Ain't Nobody's Business If You Do

Our Constitution is
in actual operation;
everything appears to promise
that it will last;
but in this world
nothing is certain
but death and taxes.

BENJAMIN FRANKLIN

ALTHOUGH THE Declaration of Independence is not, like the Constitution, the "law of the land," it is certainly the spirit of the land. In the words of ABRAHAM LINCOLN,

The Declaration of Independence was not about just independence from England or even Europe - it was a declaration of independence from ignorance, religious intolerance, and political tyranny.

What we call the "Declaration of Independence" is officially "The Unanimous Declaration of the Thirteen United States of America." There is, by the way, no signed Declaration of Independence from July 4, 1776. The Declaration of Independence was approved by voice vote on July 2, 1776, and the parchment copy was signed by the first delegates on August 2, 1776. Other signatures rolled in throughout the year. (Thomas McKean did not sign until 1781.) The only reason we celebrate the Fourth of July is that both Thomas Jefferson and John Adams remembered it as the date of the signing. There is, however, no congressional record of a signing on that date. Were it not for Adams and Jefferson remembering its being on the fourth, the Fourth of July would either be the Second of July or the Second of August.

Nature intended me for the tranquil
pursuits of science, by rendering
them my supreme delight.
But the enormities of the times
in which I have lived
have forced me to commit myself
on the boisterous ocean
of political passions.

THOMAS JEFFERSON

That both men - first comrades, then political enemies, and finally friends - should misremember the day is part of one of those truth-is-stranger-than-fiction stories. In the early morning of July 4, 1826, Thomas Jefferson awoke and asked, "Is it the Fourth yet?" Told that it was, he quietly died. Five hours later, John Adams, not knowing of Jefferson's death, declared, "Thomas Jefferson still survives!" and died.

In his last letter, written ten days before his death, Jefferson gave his final thoughts on the Declaration of Independence:

The natural progress of things
is for liberty to yield
and governments to gain ground.

THOMAS JEFFERSON

Jefferson wrote into the Declaration of Independence one of the most brilliant definitions of freedom in history:

The self-evident truths announced
in the Declaration of Independence
are not truths at all,
if taken literally;
and the practical conclusions
contained in the same passage
of that Declaration prove
that they were never
designed to be so received.

WILLIAM PINKNEY

Inalienable rights, on the other hand, are rights that cannot be taken from you or transferred to another no matter what. These are the basic rights guaranteed to every citizen of the republic. What did our founding fathers consider to be our basic, inalienable rights? "Among these are Life, Liberty, and the pursuit of Happiness."

Life, liberty, and the pursuit of happiness cannot be taken from us; they are inalienable. Note that inalienable rights are not limited to life, liberty, and the pursuit of happiness: "among these are Life, Liberty, and the pursuit of Happiness" (emphasis added).

Life is obvious; it is our physical life. Liberty is the freedom to live that life the way we choose. The phrase the pursuit of happiness is so vague, so broad, and so far-reaching that it is revolutionary even today - perhaps especially today. It, of course, does not guarantee happiness; but it does give us the right to pursue happiness - whatever we think that may be, in whatever way we think will get us there.

Naturally, there are limits. My pursuit of happiness might include your new car. Does that mean that I, as a citizen, have a right to take your car? Of course not. Where should the limit be? As you already know, I propose the limits are the physical harming of another's person or property. As I'll attempt to show here and in other chapters, this is precisely the same limit that the founding fathers had in mind when they created our government.

I think your slogan
"Liberty or Death"
is splendid
and whichever one you decide on
will be all right with me.

ALEXANDER WOOLLCOTT

Before forming the government, however, there was a little business of a revolutionary war. King George III of England did not, after reading the Declaration of Independence, say, "Oh, they'd like their independence; I hope they enjoy it." No. England is not famous for letting her people go. Only Princess Di got away from the British crown without a fight.

