Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence
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  Article I §§ 1‑7  
 
 
"[T]o understand biblical theology we must start at the beginning, with what God did first. Then we should move on through the Bible, following its own time sequence and interpretation of God’s supernatural interventions. . . .  Unfortunately the church has seldom followed this approach . . . " 1
 
 

Article I § 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Although slavery is rightly said to be the "cancer of the Constitution", 2 the Constitutional Convention of 1787 almost disbanded prematurely not about slavery, but about how the federal (meaning general) 3 legislature would be composed. The argument was largely about whether the new Constitution would define a nation, or a confederacy. If it would define a confederacy, then officials in the respective States should elect the general legislature. If it would define a nation, then the individual citizens within the States should elect the general legislature. The framers eventually agreed on a compromise – commonly known as the Great Compromise 4 – in which one house would be elected by officials within the respective States, and the other house would be elected by the individual citizens within the States. 5 This shows that the original intent of the framers was that the united States should be neither strictly a confederation, nor strictly "one nation", but should have traits taken from each 6 – a confederate republic.

From the perspective of the global covenant, we see nothing inherently wrong with this kind of bicameral legislature, or with a confederate republic.

Article I § 2 clause 1:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

This indicates that the House of Representatives created by the Constitution would be elected by the citizens within the respective States, thereby fulfilling the national / republic side of the Great Compromise. From the perspective of the global covenant, we see nothing inherently wrong with this kind of bicameral legislature.

Article I § 2 clause 2:

No Person shall be a Representative who shall not have attained to the Age of twenty‑five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that state in which he shall be chosen.

From the perspective of the global covenant, we see nothing inherently wrong with this kind of bicameral legislature.

Article I § 2 clause 3:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

This is about apportioning Representatives and direct Taxes according to population, thereby defining how members of the House would be popularly elected, and a certain kind of tax would be collected. There is only one thing that’s obviously objectionable about this. It pertains to the manner in which the "respective Numbers" of the populations of the "several States" are determined. It says each state’s population is to be determined by counting "free Persons" (which includes indentured servants); 7 totally "excluding Indians" if they are "not taxed" as citizens; 8 and counting "three fifths of all other Persons". The "all other Persons" are slaves. 9 So they planned on counting each slave as three fifths of a human being, three fifths of "free Persons". This scheme is commonly known as the "three-fifths compromise". Without it, it’s highly unlikely that the united States would exist, because it’s highly unlikely that the Constitution would have been ratified. So the Constitution legitimized slavery. Slavery is institutionalized bloodshed. So here in the first Article of the Constitution, we find a serious violation of the global covenant. 10 Providentially, this country fought an extraordinarily bloody war, in part, to resolve this issue. Some people claim that the War Between the States was fought to preserve the Union. 11 Other people claim the War Between the States was fought to exercise the States’ right to secede. But the fact is that if slavery did not exist, there would have been no pressure to eliminate slavery, and there would have been virtually no reason to secede, and therefore no reason to force States not to secede. — So this legalization of bloodshed has been providentially eliminated from the Constitution, through warfare and amendment.

The original intent of the framers was apparently to provide a compromise by which the thirteen independent States could function as a unit. This compromise failed miserably to address underlying problems, and it served merely to postpone addressing such problems until they became unavoidably ripe. So the original intent was not particularly admirable. The resulting problems almost totally destroyed the Constitution.

