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Chapter 7
The Constitution—A Glorious Standard
The Americans are the first people whom Heaven has favoured with an opportunity of deliberating upon, and choosing the forms of government under which they should live. All other constitutions have derived their existence from violence or accidental circumstances, and are therefore probably more distant from their perfection.
John Jay, 1777(1)
American Revolution(2) Inspired. We consider that the men in the Revolution were inspired, by the Almighty, to throw off the shackles of the mother government, with her established religion. For this cause were Adams, Jefferson, Franklin, Washington, and a host of others inspired to deeds of resistance to the acts of the King of Great Britain, who might also have been led to those aggressive acts, for aught we know, to bring to pass the purposes of God, in thus establishing a new government upon a principle of greater freedom, a basis of self government allowing the free exercise of religious worship.
It was the voice of the Lord inspiring all those worthy men who bore influence in those trying times, not only to go forth in battle, but to exercise wisdom in council, fortitude, courage, and endurance in the tented field, as well as subsequently to form and adopt those wise and efficient measures which secured to themselves and succeeding generations, the blessing of a free and independent government.
This government, so formed, has been blessed by the Almighty until she spreads her sails in every sea, and her power is felt in every land. (President Brigham Young, 1855, JD-2:170)
Founders Not Political Tyros. Moses was no more prepared by the training and experience gained in the Court of Pharaoh for his great service of leading Israel from the bondage of Egypt, [p. 70] than were the framers of the Constitution prepared by training and experience for their work of providing a form of government that would “secure the Blessings of Liberty to ourselves and our Posterity,” as they proclaimed to the world in the classic Preamble to the Constitution . . . .
This was a choice lot of men.(3) . . .
The framers were not political tyros flying a political kite to keep in order the henyard, that is, the colonists. They were men widely experienced in affairs of government . . . .
The Constitution was not the work of cloistered, fanatical theorists, but of sober, seasoned, distinguished men of affairs, drawn from various walks of life. They included students of wide reading and great learning in all matters of government . . . .
The Constitution was born, not only of the wisdom and experience of the generation that wrought it, but also out of the wisdom of the long generations that had gone before and which had been transmitted to them through tradition and the pages of history . . . .
These were the horse and buggy days as they have been called in derision; these were the men who travelled in the horsedrawn buggies and on horseback; but these were the men who carried under their hats, as they rode in the buggies and on their horses, a political wisdom garnered from the ages. As giants to pygmies are they when placed alongside our political emigres and their fellow travelers of today, who now traduce them with slighting word and contemptuous phrase.
Moses, the great Lawgiver, seemingly travelled on foot; so travelled the intellectual giants of Greece and Rome, or by horse or chariot; Christ, on foot or by donkey; and so Peter and Paul, though possibly by chariot sometimes; so with all the great ones of early modern times—Napoleon, Peter the Great, the Iron Duke, and scores of others. Intellectual power, wisdom, spiritual greatness, inspiration, vision, have never depended upon nor been proportionate to, speed in transportation . . . . [p. 71]
But I declare to you, for what it may be worth, that it [the Constitution] is what Gladstone said it was, the greatest document “ever struck off at a given time by the brain and purpose of man,” a document which, according to my belief, the Lord himself “suffered to be established, and should be maintained for the rights and protection of all flesh, according to just and holy principles,” established “by the hands of wise men whom the Lord raised up for that purpose”; and as the Lord said, this land was redeemed by the shedding of blood. I say to you that the price of liberty is and always has been blood, human blood, and if our liberties are lost, we shall never regain them except at the price of blood. They must not be lost!
The proudest boast of a citizen of ancient Rome was, “I am a Roman.” The proudest boast of any patriotic citizen of this free country of ours should be, “I am an American.” God grant this boast may ever be ours. (J. Reuben Clark, CN-11/ 29/52)
The Constitutional Convention. The Constitutional Convention was in fact a revolutionary body composed of representatives of the people. Neither the Constitutional Convention nor its work had any legal and official political sanction until it was adopted by the representatives of the people . . . .
The record of their work gives early evidence that the leaders were consciously abandoning the idea of amending the articles of Confederation. They were striking out along new lines.
They also gave up following the British Government as a model. Randolph declared: “. . . the fixt genius of the people of America required a different form of Government.” (Farrand, The Records of the Federal Convention, Vol. I, p. 66)
Furthermore, they found no ancient or modern system that they might take as a blueprint for their work. Madison said: “. . . as it was more than probable we were now divesting a plan which in its operation wd. decide forever the fate of Republican Govt. we ought not only to provide every guard to liberty that its preservation cd. require, but be equally careful to supply the defects which our own experience had particularly pointed out.” (Documentary History of the Constitution of the United States of America, 1786- 1870, Vol. III, p. 216.)
In the same strain, Franklin called the attention of the Framers to their situation in these words: “We have gone back to ancient history for models of Government, and examined the different forms of those Republics which having been formed with the seeds of their own dissolution now no longer exist. And [p. 72] we have viewed Modern States all round Europe, but find none of their Constitutions suitable to our circumstances.” (Farrand, Vol. I, p. 451.)
Nevertheless, it is clear that, learned as they were in political history and in matters of world-wide politics, they exhausted the lessons of history and of their own experience, which was of a considerable nature for they came, as it were, from twelve different countries—in an effort to find the best which their learning, experience, and wisdom could furnish . . . .
It will be recalled, as already pointed out, that the resolution of the Continental Congress in expressing its opinion of the expediency of the proposed Constitutional Convention to be held in Philadelphia, explicitly stated that it was for “the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government and the preservation of the Union.” (Farrand, Vol. III, pp. 13- 14)
As a matter of fact, the Convention fully and completely ignored these instructions, both in the preparation of the Constitution and in its suggestions as to the method of its submission to the people. The Articles of Confederation were completely abandoned. The Congress, upon receiving the document, did not “agree” to the Constitution as they had provided, indeed it completely abandoned the Articles of Confederation. It passed the Constitution to the States to be acted upon, not by the State Legislatures (as stipulated by the Continental Congress), but by conventions specially called for its consideration and adoption. Congress became a mere messenger boy to get the Constitution to the people. (The United States, Its Beginnings, Progress and Modern Development, Edwin Wiley and Irving E. Rines, ed. 1912, Vol. IV, pp. 1-30.)