Soon after the Declaration of Independence, the thirteen colonies of British America gathered together under the loosely stated Articles of Confederation - a document designed to last the duration of the war. All power was put in the hands of a Continental Congress. The Continental Congress had the dual disadvantage of being (a) a committee and (b) unable to tax. They had the power to "request" money from state legislatures, but, as you can imagine, such requests often went unheeded. Two important lessons were learned from the Continental Congress: (a) committees do not govern well, and (b) a government is no government without the power of taxation (or some other way to raise funds).

After the war, in the summer of 1787, a group of elected representatives was given the task of adapting the Articles of Confederation into a permanent document outlining an ongoing government for the Confederated States of America. This group of fifty-five delegates took to their task with rare enthusiasm. Some historians say they ignored their mandate entirely. (Jefferson, who was in France at the time, expressed concern that they "met in secret session.") The delegates threw out the Articles of Confederation entirely and began work on a new document, the Constitution of the United States of America. From that point on, the gathering of those fifty-five delegates was known as the Constitutional Convention.

There can be no prescription
old enough to supersede
the Law of Nature
and the grant of God Almighty,
who has given to all men
a natural right to be free, and they
have it ordinarily in their power
to make themselves so,
if they please.

JAMES OTIS

Although Jefferson was absent, many great men were in attendance. Jefferson called them an "assembly of demigods." Benjamin Franklin arrived each morning in a sedan chair carried through the streets of Philadelphia by convicts - he was eighty-one and suffered gout. Also present were future presidents John Adams and James Madison, as well as Alexander Hamilton who later, with Madison, "sold" the Constitution - and the concept of a strong federal government - to the citizenry in a series of eighty-five newspaper articles known as The Federalist. George Washington prepared for his role as the nation's first president by presiding over the convention.

The American Constitution,
one of the few modern political
documents drawn up by men
who were forced by the sternest
circumstances to think out
what they really had to face,
instead of chopping logic
in a university classroom.

GEORGE BERNARD SHAW

The major question facing the convention - and American politics at large - was how much power would remain at the state level, and how much would go to the federal government.

The federalists believed in a strong federal - that is, national - government. Without it, they argued, the thirteen colonies would become like the countries of Europe - eternally caught in the ritual of alliances, betrayals, intrigues, and hostilities that had marked the history of Europe for more than a thousand years. Further, Federalists argued, without a strong central government, each state would be ripe for individual plucking by the then-aggressively imperial powers of France, Spain, Russia, or a return engagement from Great Britain. Moreover, the federalists claimed, all the people of the colonies had pulled together and won a rousing victory for life, liberty, and the pursuit of happiness. These courageous souls were now one people; members of one country, a country that - united - defeated the strongest military power on earth. These people of one nation did not want to return to being citizens of individual states, states that - if history were any indicator - would be at each other's throats over borders, territorial rights, and tariffs within a matter of years. And if one state went to war against another, did one really want to fight brother against brother?

The anti-federalists held that states' rights were sovereign. Each state already had a constitution - or was busy working on one - which was to be the supreme law of the people within that state. Why couldn't the Confederated States get along as well as the Nordic countries, which were independently sovereign, lived together in peace, and banded together in time of war? This, the anti-federalists claimed, was what the Articles of Confederation were intended to do: form an alliance against Great Britain and nothing more. Once victorious, the states would return to the status quo. Oh, it might be nice, the anti-federalists acknowledged, to have some sort of central government, but it should be more a voluntary alliance, a forum in which sovereign states could meet and discuss treaties, national defense, trade, and the like. In this, the anti-federalists wanted something more along the lines of the current United Nations than the United States.

In a democracy, the opposition
is not only tolerated
as constitutional,
but must be maintained
because it is indispensable.

WALTER LIPPMANN

The federalists demanded a strong chief executive with sweeping powers. He (women were not allowed to vote, much less run for office) would be something of an emperor, but one chosen by the people in regular but widely spaced elections.