Not all the framers were content to allow slavery to continue. On August 22, 1787, George Mason delivered a jeremiad to the Convention that lasted for over an hour. It contained the following excerpt:

This infernal traffic originated in the avarice of British merchants. The British government constantly checked the attempts of Virginia to put a stop to it. The present question concerns not the importing States alone, but the whole Union. The evil of having slaves was experienced during the late war. Had slaves been treated as they might have been by the enemy, they would have proved dangerous instruments in their hands. But their folly dealt by the slaves as it did by the Tories. He mentioned the dangerous insurrections of the slaves in Greece and Sicily, and the instructions given by Cromwell, to the commissioners sent to Virginia, to arm the servants and slaves, in case other means of obtaining its submission should fail. Maryland and Virginia, he said, had already prohibited the importation of slaves expressly. North Carolina had done the same in substance. All this would be in vain, if South Carolina and Georgia be at liberty to import. The western people are already calling out for slaves for their new lands, and will fill that country with slaves, if they can be got through South Carolina and Georgia. Slavery discourages arts and manufactures. The poor despise labor when performed by slaves. They prevent the immigration of whites, who really enrich and strengthen a country. They produce the most pernicious effects on manners. Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities. 12

Slavery has been followed by a chain of sins, accompanied by a chain of calamities. The consensus at the Convention insisted on protecting it. They believed that the general government "would have no responsibilities concerning it, except for the one specified matter of international slave trade.". 13

The remainder of Article I § 2 clause 3 contains more guidelines for the House of Representatives. We can find nothing objectionable there. 14

Article I § 2 clause 4:

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

From the perspective of the global covenant, we see nothing inherently wrong with this kind of bicameral legislature.

Article I § 2 clause 5:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

From the perspective of the global covenant, we see nothing inherently wrong with this kind of bicameral legislature.

Article I § 3:

We find nothing objectionable about the framers’ original intent in any of the clauses in Article I § 3. Even so, Clause 1,

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

has been superseded by the 17th Amendment. 15 So as of May 31, 1913, senators of the general government are no longer elected by the State legislatures. Instead, they are "elected by the people" of each State. By itself this is certainly no violation of the global covenant. So on that basis we have no objection to the 17th Amendment, or to anything about the way Article I § 3 or Amendment 17 have been implemented. Even so, the election of senators by the State legislatures was part of the Great Compromise that allowed the Constitution to come into existence. The Great Compromise allowed the retention of features of the Articles of Confederation. The election of senators of the general government by State legislatures was a way for the States to retain a degree of autonomy. People who wanted a strong national government wanted to turn the States into nothing more than administrative provinces. 16 People who wanted local control of government objected to that degree of "consolidation", that degree of centralization of authority. — A large measure of trouble came to us by way of the fact that slave owners were the biggest voices for local control and state autonomy. They used their preference for local control to hide their bloodshed behind a veil of legitimacy. The biggest voices for nationalization, turning States into administrative provinces, were people most concerned about accumulation of wealth and interstate/international commerce. When the slave owners were defeated in the War Between the States, not only was slavery defeated, but so was the doctrine of State’s rights, and the commitment to local control of government. — But slave owners are not the only people to ever prefer local control of government. People generally want government that doesn’t abuse their rights. Since the South was collectively committed to abusing the rights of slaves, and since the South was collectively committed to State’s rights, it was naturally assumed that the general government would not abuse individuals as much as these slave States. History tells us that that is, in fact, the truth. Even so, all other things being equal, local control of government is better. This is because people need to control those things that government does that impact them directly. If the things that impact them directly derive from Washington, D.C., then practically no one in the hinterlands has any control over them. The only control is in the elections of the general government and letter writing to legislators of the general government. In general elections, millions of people vote, which means that one person has a paltry impact, an almost non-existent degree of influence. Therefore, the things that government does that impact people directly need to be controlled by those people locally. Doing so does not make allowances for slavery or Jim Crow laws. So when the 17th Amendment eliminated election of senators by State legislatures, and made them elected by the general population, this was another step towards conversion of the States into administrative provinces funded and controlled by the central government, a step towards elimination of local control, under the guise of "democracy" – a consolidation of national power by political elites who understood enough about mass action to be confident that they could manipulate elections. — All other things being equal, a step away from local control is a step away from people’s consent as the sovereign power in government. It might not be bloodshed, but it’s not particularly smart, because it produces circumstances in which bloodshed is almost inevitable, usually perpetrated by the governors in distant D.C.

