Every time someone writes or speaks about the founding documents
(plural) of the United States of America, about the Founding Fathers who
were not at the 1787 Constitutional Convention, or about a “higher law”
which demands allegiance over the Constitution of the United States of
America, I pause with concern for my country and for teachers of
American history. Some elementary understandings:
I. The Constitution
There is only one founding document for the United States. It is the
Constitution. The founding document of the United States is not the
Bible, the Magna Carta, the Mayflower Compact, the various state
constitutions, the Declaration of Independence, or The Federalist
papers--each of which are historical documents relating to other events.
For example, the Declaration of Independence did not found the new
government; it declared the colonies independent states. The founding
document of the United States of America is its Constitution.
II. Founding Fathers
Webster’s dictionary defines Founding Fathers as those 55 men who were
at the 1787 Constitutional Convention and were responsible for the
resulting written document upon which the federal government for the
United States is founded. For example, it is incorrect to refer to
either Noah Webster, John Jay, or Thomas Jefferson as a “Founding
Father.” They were not at and did not participate in the Convention.
III. The Supreme Law of the Land
The Constitution is not God; but, it is a written description of
political rules for a system of government and of a social contract for
a civil society without which anarchy would prevail. You may believe
what you will about God; but, in the United States of America, the
supreme law of the land is its Constitution.
1. Article VI (as written by the Founding Fathers): “This Constitution
... shall be the supreme law of the land ... .”
2. In case you still have any doubt about the meaning of the Founding
Fathers in regard to the supremacy of the Constitution, here is what
they clearly wrote in plain English--and what the American people
approved in 1788: “This Constitution, and the laws of the United States
which shall be made in pursuance [conformity] thereof; and all treaties
made, or which shall be made, under the authority of the United States,
shall be the supreme law of the land; and the judges in every State
shall be bound thereby, anything in the Constitution or laws of any
State to the contrary notwithstanding.”
With all due respect to the wording of the Founding Fathers, allow me to
emphasize their position without changing their meaning by placing the
word notwithstanding (legalese for “in spite of”) where it should have
been placed: “This Constitution ... shall be the supreme law of the
land; and the judges in every State shall be bound thereby,
notwithstanding [in spite of] anything in the Constitution or laws of
any State to the contrary.”
IV. Checks and balances--judicial review
“If men were angels, no government would be necessary. If angels were to
govern men, neither external nor internal controls on government would
be necessary. In framing a government which is to be administered by men
over men, the great difficulty lies in this: you must first enable the
government to control the governed, and in the next place oblige it to
control itself.” James Madison, Federalist No. 51.
The Founding Fathers created a government with three branches: the
legislative, the executive, and the judiciary--a separation of powers.
The Congress creates the laws. The Executive administers the laws. The
First Congress, through the Judiciary Act of 1789, acknowledged the
constitutional authority of the Supreme Court of the United States to
rule on the constitutionality of laws passed by the states and, by
implication, acknowledged the authority of the Supreme Court to
interpret the meaning of the Constitution. In 1803 the Supreme Court
exercised its power in Marbury v. Madison to overturn, as
unconstitutional, a law passed by Congress. (Read the book Decision in
Philadelphia by Collier and Collier.)
V. Marbury versus Madison (1 Cranch 137, 1803)
“The government of the United States has been emphatically termed a
government of laws, and not of men.”
“The Constitution vests the whole judicial power of the United States in
one supreme court.”
“The powers of the legislature are defined and limited; and that those
limits may not be mistaken or forgotten, the Constitution is written.”
“Certainly, all those who have framed written constitutions contemplate
them as forming the fundamental and paramount law of the nation, and,
consequently, the theory of every such government must be, that an act
of the legislature [Congress] repugnant to the Constitution is void.”
“It is emphatically, the province and duty of the judicial department to
say what the law is.”
“We have deemed the greatest improvement on political institutions, [to
be] a written constitution.”
“In declaring what shall be the supreme law of the land, the
Constitution itself is first mentioned, and not the laws of the United
States generally.”
“Thus, the particular phraseology of the Constitution of the United
States confirms and strengthens the principle, supposed to be essential
to all written constitutions, that a law repugnant to the Constitution
is void and that courts, as well as other departments, are bound by that
instrument.”
VI. Amendments to the Constitution
Amendments rewrite the Constitution in accordance with its own rules and
with the intentions of the Founding Fathers.
1. The Tenth Amendment was added to the Constitution in 1791 and
described the rights of individual states. It is important to note that
it obviously did not alter the significance of the Judiciary Act of
1789, lessen state responsibility to the federal government, or impact
the significance of Marbury v. Madison.
2. The Fourteenth Amendment, adopted in 1868 with the approval of
Congress and the American people, significantly changed the
Constitution. It was added (after the Civil War) to further insure that
the states would be subject to the Constitution and that liberties
provided to American citizens by the Constitution applied to every
person and could not be denied by any state without due process of law.
Conclusion: The supreme law of the land is the Constitution for the
United States of America. Do you understand why I am persuaded? Because
the original Constitution and the Constitution as amended say absolutely
nothing about establishing anything other than the written Constitution
itself as supreme authority--such things as God, the Bible, and
Christianity are not even mentioned. As for religion, the original
Constitution did mention it--one time; the Founding Fathers wrote in
Article VI: “No religious test shall ever be required.”
I pledge allegiance to the flag of the United States of America and to
the republic for which it stands, one nation, indivisible, with liberty
and justice for all.
Copyright 1997 Gene Garman