Again we may state that in simple fact, and in legal concept and effect the Constitutional Convention was a revolutionary body, the outgrowth of a bloodless political revolution. The governmental system set up was a revolutionary government, completely dissimilar from that under the Articles of Confederation. We went through two revolutions—in the first, we won our political independence from Britain; in the second, we planned and established a system of government, a blueprint for which was not found in the entire history of the world. (J. Reuben Clark, 5/29/57) [p. 73]
An Inspired Instrument.(4) From my childhood days I have understood that we believe absolutely that the Constitution of our country is an inspired instrument, and that God directed those who created it and those who defended the independence of this nation. Concerning this matter it is my frequent pleasure to quote the statement by Joseph Smith, regarding the Constitution:
The Constitution of the United States is a glorious standard; it is founded in the wisdom of God. It is a heavenly banner; it is, to all those who are privileged with the sweets of liberty, like the cooling shades and refreshing waters of a great rock in a weary and thirsty land. It is like a great tree under whose branches men from every clime can be shielded from the burning rays of the sun. (DHC-3:304)
And such the Constitution of the United States must be to every faithful Latter-day Saint who lives under its protection.
We honor the man that God honors. We honor Abraham Lincoln because we believe absolutely that God honored him and raised him up to be the instrument in His hands of saving the Constitution and the Union. (President Heber J. Grant, 1940, E-43:127)
The laws and constitution of the people . . . I have suffered to be established, and should be maintained for the rights and protection of all flesh, according to just and holy principles; that every man may act in doctrine and principle pertaining to futurity, according to the moral agency which I have given unto him, that every man may be accountable for his own sins in the day of judgment.
Therefore, it is not right that any man should be in bondage one to another. And for this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose, and redeemed the land by the shedding of blood. (Revelation to Prophet Joseph Smith, 1833, D&C 101:77-80)
I want to raise my voice to you and say, our Heavenly Father raised up the very men that framed the Constitution of the United States. He said He did. He gave to us the greatest Palladian of human rights that the world knows anything about, the only system whereby people could worship God according [p. 74] to the dictates of their consciences without, in any way, being molested when the law, itself, was in effect . . . . Yet, we have people who would like to change that and bring some of those forms of government that have failed absolutely to make peace and happiness and comfort any other place in the world, and exchange what God has given to us—the fullness of the earth and the riches of liberty and happiness. Yet, there are those who go around whispering and talking and saying, “Let us change this thing.”
I am saying to you that to me the Constitution of the United States of America is just as much from my Heavenly Father as the Ten Commandments. When that is my feeling, I am not going to go very far away from the Constitution, and I am going to try to keep it where the Lord started it,(5) and not let anti-Christs come into this country that began because people wanted to serve God. (President George Albert Smith, CR-4/ 48:182)
To me, that statement of the Lord, “I have established the Constitution of this land,” puts the Constitution of the United States in the position in which it would be if it were written in this book of Doctrine and Covenants itself. This makes the Constitution the word of the Lord to us. That it was given, not by oral utterance, but by the operation of his mind and spirit upon the minds of men, inspiring them to the working out of this great document of human government, does not alter its authority . . . . (J. Reuben Clark, CR- 4/35:93)
A God Inspired Foundation. The General Constitution of our country is good, and a wholesome government could be framed upon it, for it was dictated by the invisible operations of the Almighty . . . .
God’s purpose, in raising up these men and inspiring them with daring sufficient to surmount every opposing power, was to prepare the way for the formation of a true Republican government. They laid its foundation; but when others came to build upon it, they reared a superstructure far short of their privileges, if they had walked uprightly as they should have done . . . .
The signers of the Declaration of Independence and the framers of the Constitution were inspired from on high to do [p. 75] that work. But was that which was given to them perfect, not admitting of any addition whatever? No; for if men know anything, they must know that the Almighty has never yet found a man in mortality that was capable, at the first intimation, at the first impulse, to receive anything in a state of entire perfection.(6) They laid the foundation, and it was for after generations to rear the superstructure upon it. It is a progressive—a gradual work. If the framers of the Constitution and the inhabitants of the United States had walked humbly before God, who defended them and fought their battles when Washington was on the stage of action, the nation would now have been free from a multitude of place- hunters who live upon its vitals . . . . (President Brigham Young, 1854, JD-7:13-15)
The Basic Law of Zion. The Constitution of the United States is the basic law for all of the Americas, of Zion, as it has been defined by the Lord.
You brethren from Canada know that your great British North America Act, in its fundamental principles, is based upon our Constitution, and you know that in the courts of Canada, the reports of our Supreme Court, and our Federal courts generally, are just as persuasive as the decisions of the courts of England, and even more so, where questions of constitutional law and constitutional interpretation are involved.
You brethren also know that from the Rio Grande down to the Horn there is no constitutional government except those that are founded primarily upon our Constitution. In Mexico the revolutionary party which more than a century and a quarter ago rebelled against the king of Spain and established a republic, copied almost verbatim, and practically overnight, our Constitution, and made it their own. Neither Mexico nor the others of the South interpret their Constitutions as we interpret ours. They have different standards and different canons of interpretation, for their fundamental system is the civil law, while ours is the common law. But the great essentials of that document, the Constitution of the United States, which God Himself inspired, is the law of Zion, the Americas.
