope Innocent III in Rome, who punished John by excommunication. John retaliated by taxing the Church in England, confiscating its lands and forcing many priests to leave their parishes.

While King John carried on his dispute with the Pope, powerful English landowners called barons conspired against him. Fuming over John’s heavy taxes and other abuses of power, the barons plotted rebellion. To head them off, King John made an unexpected move.

In 1212, King John agreed to have Stephen Langton become Archbishop of Canterbury. John also promised to compensate the Church for its money and lands. John even went so far as to make England a fief of the Pope. King John still ruled England, but, as John’s liege lord, the Pope gained tremendous prestige throughout Europe. Pope Innocent was delighted and in 1213 ended John’s excommunication. With John now under the protection of the Church, the resentful barons retreated—at least for a while.

C. King John vs. the Barons —

Convinced that his throne was again safe, King John returned to one of his favorite projects. For years he had dreamed to retake possession of lands in France that had once belonged to his ancestors. Once before, John had led a military expedition to France. Although he won a number of battles, John failed to decisively defeat the French king. Now, in 1213, John planned another campaign.

An invasion of France required many soldiers and more money. Under feudal law, a liege lord had the right to call upon his vassals to provide knights or money during times of war. From the English barons, all vassals of King John, he demanded men-at-arms or gold to support his new French war. Many of the barons refused, having little interest in John’s quarrel with the French king. Enraged, King John set out to punish them by attacking their castles.

Early in 1214, he abandoned his domestic quarrels and left with a force of loyal barons and mercenaries (paid soldiers) for France. History repeated itself. John succeeded in winning some battles, but failed to gain control of the disputed lands.

D. The Road to Runnymede —

Soon after returning to English soil in October 1214, King John resumed his demand for money from the rebellious barons. His demands fell on deaf ears. Sensing John’s weakness after his failure in France, the barons began to make their own demands. In January 1215, a group of them appeared before King John asking for a written charter from him confirming ancient liberties granted by earlier kings of England. Evidence suggests that the newly appointed Archbishop Stephen Langton may have encouraged these demands.

John decided to stall for time; he would give the barons an answer later in the spring. In the meantime, John sent letters to enlist the support of Pope Innocent III, and also began to assemble a mercenary army.

In April, the barons presented John with more specific demands. John flatly rejected them. He remarked: “Why do not the barons, with these unjust exactions, ask my kingdom?”

In response, the barons withdrew their allegiance to King John, and started to form their own rebel army. At the head of the rebel forces was Robert FitzWalter, who called himself “Marshal of the army of God and Holy Church.” In an effort to cool things off, John proposed that the Pope settle their differences. With the Pope openly siding with King John, the barons refused. John ordered his sheriffs to crush the rebel barons and they retaliated by occupying London.

A stalemate ensued. The 40 or so rebel barons and their forces held London as well as their own fortified castles throughout England. King John commanded a slightly smaller force of loyalist barons and mercenaries. Unaligned were about 100 barons plus a group of church leaders headed by the ever-present Archbishop Stephen Langton. Langton (who was sympathetic to the rebels if not one himself) began to work for a negotiated settlement to prevent all-out civil war and arranged a meeting to be held at Runnymede, a meadow on the Thames west of London.

E. Meeting at Runnymede —

King John and his supporters, the rebel barons, the neutrals, church leaders and Archbishop Langton all met at Runnymede on June 15, 1215. Actually, the Charter was negotiated at Runnymede between 10 and 15 June 1215, with King John riding down each day from Windsor, and the barons encamped in their tents across the meadows beside the Thames. Significantly, while most of King John’s fighting men were scattered throughout his kingdom, the rebels appeared at full military strength.

Little is known about the details of this historic meeting, but we do know that King John placed his seal of approval on a document called the “Articles of the Barons.” Over the next few days these articles were rewritten, expanded, and put into the legal language of a royal charter. At some point, probably on June 19, King John put his seal on the final draft of what we call today “Magna Carta” or “The Great Charter.” In exchange, the rebellious barons renewed their oath of allegiance to King John, thus ending the immediate threat of civil war.