The anti-federalists thought that a simple amendment to the Articles of Confederation - something along the lines of "Resolved, that this document is null and void unless some country declares war on one of the states" - was all that was necessary. ("And can't we all go home now? It's Philadelphia and it's summer and it's hot.")

As in all politics, the final document was a compromise: there would be a strong federal government, but the power would be held jointly between three equal branches - the executive, the legislative, and the judicial. The Constitution, however, would be "the supreme law of the land," superseding all state constitutions and laws on certain specific points, but leaving the states free to legislate on matters not given to the federal government.

Overall, the Constitution of the United States is a federalist document. The federalist nature is evident in the first line. The original draft read, "We the people of the states of ..." and then listed each state. The revised document, the one we know today, begins, "We the People of the United States. ..."

We may be tossed
upon an ocean
where we can see no land - 
nor, perhaps, the sun or stars.
But there is a chart and
a compass for us to study,
to consult, and to obey.
That chart is
the Constitution.

DANIEL WEBSTER

Allow me to highlight certain portions of the Constitution that apply most directly to our discussion of consensual crimes.

The Constitution begins with the famous preamble, which lays out the purpose of the Constitution:

We the People ... Here, it's we the people; not we the Protestants, we the Catholics, or we the atheists, but we the people - all the people.

Compare this simple, direct, all-inclusive opening with a typical formal governmental document from the days of monarchy. The documents were always in the name of the monarch who ruled by the grace of God, and usually granted a privilege to some Special Class of Human Beings, or took some privilege away from one Special Class of Human Beings and gave it to an Even More Special Class of Human Beings. Take, for example, the opening of the Magna Carta:

I love my country.
I fear my government.

BUMPER STICKER

Note the delineation of power - the holy royal pecking order. We knew who was on first (God), who was on second (the king), who was on third (the archbishops). Somehow you knew that in a disagreement between, say, an archbishop and one of the "faithful people" (way, way down the list), the archbishop would win.

None of this nonsense opens the Constitution. In a government document at that time, it was radical not to mention the ruling monarch and downright revolutionary not to mention God. Even the individual states don't get special recognition. From the outset, it was a document without classes of people, with no highs, no lows, no one better or worse - it is a document of "We the People."

In Order to form a more perfect Union ... The intent was to form a union (a government) "more perfect" than had ever existed before. The imperfections (injustices) of other governments were well known and eloquently documented. The most obvious example of an imperfect union was the Inquisition. Like the Spanish flu, it was not limited to Spain. The Inquisition had been alternately smoldering and flaring since the late 1400s. Not only were heretics tortured and burned at the stake, but, when taken over by the government (as it soon was), the Inquisition was a tool of terror and oppression against anyone's actions, values, or ideas that irritated the rulers. (They still did all this, of course, in the name of God.)

If there is any principle
of the Constitution
that more imperatively calls
for attachment than any other
it is the principle of free thought - 
not free thought for those
who agree with us
but freedom for the thought
that we hate.

JUSTICEOLIVER WENDELL HOLMES, JR.

Galileo, for example, was summoned before the Inquisition in 1633 at the age of sixty-nine and forced to publicly admit he was wrong when he said the earth was not the center of the universe and that the earth revolved around the sun. According to the prevailing interpretation of the Bible, the universe revolved around a God-created stationary earth. To say otherwise was heresy. (The apocryphal story has Galileo saying under his breath as he listened to the pronouncement of the Inquisition, "It moves just the same.") Because Galileo recanted, he was spared the stake and was instead placed under house arrest for the remaining nine years of his life.

The great thinkers of the Enlightenment - who adored scientific advancement - found the persecution of Galileo particularly appalling. They used it again and again as an example of what governments should not do.

The "more perfect Union of the United States," then, would be one not based on intolerance, injustice, prejudice, religious beliefs, or the whims of the ruling class. It was based on "Life, Liberty, and the pursuit of Happiness."