So, Brethren, I wish you to understand that when we begin to tamper with the Constitution we begin to tamper with [p. 76] the law of Zion which God Himself set up, and no one may trifle with the word of God with impunity. (J. Reuben Clark, CR-10/42:58-59)
Inspired Constitution Can Be Maladministered. We have no fault to find with our government. We deem it the best in the world. But we have reason to deplore its maladministration, and I call upon our legislators, our governors and president to pause in their career and not to tamper with the rights and liberties of American citizens, nor wantonly tear down the bulwarks of American and human liberty.(7) (President John Taylor, 1882, JD-23:53, 65)
Constitution Properly Administered Blesses All. The longer I live, and the more acquainted I am with men and things, the more I realize that these movements, and particularly that instrument called the Constitution of American Liberty, was certainly dictated by the spirit of wisdom, by a spirit of unparalleled liberality, and by a spirit of political utility. And if that Constitution be carried out by a just and wise administration, it is calculated to benefit not only all the people that are born under its particular jurisdiction, but all the people of the earth, of whatever nation, kindred, tongue, religion, or tradition, that may seek to take a shelter under its banner. (Parley P. Pratt, 1853, JD-I: 138)
Civil Law and Common Law Systems. As of the time of the writing of the Constitution, there were two great systems of law in the world—the Civil Law (the law of continental Europe) and the Common Law (the law of England and her colonies, including the 13 American Colonies).
Briefly, and stated in general terms, the basic concept of these two systems was as opposite as the poles—in the Civil Law the source of all law is the personal ruler; whether prince, king, or emperor—he is sovereign. In the Common Law, certainly as finally developed in America, the source of all law is the people; they, as a whole, are sovereign.
During the centuries, these two systems have had an almost deadly rivalry for the control of society, the Civil Law, and its fundamental concepts being the instrument through which ambitious men of genius and selfishness have set up and maintained despotisms; the Common Law, with its basic principles, being [p. 77] the instrument through which men of equal genius, but with the love of mankind burning in their souls, have established and preserved liberty and free institutions. The Constitution of the United States embodies the loftiest concepts yet framed of this exalted concept. Because of these different concepts and the presence and reaction amongst us today of the Civil Law concepts, I wish in very general terms, to contrast some of the characteristics of these two systems.
The Civil Law was developed by Rome, with a high genius not since excelled. Its provisions reached deep into the elemental factors that weld men into nations. Rome was called the Mistress of the World, and in the realm of law she retains, today, among the bulk of civilized peoples, that proud position . . . .
We should understand that everything connected with the Emperor was divine or sacred—there was the sacred imperial palace, the sacred imperial bedchamber, the sacred imperial wardrobe, the sacred laws, etc. The government was an absolute autocracy, the state was thoroughly militarized, the Emperor in supreme command. The Emperor was the sole source of law . . . .
It is interesting to note that these laws, proclaimed over 1,500 years ago, had provisions covering such so-called modern concepts, which our emigres and fellow travellers would have us believe are new inventions, price fixing, black markets, excessive taxation, socialized medicine, conscription of labor, anti-Semitism, inflation, corruption in government bureaus, the relationship between Church and State—all phrases familiar to our ears. Under these laws, “The entire population was organized as in one vast army. All, including the highest officials, were strictly classified, and even the least had a station. In substance this meant that everyone did what he was told, and did not act without permission.” There was a great body of secret police to report disobedience; there was a “special” secret police appointed to watch the ordinary secret police. These laws were framed to provide security.
We of today have heard that same kind of security talk. But, in fact, all this bred not security, but scarcity of grain, of materials, of men. The mere making of laws, even in an absolute despotism, does not change the great laws of nature and economics—neither then nor now, for there can be no permanent stability where men are not free. In fewer than 40 years from the issuance of the Theodosian Code (i.e., 476 A.D.) the Empire of the West fell, notwithstanding the operation, under complete autocratic powers, of economic devices enacted to promote the welfare of the people and to preserve the empire; some of these devices were the same ones that we have been told will rebuild [p. 78] our economic structure and preserve our free institutions. These devices failed with Rome; they will ultimately fail with us . . . .
The people under this system have those rights, powers, and privileges, and those only which the sovereign considers are for their good or for his advantage. He adds or takes away as suits his royal pleasure. All the residuum of power is in the Emperor. Under this system, the people look into the law to see what they may do. They may only do what the Emperor has declared they may do. It may be noted in passing, that under our common law system, we look into the law to see what we may not do, for we may do everything we are not forbidden to do.
This civil law concept explains why, over the centuries, it has been possible for the head of a state, operating under this concept, to establish with comparative ease a dictatorship.
We must always remember that despotism and tyranny, with all their attendant tragedies to the people, as in Russia today, come to nations because one man, or a small group of men, seize and exercise by themselves the three great divisions of government,—the legislative, the executive, and the judicial. For now a score of centuries, the nations and peoples of Western and Southern Europe—the bulk of the civilized world until less than two centuries ago—have lived under this concept (sometimes more, sometimes less) and, when the concept has been operative, have suffered the resulting tragedies—loss of liberty, oppression, great poverty among the masses, insecurity, wanton disregard of human life, and a host of the relatives of these evil broods.
The framers of our Constitution knew this history, and planned to make sure that these enemies to human welfare, freedom, and happiness did not come to America. They were trained and experienced in the Common Law. They remembered the Barons and King John at Runnymede. They were thoroughly indoctrinated in the principle that the true sovereignty rested in the people.
Near the beginning of our Revolution, the representatives of the people met in Philadelphia and issued their great proclamation, the Declaration of Independence. They solemnly announced: [See P. 519 for full text.]
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty [p. 79] and the pursuit of Happiness.(8) That to secure these rights, Governments are instituted among Men, deriving their powers from the consent of the governed . . . . And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, We mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
They made good the pledge to the last great sacrifice, and independence was won. The representatives of the people were then speaking, and they spoke the things that were in their hearts, for which they were ready to die, and did die. No Emperor ever spoke in these terms. To have done so, would have been his suicide.