With the document, the nobles compelled John to execute this recognition of rights for both noblemen and ordinary Englishmen. The Charter begins with Article 1, which, besides asserting that “the English Church shall be free,” also states: “We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.” Besides recognizing the right of the church to be free from governmental interference, the Magna Carta also recognized the rights of all free citizens to own and inherit property and to be protected from excessive taxes through representation in a “common counsel.” It established the principles of due process and equality before the law, the right to a jury of one’s peers, and the right of widows who owned property to choose not to remarry. It also contained provisions forbidding bribery and official misconduct.

And, as mentioned earlier, it included an enforcement provision: Section 61 read: “61. Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us.

Tricky to the end, however, King John left off the names of the 25 barons who were to be tasked with the enforcement of the charter’s terms. By doing so, John intended to downplay the enforcement provision and in general hoped the Charter would become no more than a toothless symbol of his generosity to the kingdom.

Magna Carta of 1215 was not really intended to be a list of rights for Englishmen or even the barons themselves. It was more like a contract in which John bound himself to abide by its provisions. The barons only wanted King John to satisfy their complaints against his abusive rule, not overthrow the monarchy. The real significance of this document lies in the basic idea that a ruler, just like everyone else, is subject to the rule of law. When King John agreed to Magna Carta, he admitted that the law was above the king’s will, a revolutionary idea in 1215.

F. Aftermath —

King John surrendered significant power when he agreed to Magna Carta. It is doubtful that he really ever intended to live up to all his promises. Certainly, the barons hoped that its terms would be rigorously enforced. While John did satisfy some of the barons’ personal grievances, he secretly wrote the Pope asking him to cancel Magna Carta on the grounds that he signed it against his will. At the same time he continued to build up his mercenary army. Not trusting John’s intentions, the rebel barons held on to London and maintained their own army.

Pope Innocent III replied favorably to King John’s appeal. He condemned Magna Carta and declared it null and void. By September 1215, King John and his army were roving the countryside attacking the castles of individual barons, but he avoided the rebel stronghold of London. The barons charged that King John had defaulted on his agreement with them and they were justified in removing him from the throne. They offered the throne to the son of the French king, if he would aid their rebellion.

A long and bloody civil war loomed across England, when suddenly, King John died. A round of heavy eating and drinking apparently led to a case of dysentery causing his death on October 18, 1216. Ten days later John’s nine-year-old son, Henry, was crowned as the new king of England. With John out of the way, the conflict gradually ceased. Less than a month after Henry was crowned, his supporters confirmed Magna Carta in his name. This time it received the approval of the Pope.

Magna Carta, carrying with it the idea of “the rule of law,” was reconfirmed a number of times over the next 80 years, becoming a foundation of English law. Eventually, Magna Carta would become the source of important legal concepts found in our American Constitution and Bill of Rights. Among these are the principle of no taxation without representation and the right to a fair trial under law. These foundations of our own constitutional system had their beginnings in a meadow beside a river almost 800 years ago.

III. CONCLUSION

As I hope you all remember from school, the Magna Carta was a crucial turning point in the struggle to establish freedom and recognize individual rights. The ancient laws and customs by which England had been governed, and which had been abused by the King, were enumerated most clearly and explicitly on its parchment. His signature, his assent, was demanded by those who refused to be mistreated any longer by him. These ancient laws and customs, defended strongly by those who believed were not to be transgressed by the King, would eventually be thought of as human rights.

The next recorded milestone in the development of these “human rights” would be the Petition of Right, drafted in 1628 by the English Parliament and sent to Charles I as a statement of civil liberties and a reminder of the obligation of Kings to recognize that the throne is not above the law. (See my recent article “The English Roots of American Liberty,” January 20, 2018)

Winston Churchill once admonished the free world to learn to pronounce the word “No.” Summoning the wisdom of Alexander the Great, Churchill, in the face of Nazi aggression, challenged the free world to muster the courage to tell Hitler “no.” In his famous October 16, 1938, broadcast to the United States and England, termed “The Defense of Freedom and Peace: The Lights are Going Out”, Churchill reflected: “Alexander the Great remarked that the people of Asia were slaves because they had not learned to pronounce the word ‘No.’ Let that not be the epitaph of the English-speaking peoples or of Parliamentary democracy, or of France, or of the many surviving liberal States of Europe.”