Establish Justice ... Justice - a fundamental fairness in the government's interactions with its people - was notably lacking in 1787. Throughout the world one was generally presumed guilty when accused and had a few frantic moments in which to prove one's innocence while one's method of punishment (often execution) was being prepared. Those afforded a trial of any kind - a luxury in itself - were often given such treatment as "trial by fire," in which the accused carried a glowing-hot bar of iron up three stairs and then dropped it (if you had blisters on your hands three days later, you were guilty), or "trial by water," in which you were thrown into a body of water and, if you sank and didn't re-surface (something human bodies seldom do when thrown into water), you were presumed innocent and were set free (providing, of course, you didn't drown before they fished you out). For the common person, trial before a jury of one's peers was almost unheard of. Generally, the most one got was a trial before a magistrate or bailiff who was constable, judge, jury, and executioner all in one.

 I believe in only one thing: liberty;
but I do not believe in liberty
enough to want
to force it upon anyone.

H. L. MENCKEN

The idea that there would be justice - fair laws equally applied to all - was again revolutionary. The vast majority of injustices discussed by the great writers of the Enlightenment consisted of punishing "crimes" that had no innocent victims. No one complained when a highwayman was hung; it was the hanging of heretics (after torturing them so that "the devil" would leave their bodies) that incensed these writers. If one was killed while physically attacking a king, well, c'est la politique. What infuriated our founding fathers was that people were condemned for high treason and beheaded because they, oh, refused to acknowledge the monarch's right to dump his current wife (again) and marry another.

To the framers of the Constitution, such excesses of the ruler's power - supported by, demanded by, or excused by the ruler's religion - were not justice. Each citizen was entitled to justice without being aligned and in slavish agreement with the ruling powers.

The Constitution is not neutral.
It was designed
to take the government
off the backs of people.

JUSTICE WILLIAM O. DOUGLAS

Moreover, it was the government's job to guarantee justice to any citizen whose liberty was being threatened - to defend anyone from being forcefully put upon by others - including religious groups or the government itself. This is what the founding fathers meant by "establish Justice."

Ensure domestic Tranquillity ... It's hard to imagine that the domestic tranquility our founding fathers wanted to preserve was the tranquillity of the self-righteous - no matter how vocal or how many. On the contrary, they seemed to enjoy tweaking the righteousness of the mighty - promoting anything but tranquility in the domiciles of authority. The sort of don't-rock-the-boat-leave-well-enough-alone complacency ("If we legalize all the consensual crimes, think of all the trouble it will cause") was clearly not the domestic tranquility the founding fathers intended to promote. They advocated - and succeeded at - a violent revolution against a centuries-old religious belief (that the king of England ruled by "divine right") and a government (Great Britain's) that had done little more than impose on British Americans minor taxes. However upsetting the results might be to some, "domestic Tranquility" meant freedom - not conformity for the sake of "smoothing things over."

Promote the general Welfare ... The general welfare the framers of the Constitution were trying to promote was a government in which all people had sufficient individual freedom to explore ideas, themselves, and life itself, and to do with that life what they thought best. The general welfare was a government of freedom of thought and action for which our forebears risked everything.

One of the things that really bothers me
is that Americans don't have
any sense of history. The majority
of Americans don't have any idea
of where we've come from,
so they naturally succumb
to the kind of clich version
that Ronald Reagan represented.

ROBERT MASSIEPulitzer Prize-winning historian

Secure the Blessings of Liberty to ourselves and our Posterity ... That's us: Posterity. The Blessings of Liberty? I'm sure you know my definition of that.

Article I of the Constitution discusses the various qualifications for holding office. The only requirements are age, citizenship, and residency. It's more important to note the qualifications that are not given. There was no need to espouse religious, political, or moral beliefs, sexual preference, or anything else to be eligible to hold office. As we will discuss in the next chapter on separation of church and state, most states at that time had religious restriction for those holding office - a belief in the Christian religion, a belief in the Trinity, to be a practicing Protestant. These restrictions were swept aside by the Constitution.