Twelve years after the Declaration, spurred by dissensions among the colonies which threatened civil disturbances that would have invited reconquest, the representatives of the people again met in Philadelphia in the same hall and framed the Constitution. The preamble to that inspired document laid down the great purposes to accomplish which the new government was set up. It declared:
WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America. [See P. 524 for full text of Constitution.]
Here the people were speaking as sovereign, not an Emperor, nor a small, self- appointed group assuming to be sovereign. The people declared they were so acting and did so act by adopting the Constitution. They formally declared: “We the people . . . do ordain and establish.” This is the difference between liberty and despotism.
Deeply read in history, steeped in the lore of the past in human government, and experienced in the approaches of despotism which they had, themselves, suffered at the hands of George the Third, these patriots, assembled in solemn convention, planned for the establishment of a government that would ensure to them the blessings they described in the Preamble. [p. 80] The people were setting up the government. They were bestowing power. They gave to the government the powers they wished to give; they retained what they did not wish to give. The residuum of power was in them . . . .
Separation of Powers. The Framers, in the Government they provided for, separated the three functions of government, and set each of them up as a separate branch—the legislative, the executive and the judicial. Each was wholly independent of the other. No one of them might encroach upon the other.(9) No one of them might delegate its power to another.(10)
Yet by the Constitution, the different branches were bound together, unified into an efficient, operating whole. These branches stood together, supported one another. While severally independent, they were at the same time, mutually dependent. It is this union of independence and dependence of these branches—legislative, executive and judicial—and of the governmental functions possessed by each of them, that constitutes the marvelous genius of this unrivalled document. The Framers had no direct guide in this work, no historical governmental precedent upon which to rely. As I see it, it was here that the divine inspiration came. It was truly a miracle.
The people, not an Emperor or a small group, were to make the laws through their representatives chosen by them. To make sure the representatives did not get out of hand,(11) they were elected for short terms of office. The people could, at short [p. 81] intervals, displace unsatisfactory representatives and elect others to take their places. The will of the people, not the will of an Emperor, was to control.
Furthermore, the people specified in the great document, the matters about which their representatives could make laws. The sovereign power was in the people, and the legislative branch could go only so far as they authorized.(12) They lodged in the Congress the sole power to make laws about the matters they entrusted to them, and none others. This is basic, elemental. There is a tendency to overlook it. [See Article I, Sec. 1, of Constitution on P. 524.]
As already stated, the whole residuum of legislative power rested in the sovereign people, and the Congress could not enter that reserved domain without express authorization from the people. This is the principle that operates to declare a law un constitutional. We, the people, have all this power in our hands, if we but exercise it . . . .
The Convention (Washington was its president) provided for the election by the people of their chief executive—a President—for a limited term. Under the influence of Washington’s lofty patriotism, they failed to think it necessary to provide limitations upon re-election. But, mindful of the lessons of history, the Convention, representing the people, bestowed upon their President certain specific powers, only. He had none they did not bestow. They bestowed upon the chief executive all the executive powers they gave to anybody. Here, also, all the residuum executive powers were retained by the sovereign people. If the executive is lawfully to exercise any further powers, these powers must be bestowed by the people. The President is not a sovereign emperor, yet in the executive department is lodged all the executive power, which, by the Constitution, the people gave up to government.
As a check upon the legislative branch, the people, under the Constitution, gave the chief executive certain limited legislative functions; he reports the needs of the country to Congress, he can recommend legislation, he can veto bills of Congress, but Congress can pass these bills over his veto.
That the President might not acquire too much power in his executing of the laws, the people imposed certain limitations upon his powers of appointment to office by providing that [p. 82] the Senate must advise and consent to certain of the more important appointments.
To the same point of further checking the executive power, in legislative matters, the people provided, through their representatives at the Convention, certain restrictions to his conduct of foreign affairs, by providing that treaties must be ratified by the Senate. Moreover, our diplomatic representatives can be properly appointed only by and with the advice and consent of the Senate.
Thus, while the President is given certain powers with respect to the enactment of legislation, the Congress is given certain powers with respect to the administration of the government. These arrangements are sometimes spoken of as checks and balances, and if they are observed, they prevent any encroachment by one branch of the government against another,(13) or upon the rights and privileges which the people reserve to themselves.
The people, through their representatives at the Convention, provided for a judiciary which was to judge the laws, to determine, first, whether the laws were in agreement with or in derogation of the powers conferred upon the federal government, and, second, to determine the respective rights of litigants under the law. All the judicial powers of the government were to be exercised by the courts.
Here, also, safeguards were provided. The President nominates the various judicial officers, but the Senate must advise and consent to their appointment. The legislative branch and the executive branch cooperate in the setting up of the judiciary, which, however, once created, acts independently of either of the others.
There is no provision in the Constitution giving general authority to either branch to function in the field of the other, except as specifically provided; nor is either branch (except as specifically provided otherwise) to delegate any of its powers to the other. These two principles are elemental. So long as these principles are observed, our liberties and our free institutions are secure, and no despotism can be set up amongst us. (J. Reuben Clark, CN-11/29/52) [p. 83]
Officers Bound By Constitution. In our government, whether in a National, State or Territorial form, all officers, of every grade, are requested to take a solemn oath to sustain and maintain the constitution of the United States, and of the State . . . as the case may be. If these things are not a fiction all these officers and authorities throughout the land in every department . . . are as much bound by their obligations and oaths as the people are bound to be subject to all constitutional laws, and the people are not one whit more bound to the observance of the law than these men are bound to the observance of the sacred and solemn covenants which they have entered into.(14)
And if the people have given up to governors, legislatures, the judiciary and to the officers of the law certain powers, rights and privileges, this authority coming of or from the people, it is expected that they shall act for and in the interests of the people; and furthermore, that while they possess those rights ceded to them by the people, whatever is not thus ceded and placed in the hands of their rulers is emphatically stated to be reserved to the several States or to the people . . . . (15) (16)
It must be understood here in matters pertaining to our government, that no charters or grants of any kind can be given by any parties, in excess of the rights which they themselves possess, and that the same obligations which vest in regard to [p. 84] constitutional rights and guarantees must be observed in all those municipal regulations by the recipients as of the grantees of those charters. (President John Taylor, 1884, JD-26:348-9)
Sovereignty Rests in People. The Ninth and Tenth Amendments in words declared: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That is to say, the rights enumerated in the Constitution and the first ten Amendments were not the sum of the rights possessed by the people. The total residuum of power, the sovereignty, rested in the people, not in the government nor in its officers. This marked the fundamental difference between this Anglo-Saxon Constitution and the government set up under it, and the Justinian and Napoleonic codes and the governments set up under them.