Article I §§ 4, 5, 6, 7:

We find nothing objectionable about Article I §§ 4, 5, 6, 7. From the perspective of the global covenant, there is nothing inherently wrong with them.

Footnotes

1The Unity of the Bible, p. 100. — Please note that "biblical theology" "has a technical meaning in theological studies. It is the larger category that contains both Old Testament theology and New Testament theology" (Systematic Theology, p. 22). "Old Testament theology", "New Testament theology", and "biblical theology" "organize their topics historically" (p. 22, Systematic Theology). So when Fuller says, "we must start at the beginning", and "the church has seldom followed this approach", he’s apparently saying that not even the field that is presumably dedicated to taking this approach has been taking this approach.

2The Oxford Companion to the Supreme Court of the United States, p.380, "History of the Court: Establishment of the Union", by William M. Wiecek.

3"Federal" is a word whose meaning has changed over time. Immediately after the attendees approved the Constitution, on September 17, 1787, a "federalist", in common parlance, was someone who wanted a stronger confederation. Since the War Between the States, the "federal government" is essentially synonymous with what was once known as the "general government", and is now also known as the "national government".

The process of national consolidation has caused many people to assume that we have a single central government based in Washington, D.C., and all State and local governments are little, if anything, more than administrative provinces of this all-powerful central government. This overarching government is often called the "federal government". In fact, "federal" was originally used by the framers to refer to the system they created, which was not a consolidated nation that had administrative provinces, but instead, a confederate republic, in which the States and the people retained most of their sovereignty. Under their design, "federal" referred to the confederate republic, not to a consolidated nation. In terms of de facto law, we no longer have a "federal" system, but a consolidated nation with administrative provinces. "General government" was the expression used to refer to the limited government that was based in D.C. To avoid this misuse of the word "federal", we will call the government based in D.C. the general government. For the sake of the de jure law, we’ll call the whole system "Federal", not just the monolithic, centralized government.

4"The Constitution of 1787 was a sheaf of compromises, the most fundamental involving the nature of the Union it created. One view, later expressed by Jefferson and Madison in the Virginia and Kentucky Resolutions of 1798 and 1799, held that the states remained substantially sovereign, creating a national government of limited and delegated powers while reserving to themselves all residual powers of sovereignty. The textual basis of this position was the Tenth Amendment. The contrasting position maintained that, as Marshall put it in McCulloch [(McCulloch v. Maryland)], ‘the government of the Union, though limited in its powers, is supreme within its sphere of action’ (p. 405). The textual source for this view was the Supremacy Clause of Article VI." — The Oxford Companion to the Supreme Court of the United States, p. 376, "History of the Court: Establishment of the Union", by William M. Wiecek.

5See Amendment 17, URL: ./0_C_Am_XI-XXVII.htm​#GreatComp, to see how this arrangement was changed in 1913.

6The Anti-Federalist Papers and the Constitutional Convention Debates, (i)pp. 31-34, letter from "James Madison to George Washington (April 16, 1787)"; (ii)pp. 35-39, "The Virginia Plan (May 29)"; (iii)pp. 39-41, "Debate on Representation (May 31)"; (iv)pp. 49-53, "Electing Representatives (June 6)"; (v)pp. 54-58, "Debate on Method of Electing Senators (June 7)"; (vi)pp. 62-65, "The New Jersey Plan (June 15)"; (vii)pp. 65-70, "Debate on the New Jersey Plan (June 16)"; (viii)pp. 70-79, "Plan for National Government (June 18)"; (ix)pp. 79-86, "Opposition to the New Jersey Plan (June 19)"; (x)pp. 86-89, "Debate on Federalism (June 21)"; (xi)pp. 89-92, "Length of Term of Office for Senators (June 26)"; (xii)pp. 92-109, "Debate on State Equality in the Senate (June 28-July 2)".