As we shall see when we discuss the Tenth Amendment, what the Constitution doesn't say is just as important as what it does say. Essentially, all rights not taken by the Constitution for the federal government remain those of the states or the people. But just so there would be absolutely no doubt about the framers' intent, Article VI of the Constitution reiterates,

Article I, Section 8 lists what the Congress - and, hence, the government of the United States - has the power to do. This section is known as the Enumeration of Powers. It lists, quite clearly, what the federal government can do: collect taxes, borrow money, regulate commerce, standardize bankruptcy laws, coin money, punish counterfeiters, establish a post office, assign patents and copyrights, set up courts, punish pirates, declare wars, raise armies, maintain a navy - the practical running of a lean, mind-your-own-business government. Basically, it provides for a strong national defense, maintains a level playing field for those who wish to try their skill at commerce (it will even keep pirates at bay), creates an impartial court system for the settlement of disputes (which usually arise during acts of commerce), keeps ideas and things moving (with a post office, toll roads, copyrights, and patents), and that's about it. No, that's not about it - that's it!

Outside of the Constitution
we have no legal authority
more than private citizens,
and within it we have
only so much
as that instrument gives us.
This broad principle
limits all our functions
and applies to all subjects.

ANDREW JOHNSON

Nowhere in the Enumeration of Powers is there anything remotely resembling "regulation of personal or public morality," "making sure no citizens hurt themselves by experimental, reckless, or even downright foolhardy behavior," or "bringing God's laws to Earth as God's laws are interpreted by whichever religious group gathers enough political power." The Enumeration of Powers gives the government the power to run the government, not the personal or religious lives of the people.

The use of the words affirmation and affirm is significant. In the eighteenth century it was clearly understood that an oath was something taken before God; an affirmation was something taken on one's personal integrity, without having to acknowledge there even was a God. One would either be "sworn in" before God, or one would make an affirmation, personally promising to tell the truth, uphold an office, or whatever one was about to do.

Can it be
I am the only Jew
residing in Danville, Kentucky,
looking for a matzo
in the Safeway and the A&P?

MAXINE KUMIN

In England at the time, you could only take an oath - an oath to a Christian God; you could not make an affirmation. Before giving testimony in a court of law, one had to claim allegiance to the Christian faith and then swear to God to tell the truth. If one failed to take an oath, one could not provide testimony. The ramifications of the law were far reaching. If, for example, someone robbed you, and, if only you and the robber were present, it was not your word against his: if the robber agreed to take an oath and you did not, only the robber's evidence would be admissible in court. This put all non-Christians at a great disadvantage. The courts of law (as well as the sheriffs, magistrates, bailiffs, and other officials) were, for the most part, unavailable to them. The same was true if one were accused of a crime: unless one claimed allegiance to the Christian religion, one could not testify in one's own defense. This law remained in effect in England until 1879. (The antisemitic ramifications of this law are obvious.)

To add the words affirmation and affirm (and to repeat them in Article VI) is a clear and intentional separation of church and state. The existence of this separation, when discussing consensual crimes, is critical, and will be explored in detail in the chapter, "Laws against Consensual Activities Violate the Separation of Church and State, Threatening the Freedom of and from Religion" and the chapter, "What Jesus and the Bible Really Said about Consensual Crimes."

When we lose
the right to be different,
we lose
the privilege to be free.

CHARLES EVANS HUGHES

Article III, Section 3 of the Constitution states the limitation of what would be considered treason:

This is a major statement affirming freedom of expression. For us, living in an age when the royal family of England has more trashy tabloid coverage than Madonna, Brad Pitt, and aliens from outer space combined, it's hard to imagine what a significant statement this was.