With us, the government possesses only those powers we specifically give to it; we the people, the sovereign, possess all else. With them, the people have only the rights given by the Emperor and specified in the codes,—the Emperor, the sovereign, retaining all the residuum of power.
I have often put the situation thus: we look into our laws to see what we may not do, for we may do anything we have not given away, for the whole residuum is ours. They look into their laws to see what they may do, for they may do only the things the Emperor has said they may do, for all the residuum of power is in him. This makes us free men; it makes them subjects. Statism is the principle behind the Justinian and Napoleonic codes, carried to the nth power.
But to make this principle doubly secure under our Constitution, the Fathers added a further stipulation: “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.”(17)
To reiterate,—for it cannot be too often said: This provision makes clear that the powers of our government are not inherent therein, but are delegated, which means, in other words, that the government has such powers and such powers only as [p. 85] the people have given them in and by the Constitution, and this means all the residuum of power is in the people.(18)
Congress can legislate about those things only which we the people have authorized them to deal with. That Senators and Congressmen are our representatives to legislate about these specified things does not authorize them to legislate about things not covered by the Constitution. For them to do so is for them to usurp power and, in effect, to change and amend the Constitution, and we the people have given them no authority to do this; indeed, we have specifically provided other means and methods for amendment. This is not true of the laws of Justinian and Napoleon, for there the residuum of power being in the Emperor, his government may invoke powers as it may wish, the residuum of power resting there . . . .
Moreover, these powers being powers delegated by the people, it follows they may not be enlarged, contracted, or transferred to any other agency or from one to either of the others without the constitutional mandate of the people.(19) Yet, beginning with the NRA under General Hugh Johnson and since, Congress, under the domination of those who in turn were under the influence and direction of European political emigres and their political satellites of this country, has passed law after law that provided for the exercise, by the very same tribunal, of legislative, executive, and judicial powers—a tribunal that made the law, judged the law, and prescribed the penalty, and then executed it—in many cases, it would appear, without provision for an appeal to the courts. All this was presumably in harmony with the constitutional law of the European emigres, [p. 86] but wholly violative and destructive of our American constitutional system. (J. Reuben Clark, CN-9/25/49)
Preamble Not A Grant of Power. May I emphasize that the mere fact that a matter might be of concern everywhere in the States was not sufficient in the wisdom of the Fathers to bring the matter within Federal jurisdiction. To place it there the matter must be one falling within the purposes or functions of the Federal government as declared in the Preamble of the Constitution, which ran:
We the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America.
And may I say here that over and over again this Preamble has been held by the Supreme Court of the United States to be a setting out of the purposes of the Federal Government and not a source of its jurisdiction and powers. (J. Reuben Clark, 2/22/35)
Constitution Not Perfect. It is one of the first principles of my life, and one that I have cultivated from my childhood, having been taught it by my father, to allow every one the liberty of conscience. I am the greatest advocate of the Constitution of the United States there is on the earth. In my feelings I am always ready to die for the protection of the weak and oppressed in their just rights. The only fault I find with the Constitution is, it is not broad enough to cover the whole ground.
Although it provides that all men shall enjoy religious freedom, yet it does not provide the manner by which that freedom can be preserved, nor for the punishment of Government officers who refuse to protect the people in their religious rights, or punish those mobs, states, or communities who interfere with the rights of the people on account of their religion. Its sentiments are good, but it provides no means of enforcing them. It has but this one fault. Under its provision, a man or a people who are able to protect themselves can get along well enough; but those who have the misfortune to be weak or unpopular are left to the merciless rage of popular fury.
The Constitution should contain a provision that every officer of the Government who should neglect or refuse to extend the protection guaranteed in the Constitution should be subject to capital punishment; and then the president of the United States would not say, “Your cause is just, but I can do nothing for you.” . . . (Prophet Joseph Smith, 1844, DHC- 6:56-7) [p. 87]
Amendments—Principle to Observe.(20) It is not my belief nor is it the doctrine of my Church that the Constitution is a fully grown document. On the contrary, we believe it must grow and develop to meet the changing needs of an advancing world. We know that greed and avarice and lust for power and dominion over men are always with us, and will be until the millennium shall come. We know that these curses of men never sleep nor die, that they alter their ways of vice to evade the control of law and order. We know that sometimes they reach such size and influence that their handling may require changes not only in legislation but on rare occasion, in the Constitution itself. But all changes must be made to protect and preserve our liberties, not to take them from us. Greater freedom, not slavery, must follow every constitutional change.
So we do hold that in all that relates to its great fundamentals—in the division of powers and their full independence one from the other, in the equal administration of the laws, in the even-handed dispensing of justice, in the absence of all class and casts, in the freedom of the press and of speech and of religion—we believe that in all such matters as these our Constitution must not be changed.(21) (J. Reuben Clark, 1938, Vital Speeches, 4:177)
Amendments—Conservative Progress Needed. Before you change the fundamental laws of this State or before you change the fundamental laws of this Nation, or of the Constitution upon which it is based,—be sure that step is a necessary and beneficial one. True, changes may be necessary and they will come. I am only advising and counseling the greatest caution in matters of this kind which may come before you. I refer to it be cause I have heard men who advocate the thought that we are a progressive people, a progressive State, a progressive Nation, and that is very true. But we must progress along conservative, consistent [p. 88] lines, taking care not to break away from those moorings which God caused to be fixed by wise men whom he chose to give us the Constitution of this country, and the constitution and laws which govern this State. (Anthony W. Ivins, CR-10/16:65-6)
Amendments—Lord Prescribed Method. We sometimes hear: “Well, the Lord can inspire rulers to change the Constitution. He inspired the first Constitution; he can inspire changes.”