If we don’t learn to say “NO,” then it may also become the epitaph of the United States.

It takes courage to stand up against a person or a body having great power. It often comes at some personal sacrifice. Our challenge is to stand up as a people, and as individual States, to the government officials, the government bodies, and yes, even federal judges who are violating, ignoring, eroding, or otherwise re-interpreting the Constitution our Bill of Rights. Each unconstitutional act usurps the powers delegated or reserved to the People and the States. Nature’s Law supersedes man’s law. Every failure to resist the tyranny posed by an unconstitutional act tightens the noose around freedom’s neck.

References:
The Magna Carta – http://www.constitution.org/eng/magnacar.htm

“The Meeting at Runnymede: The Story of King John and Magna Carta,” 2001, Constitutional Rights Foundation, 601 South Kinglsey Drive, Los Angeles, CA 90005. Referenced at: http://www.crf-usa.org/foundations-of-our-constitution/magna-carta.html [Section II, Parts A, B, C, D,, and F are taken directly from this source. Only a part of Section E comes this source].

Diane Rufino, “The English Roots of American Liberty,” For Love of God and Country (Diane’s blog), January 20, 2018. Referenced at: https://forloveofgodandcountry.com/2018/01/24/the-english-roots-of-american-liberty/

Jason K. Allen, “Pronouncing the Word ‘No’: The Most Important Lesson I Learned from Al Mohler,” Jason Kallen’s Blog, Nov. 9, 2015. Referenced at: https://jasonkallen.com/2015/11/pronouncing-the-word-no/

The English Roots of American Liberty

MAGNA CARTA - King John signing

by DIane Rufino, January 20, 2018

From the Declaration and Resolves (petition to King Charles listing the colonies’ grievances against the King and Parliament), the Declaration of Independence, to the Bill of Rights / Declaration of Rights adopted by the individual states, to the US Constitution, and to the US Bill of Rights, the Founding Fathers looked to English history for the words and templates to navigate the colonies towards independence and then into a republic. They reflected on the abuses of the Kings and the compacts demanded by the people to check those abuses, as well as the Enlightenment era philosophy on government in building a lasting republic. It is said that our Founding Fathers were wise and extremely well-read, but moreso, they were keenly aware of England’s history, which was, of course, also the history of the American colonies.

The colonists certainly embraced the liberty they found in the American colonies and the chance they had to self-govern as they saw fit. They worshipped according to their conscience, they engaged in trade freely, and they established their own colonial governments. But then they began to see that new-found liberty in jeopardy. The historic abuses of the English monarchy on its subjects now turned to the colonies. The colonists were taxed without their representation in Parliament (a right listed in the Magna Carta and English Bill of Rights of 1689), their trade interfered with (Tea Act), their colonial assemblies suspended (violation of their colonial charters), they had standing armies kept among them (in violation of the English Bill of Rights), they were forced to quarter troops (in violation of the Petition of Right of 1628 and English Bill of Rights), and their firearms and ammunition were confiscated (in violation of the English Bill of Rights). And when they protested and remonstrated these violations of their rights as English subjects, as those of centuries earlier had done, King Charles III ignored and mocked them. To the King, the colonists were crude, almost laughable in their simpler ways. He accused them of acting like petulant children and essentially being bothersome. He did not answer their written complaints, nor was swayed when they pleaded to him, “as loyal subjects,” to please intervene on their behalf to Parliament (for such things as the Intolerable Acts). By 1774, the King had had enough of them and accused them of being in active rebellion against Great Britain. All the colonists wanted was to have their rights respected. [Watch the DVD Set “Liberty – The American Revolution” (PBS) to feel the frustration the colonists felt in the years leading up to the American Revolution].

