What is the Constitution?

Posit: The United States is not a democracy but a Constitutional Republic.  A democracy is that the people are governed by the will of the people--by common consent.  As a republic, we elect representatives to govern.  Then what of the Constitution?  What is, in fact, its role?

Is it the foundation upon which we build our laws?  That is, after all, what I got out of school.  We have a Constitution as a starting point and then we build our laws on top of it.  This common perspective is in fact in error.

The role of the Constitution is to constrain or temper the reach of both the governing and the governed. It places bounds of higher law above acts of governance and above the will of even a popular majority.

That means that even a 95% popular vote cannot be enacted if it runs counter to the Constitution.  An interesting point to consider the wisdom of the founding fathers to protect us from ourselves.

Even more completely, the Constitution constrains the acts of government by outlining how the government will function and its three-way division of powers, as well as defining the line across which government cannot in anyway cross.  Let us consider then the Second Amendment rights that have recently come under consideration, since it is concise and should be clear cut:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.


For purposes of this discussion, common understanding of a couple of words is of import.  Militia, particularly a well regulated one, is often thought to mean only our National Guard, also referred to as citizen soldiers.  Militia in short includes every citizen and is distinguished from the paid standing army as volunteers.  They are a last line of defense against aggressors of home, life, and liberty.

Reading of the second line we may understand 'regulated' means organized and managed and does not include the power to disarm, or even limit the type number or size of arms as per the second line.  Re-read the Amendment.  The first line empowers the government to regulate the militia while the second line limits the degree to which that regulation can be imposed. (For a treatise on the matter please see http://guncite.com/journals/reycrit.html among any others.)  Such is typical of the Bill of Rights.  They exist in part to limit government and establish a bulwark against which neither government nor popular vote can pass.

While it is the roll of the Judiciary and no other body to interpret the meaning or intent of the Constitution and allow or reject statutes and legislation accordingly, for our purposes here, let us take infringed literally.  (Support for the meaning the Founding Fathers intended can be had in their own words here.)

Therefore:  Can any legislative body in the name of regulation, infringe a citizen's right to keep and bear arms?  Can an executive order establish as law the will of a President without due process of Congress?

In the late 1800's towns began passing laws prohibiting the bearing of arms within the city limits.  While doing so may have been legal--as per the laws and statutes of the town charter, was it Constitutional? When townspeople complied thinking it a good idea, did they in fact voluntarily abdicate their Constitutional right?  Would a citizen have been within his rights, per the Second Amendment not to comply without fear of reprisal?  While the government can legally prohibit felons from keeping and bearing arms, as long as they are citizens and taxed is it Constitutional?  Is an American citizen bound by any law or statute or executive order that is unconstitutional?

The Supreme Court offered a less than concrete ruling,  (see "The Constitution of the United States, Analysis and Interpretation, 2008 Supplement (Senate document 110-17)". p. 83.), therefore only a different ruling could say otherwise.  Such is the power of the Supreme Court.

Hense the slippery slope--if any body can be excluded from the unalienable rights of the Constitution, then everybody can, eventually.  While certain laws may seem to make good sense, are they worth it?