I should like to point out to you that in that inspired document, the Constitution, the Lord prescribed the way, the procedure by which the inspired framework of that Constitution could be changed. Whenever the Constitution is amended in that way, it will be an amendment that the Lord will approve; but whenever it is amended in any other way than He prescribed, we are not following the commandment of the Lord and must expect to lose our liberties and freedom.(22)
The Constitution was framed in order to protect minorities. This is the purpose of written constitutions. In order that minorities might be protected in the matter of amendments under our Constitution, the Lord required that the amendments should be made only through the operation of very large majorities—two thirds for action in the Senate and three-fourths as among the states. This is the inspired, prescribed order.(23) . . . [p. 89]
Brethren, let us think about that, because I say unto you with all the soberness I can, that we stand in danger of losing our liberties, and that once lost, only blood will bring them back; and once lost, we of this Church will, in order to keep the Church going forward, have more sacrifices to make and more persecutions to endure than we have yet known, heavy as our sacrifices and grievous as our persecutions of the past have been. (J. Reuben Clark, CR-4/44:115-116)
No Inadequacy in Constitution.(24) Having in mind the loudness with which some few cry out against the inadequacy of our system, I may observe that the mere seeming existence of an exigency not apparently covered by our fundamental instrument, or the appearance of an inconvenience of mere administration under it, cannot justify any branch of government in a violation of the Constitution.(25) Nothing but such a necessity in extremis as the compelling force of a conquering foe could justify any branch of government in assuming that the people had willed a violation of their fundamental charter of government. Moreover, it is to be said of the past that no necessity has thus jar arisen in our history which could not have been ultimately and adequately met by constitutional methods. And history justifies the further statement that the cry sometimes raised for amendment of our great fundamental charter to meet transitory and pseudo- emergencies, the charge that we are governed by an antiquated instrument embodying obsolete principles unsuited and irresponsive to the needs of modern life, this cry and charge almost always come from those who, from want of individual or racial capacity, are incapable of understanding or appreciating the fundamentals of, or to think prac tically and creatively about, the problems of free self-government.
There is every reason to believe that those who understand the spirit as well as the word of the Constitution will be able in the future as in the past to find a way under it to meet all national emergencies and yet preserve its great principles and [p. 90] the republican form of government for which it provides. (J. Reuben Clark, CN-11/29/52)
Beware of Disloyalty. We owe at least the consideration to be loyal to this country and to spurn with all the soul that is within us the scheming disloyal citizens(27) who would undermine our Constitution, or who would deprive the individual of his liberty vouchsafed by that great document, and some of our men who have come up through the public schools are doing just that. Let every loyal member of the Church look down with scorn upon any man or woman who would undermine that Constitution. (President David O. McKay, CN-5/29/54)
I counsel you, I urge you, I plead with you, never, so far as you have voice or influence, permit any departure from the principles of governments on which this nation was founded, or any disregard of the freedoms which, by the inspiration of God our Father, were written into the Constitution of the United States. (President Heber J. Grant, CR-10/44:12)
Defamers of Constitution. It seems wise to remind ourselves of these matters because some people belittle that great document and its fundamental principles, sometimes to the point of derision. Sometimes we forget the Constitution.
These defamers say that the Constitution, and our government under it, are outmoded; not responsive to present-day conditions of life and living; not sufficient to meet and solve present-day problems; and that we need a modern up-to-date system of government.(28) They let us know what should be done to meet their ideas and plans, which seem always to run to despotism.(29) [p. 91]
I have observed that numbers of these defamers take advantage to the utmost of every liberty and freedom created and protected by the Constitution in order to destroy it and its guarantees, so to make easy the setting up of a tyranny that would deprive the common man of his freedom and liberties under it, so permitting these defamers to set up a government that would give place, power, and privilege to them in a despotism to be imposed upon the mass of mankind. We have witnessed this very despotism. There would be a Kremlin in every country on the globe, all under the super-Kremlin in Moscow.
One class of these defamers are the same persons who declare the Ten Commandments, the basic law of the civilized world to be outmoded . . . .
The same people declare the Sermon on the Mount to be outmoded, irresponsive to the needs of the people of today . . . .
If all that God and his Only Begotten taught that will lead us to the immortality and eternal life that is God’s declared glory, could be wiped out and forgotten, leaving only Satan and his work, the followers of Satan would, in their ignorance, have reached a Satanic heaven. (J. Reuben Clark, Jr., CR-4/57:44-5)
Executive Directives are Unconstitutional. In violation of the fundamental concept of the Constitution that there are three mutually independent branches of government m the legislative, judicial, and executive—neither of which may usurp or have granted to it the power to intrude upon the functions of the other, we have seen grow up, under this destructive influence I have named, the theory and practice that the executive branch may in fact legislate.(30) Many of these legislative-like enactments are dubbed “directives,” a new and meaningless term in our constitutional government. Unless they are legal Executive Orders, they have no legal force. However sound such enactments may be under the principles and practices of the Civil Law—with which the leadership of the communistic [p. 92] publicists are familiar and in which they are probably trained—they are outside our constitutional law and procedure. Behind them are no popular urges—indeed, they not infrequently fly in the face of the peoples desire; they are made without public notice or discussion, in violation of established law-making procedure; they are not made by the representatives of the people with a responsibility running back to the people; on the con trary, they are made by young, frequently alien, bureaucrats, with boyish outlooks and frequently with no practical experience,—youths owing no loyalty or responsibility to anyone but their immediate petty official superior (unless there be here amongst us an inner secret State,(31) as some have charged) and hardly a one of whom has been or could be elected to any office, and almost surely not to the offices they hold, by the vote of the people.