The question was this: How would the colonists respond?

Well, we know how they responded. Looking at the totality of the situation (“The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States…”), the colonists, assembled in the Second Continental Congress, felt it had no other meaningful course but to seek its independence. In asserting what they believed was their natural right of self-determination and right of self-governance, they took a cue from their English roots (the Grand Remonstrance of 1640) and set forth a list of grievances against the King. In the Declaration of Independence, they listed 27 grievances – abuses of their rights – which, as the colonies declared, justified their separation from Great Britain.

When the fighting began the colonies weren’t seeking their independence; they were merely rebelling against tyranny. But North Carolina and then Virginia, and then others, began to call for independence, and on July 2, 1776, the resolution declaring independence was adopted and on July 4, Jefferson’s formal Declaration was issued – “to a candid world. The rebellion turned into a war for independence. Luckily, trust in George Washington paid off and friendship with France paid off as well. After our victory at Saratoga, France sent troops and its naval forces. British General Cornwallis surrendered at Yorktown, VA on October 19, 1781 and on September 3, 1783, representatives of King George III of Great Britain and representatives of the United States of America signed the Treaty of Paris to officially end the American Revolutionary War. Article I of the Treaty read: “His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states…” The colonies were free.

But then next question was perhaps more important: How would they secure the liberty and individual rights they had just fought for? What kind of government system would best suit that goal?

Luckily our Founding Fathers were students of history and philosophy. They studied the Greek and Roman republics and knew what made them great and what led to their demise. They knew the history of England – a monarchy – and knew that although the great charters of liberty were written by the English to limit the conduct of the King and then to include Parliament, they also knew that those protections often went unnoticed. There were several attempts in England’s history to limit (forever) the rights of kings to place themselves above the law, but in some cases, the king took the “Divine Right of Kings” doctrine far too seriously. The Divine Right of Kings was the political/ religious doctrine in England that asserted that a monarch is subject to no earthly authority, deriving the right to rule directly from the will of God. Indeed, the history of England was a series of repeated events – abuses of the King over his subjects followed by a charter or petition demanding that their rights be acknowledged and that the King recognize limits to his power, followed by periods where the King or Kings ignored the charter/petition and subjects were again abused, followed by another petition, etc. For example, King John (1199-1216) signed the Magna Carta in 1215 after his barons took up arms against him, but almost immediately, he broke those promises. In 1928, Parliament presented King Charles I with the Petition of Right, complaining of a series of breaches of law and the Great Charter (Magna Carta) he had committed. The violations were of four general types – unfair and illegal taxation, as well as imposing taxes without the action of Parliament, many due process violations, including imprisonment without cause, quartering of soldiers on subjects, and imposing martial law in peacetime. The remainder of his reign would be marked with such extreme abuses that he would eventually be brought to trial and executed. James II, his son, would be another abusive king. With James II, the people (and Parliament) had had finally enough. He was removed by a bloodless revolution and the new King and Queen, William and Mary (Mary being James II’s daughter) signed the English Bill of Rights in 1689. Drafted by Parliament, the Bill of Rights officially set limits to the right of kings to put themselves above the law. The statute which offered the throne to William and Mary legally conditioned their rule on signing and respecting it. And subsequent kings would thus be limited as well.

All of our Founding Fathers knew that history very well. Again, England’s history was the history of the American colonies. But it was, after all, a monarchy. And a monarchy, as shown, was incapable of truly securing the inalienable rights of the individual. A democratic form of government would work either. True democracy is mob rule. It is always a rule by the majority. It could easily be tyranny by the majority.

In drafting the Constitution, which created our system of government here in the United States, our founders decided the best form of government would be a republic. Their study of history taught them that. As James Madison, author of the Constitution, wrote in Federalist No. 10: “Hence it is that democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and in general have been as short in their lives as they have been violent in their deaths … A republic, by which I mean a government in which a scheme of representation takes place, opens a different prospect and promises the cure for which we are seeking.”