7That is, "those bound to Service for a Term of Years".

8If someone is not taxed as a citizen, then it’s not reasonable to assume that such person is, in fact, a citizen, no matter what ethnic group he/she may be from.

9For some reason, the framers must have had some aversion to actually saying the word, "slaves", here. Saying "all other Persons" instead of "slaves" must have been a type of 18th century "political correctness". For more on this, see "Federalist #54", Madison’s apology for counting slaves in this scheme. (The Federalist Papers, pp. 336-341, "No. 54: Madison". See pdf at Liberty Fund, URL: http://files.libertyfund.org/​files/​788/​0084_LFeBk.pdf, or the Constitution Society, URL: http://www.constitution.org/​fed/​federa54.htm.).

10See this inventory’s Article VI, URL: ./0_5_Art_IV-VII.htm​#Article6, for an explanation of why this Constitution can lawfully implement only the global covenant, and not the local Covenants also.

11"My paramount object in this struggle is to save the Union. . . If I could save the Union without freeing any slave, I would do it; and if I could save it by freeing all the slaves, I would do it; and if I could save it by freeing some and leaving others alone, I would also do that. . . I have here stated my purpose according to my views of official duty and I intend no modification of my oft-expressed personal wish that all men everywhere could be free." — Letter from Abraham Lincoln to Horace Greeley, 22 Aug. 1862. (Oxford Dictionary of Quotations, 3rd Edition, p. 314. Verify at Library of Congress, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=mal&​fileName=mal2/​423/​4233400/​malpage.db.) — See this inventory’s Article II § 2, URL: ./0_3_Art_II.htm​#Article2Sec2Cl1.

12See 5 Elliot’s Debates 458, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=lled&​fileName=005/​lled005.db&​recNum=479&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28ed005176%29%29%3A%230050145&​linkText=1, / 2 Ferrand’s Records 370, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=llfr&​fileName=​002/​llfr002.db&​recNum=375&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28fr0022%29%29%230020003&​linkText=1, / Madison’s Notes, August 22, 1787, URL: http://www.constitution.org/​dfc/​dfc_0822.htm. — It’s important to note that this slavery issue was the reason that George Mason and other delegates at the 1787 Convention refused to sign the Constitution.

13The Oxford Companion to the Supreme Court of the United States, p.380, "History of the Court: Establishment of the Union", by William M. Wiecek.

14For more on "direct Taxes", see this inventory’s Article I § 8 cl 1, URL: ./0_2_1_0_Art_I_Sec_8_Cl_1.htm​#Article1Sec8Cl1.

15URL: ./0_C_Am_XI-XXVII.htm​#GreatComp.

16"[A]dministrative provinces" is the expression used on p. 50 of Graham’s Principles of Confederacy. It describes the "consolidated national government" proposed by Alexander Hamilton in his plan presented to the Convention on June 18, 1787. See The Anti-Federalist Papers and the Constitutional Convention Debates, pp. 70-79, "Plan for National Government (June 18)". — Also see 5 Elliot’s Debates 198-205, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​lled&​fileName=​005/​lled005.db&​recNum=​219&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28ed005176%29%29%3A%230050145&​linkText=1, 1 Ferrand’s Records 282-293, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​llfr&​fileName=​001/​llfr001.db&​recNum=​311&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28fr0012%29%29%230010003&​linkText=1, Madison’s Notes, June 18, 1787, URL: http://www.constitution.org/​dfc/​dfc_0618.htm, 1 Elliot’s Debates 417-423, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​lled&​fileName=​001/​lled001.db&​recNum=​432&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28ed0011%29%29%230010001&​linkText=1 ("Yates’ Minutes", June 18, 1787), and 1 Ferrand’s Records 294-301, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​llfr&​fileName=​001/​llfr001.db&​recNum=​323&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28fr0012%29%29%230010003&​linkText=1.

 
 
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