However, these “directives” involve more than the legislative usurpation. The units that frame them likewise enforce them,—thus becoming both legislature and executive. Furthermore, in cases of dispute, they not infrequently try, condemn, and pronounce judgment for violations, thus acting as a court in judging their own enactments; and finally, having made the law, and judged the law, and imposed the penalty, they act as sheriff to carry out the sentence. This combines all the elements of government into one.(32) This is tyranny in its most complete form, however beneficient it may happen temporarily to be in fact. It was Thomas Jefferson who said: “What has destroyed the liberty and rights of man in every government which has [p. 93] ever existed under the sun? The generalizing and consolidation of all cares in one body.” (33) . . .
Thus, and speaking in general terms, the Federal Government has reached down and touched the individual lives of the citizens in a multitude of matters which for a century and a half were held to be untouchable by that Government under those constitutional provisions which declared that the Federal Government is a government of delegated powers, and that unless powers are expressly given they are reserved by the people who grant the powers—either to themselves or to their State Governments. Any proverbial school boy knows that the exercise by the Federal Government of a power not delegated to it by the people, is plain usurpation; so also he knows that any exercise by one department of the Federal Government of any power not expressly granted to it is a usurpation, whether that power be not granted at all or whether the people have in their Constitution granted that power to another department of the Government. These are merest commonplaces in constitutional law, but they are basic principles which are suffering daily violations.(34)
Unless these usurpations are stopped, social, economic, and governmental chaos will come.(35) There are those who believe that the destructive influences wish chaos because they believe [p. 94] that out of it they can most easily build their projected communistic state here in America. (J. Reuben Clark, 10/7/43)
Freedom to Criticize. The fathers were schooled in attempts to control what they wrote and spoke in criticism of government; they knew how tyranny and oppression smart, and even slough away under publicity; they understood how “little” men in office resent disapproving comment on their acts and how they try to punish those who make the comment. So they provided that Congress should make no law “abridging the freedom of speech or of the press.” But the fathers never caught the picture of a regulatory power over means of communication and publicity that could forestall all but favorable expressions regarding government. The fathers felt that when they protected freedom of speech and of the press against governmental interference they had effectively guaranteed the citizen’s freedom to talk and write as they felt and thought about their own government?(36) (J. Reuben Clark, 1938, Vital Speeches 5:174)
Inroads Upon Constitution. I wish now briefly to call attention, in general terms, to some inroads that are making into our constitutional system.
In this connection, I ask you to keep in mind that the despotism made possible and often existing under the Roman Civil Law, resulted from the concept that the head of the state had all governmental powers, in their totality,—legislative, executive, and judicial. This is the lex regia concept. I repeat, this makes despotism possible,—then and now.
There is a growing tendency for our Congress to turn over to administrative commissions the power to make laws. This plan carries the innocent description of making regulations for enforcing the laws. But lawyers know that under the guise of issuing regulations, these administrative bodies really legislate, not only in procedural matters, but also in substantive matters. The emperor idea (always alluring to ambitious men) is taking root.
Again, these same administrative bodies that so legislate, also act as judges of their legislation. They are pro tanto the judiciary judging their own laws. This is some more Emperor, more lex regia concept.
Finally, I am told that in certain matters, these administrative bodies exercise executive powers to enforce their decisions. [p. 95] If this be true—I fear it is, this is the final Emperor step,—the lex regia concept of the Roman system,—in one place the legislative, the executive, and the judicial powers.
We the people have accepted all this. The courts have not condemned it. As to the matters affected, we are now a despotism. If it is established and accepted in one field, it is easily extended over others. It is only a matter of time and our complacency. It is not possible to condemn too strongly this growing perversion of our constitutional principles.
Again, and as another check upon the executive, in his conduct of international relations, the diplomatic representatives of the government must be, as we the people provided in the Constitution, nominated by the President and approved by the Senate. But the habit is growing of appointment by the President of personal, quasi-diplomatic representatives, “ambassadors at large” they call them, who “going to and fro in the earth and walking up and down”—to use Job’s phrase—bring their harvests to the President. President Wilson was the first to give this device considerable importance when he sent the ubiquitous Colonel House to Europe. Col. House (not approved by the Senate) with the President’s approval, committed us to enter World War I on the side of the Allies more than a year before Congress declared War.
There is no such thing as a Presidential Ambassador under the Constitution. This is another Emperor insignia. Our Ambassadors are Ambassadors of the United States, not Ambassadors of the President. We the people have accepted that innovation, too.
We the people provided in our Constitution that the President should report the state of the Union to Congress and recommend legislation. But there is growing up the custom for the chief executive not only to recommend legislation, but actually to draft it, and submit it to his favorites in Congress to secure its passage. The administration support in Congress takes the bill and makes every effort to pass it. The Roman Senate receiving the Theodosian Code, without discussion, not dotting an “i” or crossing a “t,” and with shouts of “It is right! So be it!”, was hardly more subservient than are some presidential congressional supporters. While in Theodosian days men were executed as traitors for refusing to go along with the program, in our days, political vengeance is visited, either by denying patronage, or by social ostracism, or by active opposition at the polls against recalcitrant lawmakers. President Theodore Roosevelt was one of the early exponents of these measures of [p. 96] compulsion. This, in effect, is some more Emperor absorption of the legislative powers, the lex regia concept of Rome.
One item more, before I close—
And I may as well here as anywhere, tell you that, in my opinion, built from observation over the years, when the true history of our detours from constitutional government, is written, it will be found that they were largely conceived and put in motion by European political emigres, who were trained in the Civil Law and thoroughly converted to the lex regia concept of the Institutes. They have been aided and abetted by certain fellow travelling liberals, among them being those who have been trying to destroy the right and tradition of the Supreme Court of the United States to declare laws unconstitutional. They are gradually—not too gradually—trying on us all the tricks the Roman Emperors used in order to hold their autocratic power, in an effort to build here alex regia concept either through a dictator or through a socialized, Sovietized government that will establish the same sort of society. [See P. 222, footnote 12, 13.]