Article IV Section 4, of the Constitution: “The United States shall guarantee to every State in this Union a Republican Form of government … ”

At the Philadelphia Convention in 1787, the task of the delegates was to design the new republic as wisely as possible. like what Dr. Joe Wolverton II wrote in a 2004 article for The New American: “They believed they could find the key to inoculating America against the diseases that infected and destroyed past societies. Indeed, it has been said that the Founders were coroners examining the lifeless bodies of the republics and democracies of the past, in order to avoid succumbing to the maladies that shortened their lives.”

The Constitution was signed by the delegates on September 17, 1787 and then it was sent to each state to be ratified or rejected. Several of the delegates were unhappy with the final draft because it did not include a Bill of Rights and some, including the powerful George Mason from Virginia, promised to try to defeat its ratification in the state conventions. (Patrick Henry planned to help Mason do so). Thomas Jefferson, the author of the Declaration of Independence, believed strongly that a Bill of Rights needed to be added, but Madison, author of the Constitution, did not. Jefferson wrote: “A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference.” States like Virginia and North Carolina and Rhode Island would not ratify unless a Bill of Rights was added, and New York was up in the air. Although it may have been likely that 9 states (as required by Article VII) would have ratified so that the Constitution would have done into effect, the states couldn’t imagine a union without the large powerful states of VA, NY, and NC. And so a deal was made with Madison at the VA Ratifying Convention. He would submit a Bill of Rights as amendments to the Constitution in the first session of the first US Congress. Madison was an honorable man. The rest is history.

Before the deal was made, however, Patrick Henry got up before the Convention to make the case that a Bill of Rights was necessary to secure the blessings of liberty from a government that (as history has always shown) will eventually become too powerful. He spoke these words: “Liberty, the greatest of all earthly blessing — give us that precious jewel, and you may take everything else!….. I say, the time has been when every pulse of my heart beat for American liberty, and which, I believe, had a counterpart in the breast of every true American.”

Madison introduced his proposed amendments to the Constitution (a Bill of Rights) to Congress on June 8, 1789, and after a committee put them in final form and Congress adopted them, they were sent to the states on September 25 for ratification. Out of the twelve proposed amendments, the states ratified ten. There are approximately 26 individual rights identified in the Bill of Rights (excluding the unenumerated possibilities in the Ninth Amendment). Of those 26 individual rights, 9 can be traced back to Magna Carta, 7 can be traced to the English Petition of Rights of 1628, and 6 can be traced to the English Bill of Rights of 1689.

I used to think our Founders were divinely inspired to write some of the documents that they wrote….. the words, the themes, the ballsy language. But when you go back and study England’s illustrious history and you read the great charters and documents of liberty – the 1100 Charter of Liberties, the Magna Carta (1215), the Petition of Rights (1628), the Grand Remonstrance (1641), and the English Bill of Rights of 1689 – you realize that our Founders had all the templates they needed. In many cases, they followed in the very footsteps of their forefathers – English subjects – who petitioned every hundred years or more for their rights and for the King to limit his jurisdiction over their lives. For example, the Grand Remonstrance listed a series of grievances against Charles I, from the beginning of his reign, explaining why he needed to answer for his actions. In drafting the Declarations & Resolves of Oct. 14, 1774 (series of petitions and resolutions to King Charles I and Parliament in response to the Intolerable Acts), the First Continental Congress adopted the same petition formats that the English used to their King to petition for the rights that were being violated. In drafting the formal Declaration of Independence, Thomas Jefferson used the same format in order to condemn King Charles III and to make the case to a candid world why the people of the American colonies were seeking their political and legal separation from Great Britain. And so history lessons like this are so important because they serve to remind us that our system rests on a very distinguished history of standing up for liberty against tyranny and that the principles embedded in our documents are ones designed to withstand the abuses of those in power, in any branch. And that is why it is so important that those principles should not be taken for granted, maligned just because our fore-fathers were products of another era, or happened to own slaves or represented social norms of the day or happened to sneeze the wrong way, or “legislated” away from the bench by activist judges. Charles I was a miserable, ambitious King who, perhaps more than any other King of England, embraced the notion of the Divine Right of Kings and hid behind the artificial status it created. He quarreled with Parliament (the people’s body established by the Magna Carta to give them representation when it came to taxation) over taxes. He wanted more and more to finance his endless wars. When Parliament wouldn’t give him the funds he demanded, he merely dissolved the body. He did so three times from 1625-1629. When he dissolved Parliament in 1629, he resolved to rule alone and to get the money he needed. And so he raised revenue through non-Parliamentary means – including Ship Money (taxing those who lived along the coast). Most of these things helped to lead to his demise, which followed after he waged a civil war on Parliament itself, which he lost. Charles was tried, convicted, and executed for high treason by (a rump) Parliament in January 1649. He was beheaded. I point to Charles I because he was so abusive and dismissive of the rights of the people that the damage he did signaled the end of British system. After he was executed, Oliver Cromwell served as Lord Protector over England until his death in 1658. The monarchy was restored two years later, at which time, Charles II took the throne. He ruled until 1685 and when he died, his brother James II took the throne. He was deposed less than 3 years later. William and Mary were offered the throne and England got an official Bill of Rights at their coronation.