In eighteenth-century England - and in most of the world for that matter - saying, for example, "The king is a tyrant," could have gotten you beheaded. Further, if someone said that you said the king was a tyrant, that would probably have been enough to ensure your execution. King Henry VIII had Anne Boleyn beheaded for high treason. The grounds? Infidelity. All it took was one person to admit - under torture - that he "loved" Boleyn, and Boleyn went to the block. Can you imagine the blood bath in the royal family if the same rules applied today?

Back then it was treason merely to say something the monarch did not like. The preferences of the monarch, from religion to fashion, were well known - sometimes laws - and to flout convention might upset the monarch, which was treason. (Actually, upsetting a duke, earl, or baron was treason; upsetting the king or queen was high treason. Upsetting a bishop, archbishop, or cardinal was heresy, often punished by death and carried out - with the state's blessing - by the church's armed enforcers, who were often more numerous than the crown's.) "That the king can do no wrong," wrote Sir William Blackstone in 1769, "is a necessary and fundamental principle of the English constitution."

You hear about
constitutional rights,
free speech and the free press.
Every time I hear these words
I say to myself,
"That man is a Red!"
You never hear a real American
talk like that!

MAYOR FRANK HAGUE

The founding fathers basically said, "Enough!" To insult, affront, or even seriously disturb the ruler was no longer grounds for punishment.

The founding fathers asked themselves, "What is the purpose of laws against treason," just as they asked themselves, "What is the purpose of all law?" The purpose of laws against treason was to defend the United States against acts of physical violence - "levying War against" it, or giving "Aid and Comfort" to those who were physically warring against the United States. Here, the principle that every crime needs a victim is re-established.

In defending this principle, the founding fathers opened themselves to all sorts of personal discomfort. Some of them knew they would serve in some public capacity and, by making war the only basis for treason, they were giving the people and the press free reign to attack them in any way other than physically.

The second point, involving "two Witnesses to the same overtovert. One can't just be thinking about doing something; one actually has to do it. This, again, supports the notion that it is an act of physical harm (in this case, war) that constitutes a crime.> Act" or "Confession in open Court," prohibited people from manipulating others by threatening to accuse them of treason. Just as today threats of exposing or prosecuting consensual crimes are often used to blackmail and to extort information and behavior from an unwilling party, so too the laws of treason were used for similar underhanded manipulation. Requiring that there be two witnesses to an overt act makes it much more difficult to falsify charges.

What's the Constitution
between friends?

TIMOTHY J. CAMPBELLResponse to President Cleveland,who refused to support a billbecause it was unconstitutional

Article IV, Section 2 begins, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This, once again, affirms that the Constitution is the supreme law of the land and that no state can take away the "Privileges" or "Immunities" (protections) given by the Constitution and the federal government. (This protection would be strengthened and deepened by the Fourteenth Amendment.)

At the close of the main body of the Constitution - desperate to find God in there somewhere - some people will point to the words "the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven." They say, "You see, they claim that Jesus is their Lord."

"The Year of our Lord" is, of course, a legal term commonly used in the eighteenth century. It no more acknowledges that Jesus is Lord than writing, "It happened in 436 B.C." acknowledges that Jesus was the Christ. It's an agreed-upon way of counting days that happened to be invented by some Christian monks. The Gregorian Calendar - the one that's been in use since 1582 - required the papal decree of Pope Gregory XIII for its adoption. (Science did not determine things then; the pope did.) Although the current calendar is a "religious document" issued by a papal bull, to say that each time we refer to the calendar it is an act of Catholicism, Christianity, or religion of any kind is absurd. Besides, at least three signers of the Constitution - George Washington, John Adams, and Benjamin Franklin (and almost certainly James Monroe) - were not Christians at all. They were Deists. (More on this in the next chapter.)

Fear of serious injury
cannot alone justify suppression
of free speech and assembly.
Men feared witches
and burned women.
It is the function of speech
to free men from the bondage
of irrational fears.

JUSTICE LOUIS D. BRANDEIS