War Powers of President. One of the most relied upon shibboleths of those augmenting the executive power is the war powers of the President. When, during a war, all else fails to justify some proposed unconstitutional course, the emigres and their fellow travellers fall back upon the war powers of the President.
But there is no magic in this phrase. As a matter of fact and of law, there are almost no Presidential war powers in the sense in which these political emigres and their fellow travellers use it, that is, a source of power inherent in the President as President and awakened by the fact of war. A short explanation will make this clear.
As a matter of fact and of law the President of the United States is a dual personality. He is the Chief Executive charged with executing the laws of the country and he is Commander in Chief of the Army and Navy of the United States. The problem is simplified if you think of the presidential powers as lodged in two persons,—one the Chief Executive, and the other the Commander in Chief.
As Chief Executive he enforces the laws of the land, passed by Congress or coming in by treaty, which latter, the making of treaties, seems to be the only law-making participation given to the Chief Executive by the Constitution, except the power of veto and the power to recommend legislation just mentioned. The war powers are in Congress which is given the exclusive power under the constitutional provision: [p. 97]
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
These are the war powers prescribed by the Constitution and they are all in Congress. But when that body passes laws to implement these powers, then the execution of these laws becomes the duty and responsibility of the Chief Executive, and the powers granted by such laws, and only those so granted, constitute the war powers of the President as Chief Executive. But none of such powers are inherent in the office of the Chief Executive. Obviously, in addition to these war powers so granted by Congress, the Chief Executive has all the peace-time powers with which either the Constitution or the Congress endows him.
But as our laws show, such Chief Executive powers (conferred upon him by Congress in time of war) may be of the widest scope, including provisions derogatory and even largely destructive of the ordinary peacetime civil rights of individuals . . . .
So much for the war powers of the President as Chief Executive.
There is no imperial lex regia concept in all this. It is directly contrary thereto.
As to the duties of the President as Commander in Chief of the Army and Navy of the United States, without going into great detail it may be observed that a commander in chief is appointed (as history irrefutably shows) for the conduct of belligerent operations of armies in the field; and to this end the commanders in chief have been given by their sovereigns very large executive, judicial, and legislative powers over occupied enemy territory. But to assume from the existence of these powers in occupied enemy territory that a commander’s [p. 98] commission also endows him with like powers in the matter of the local government of his own country, powers which to be operative must supplant the sovereignly established constitutional order, with a new and different concept, is to adopt a politically unsound theory and to ignore elemental historical facts of all civilized governments, autocratic or democratic, the world over. When the Commander in Chief assumes these latter powers, he becomes a usurper.
If time permitted we might discuss other devices that were part and parcel of the imperial Roman technique used to maintain the lex regia concept of that government, and to keep the Emperor in power. I will merely name one more:
There was the buying of the support of the Roman people by giving them elaborate banquets, by the distribution of foodstuffs free, by providing the people with magnificent amusements, such as gladiatorial fights, fights between wild animals, and between savage beasts and humans (such as throwing Christians to hungry lions), by providing numerous and prolonged holidays, crowded with amusements of various kinds (we talk about recreation), by the triumphs of victorious generals in which the generals, ambitious and bidding for popular support looking towards power and lucrative office, provided all the foregoing. All this was done without cost to the people. Run over in your minds our own present situation, and figure how much government is giving the people, and the results of the policy. (J. Reuben Clark, CN-11/29/52)
Legal Profession Responsible. Why have we sat idly and endured these unconstitutional practices instead of taking them to the courts for correction? Well, there are several answers to the question:
In the first place, I think the legal profession must assume a great, if not indeed the major, part of the responsibility. The approach of the alien influence was gradual; the full meaning of the plan was not at first perceived. Accustomed to dealing with legislative and quasi-legislative enactments that, by design, were to fall within the Constitution, the lawyers so treated these new enactments and sought rather ways of constitutionally justifying the usurping enactments, than of attacking them as unconstitutional. Then the enactments began in the midst of a great depression, and the lawyers were inclined to wink at usurpations in the hope that somehow they would pull us out of our troubles. This feeling was encouraged by the easing up in enforcement procedures or the writing of a new prescription, whenever popular outcry became too threatening. Then as time [p. 99] went on, and the plan developed, the lawyers became fearful of governmental retaliation if the enactments were contested. Finally, they seem to have given up the fight, and to take as constitutional every law, every “directive” or other enactment that appears. They have advised their clients to bow their heads and bend their backs to every imposition that came.
This attitude of the lawyers was aided by the plans of the perverters of our institutions, who, so authentic reports say, aimed to keep these “directives” and other enactments out of the courts, because they thoroughly understood the principle of our jurisprudence that laws and their implementing regulations are enforced as constitutional until they are declared otherwise. Therefore, so long as these enactments could escape adverse judicial action, they could be enforced. In effect, the lawyers and the perverters worked together just as harmoniously and effectively as if they had reached an understanding thereto.
Another factor in the situation was this: From the time since our national emergency arose, the courts have let every intendment run in favor of the Government.(37) (J. Reuben Clark, 10/7/43)
Unconstitutional Laws Not Binding. It is said in the Doctrine and Covenants, that he that keepeth the laws of God, hath no need to break the laws of the land. It is further explained in section 98, what is meant in relation to this. That all laws which are constitutional must be obeyed, as follows:
And now, verily I say unto you concerning the laws of the land, it is my will that my people should observe to do all things whatsoever I command them.
And that the law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me;
Therefore I the Lord justify you and your brethren of the Church in befriending that law which is the constitutional law of the land. And as pertaining to laws of man, whatsoever is more or less than these cometh of evil.
That is, taking this nation as an example, all laws that are proper and correct, and all obligations entered into which are [p. 100] not violate of the constitution should be kept inviolate. |