But one good thing came out of Charles’ reign. He cracked down quite heavily on the Puritans in England, and as a result, they emigrated (ultimately) to New England to found colonies based on religious liberty and eventually to establish the commonwealth of Massachusetts. The history of England is also one of religious tyranny and persecution, and no doubt provided the passion that certain Founders, such as Thomas Jefferson, had to secure religious freedom in the colonies.

England’s history is vital to our education because in her 600-year-or-so history, her people have stood up for their rights – rights they believed were fundamental and essential to their humanity and dignity – and in the end, their petitions, once merely requesting for the recognition of certain rights, became a Bill of Rights (1689), officially recognizing essential rights belonging to the individual that government was obligated to respect. While England does not have an official Constitution, per se, it considers a group of documents (including the English Bill of Rights) as being its “constitution” or governing document. But those documents, which represented the plight of the English for their rights to be free and to be free from government made it to the minds of our American Founders who then incorporated it into our nation’s founding documents. Our founding documents are superior to England’s because in this country, there is an “official” Constitution and an “official” Bill of Rights and both are predicated on something the English system is not – that government power originates from the individual. Those documents memorialize not only the formal recognition of inalienable individual rights, but they set important limits and boundaries on government. If you don’t think the English system of protest and petition didn’t work and if you don’t think it SHOULD be the model we embrace here – consider this: Each time the English people petitioned for their rights, those rights were enlarged, as mentioned above. Also consider this: The ability to have and bear arms originated as a “duty” in England, under the Militia laws. But after many years of the Crown confiscating guns and leaving England’s subjects undefended and vulnerable in the face of despotic Kings (willing to arrest and imprison them merely for political reasons or belonging to the wrong religion), that duty became a “right” in the English Bill of Rights. We have our Right to Have and Bear Arms (Second Amendment) because of the will and determination of the English people.

References:

“English and Colonial Roots of the US Bill of Rights – http://teachingamericanhistory.org/bor/roots-chart/

Virginia Ratifying Convention, Thursday, June 5, 1788 – http://www.constitution.org/rc/rat_va_04.htm

Federalist No. 6 (Alexander Hamilton), Avalon Project (Yale Law School) – http://avalon.law.yale.edu/18th_century/fed06.asp

“Liberty – The American Revolution” (3 disc, DVD set), PBS – https://shop.pbs.org/

The Petition of Right of 1628 – http://www.constitution.org/eng/petright.htm

The Grand Remonstrance of 1640 – http://www.constitution.org/eng/conpur043.htm

The English Bill of Rights of 1689 – http://avalon.law.yale.edu/17th_century/england.asp

Dr. Joe Wolverton II, “The Founding Fathers & the Classics,” The New American, September 20, 2004. Referenced at: https://21stcenturycicero.wordpress.com/tyrrany/the-founding-fathers-the-classics/