Constitutionalism: Ancient and Modern by Charles McIlwain


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http://www.constitution.org/cmt/mcilw/mcilw.htm

"The history of constitutionalism remains to be written."

"THE TIME seems to be propitious for an examination of the general principle of constitutionalism — our own Anglo-Saxon brand of it in particular — and an examination which should include some consideration of the successive stages in its development. For perhaps never in its long history has the principle of constitutionalism been so questioned as it is questioned today, never has the attack upon it been so determined or so threatening as it is just now. The world is trembling in the balance between the orderly procedure of law and the processes of force which seem so much more quick and effective. We must make our choice between these two, and it must be made in the very near future. If we are to make that choice intelligently it would seem reasonable, whether in the end we decide for law or for force, that we should retrace the history of our constitutionalism — the history of force is plain enough — should try to estimate its past achievements, and should consider the nature and effects of the forces which have been arrayed against it. This I propose to try briefly to do and as dispassionately as I can, though it is only fair that I should frankly confess at the outset that my own personal convictions are overwhelmingly on the side of law and against

force."

This book was exceptionally influential in providing me with the scope and

difficulty of creating and keeping a constitutional Republic.

A...

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Thank you for the linked material. It was (always is) profoundly sad to see James Otis mentioned, as he certainly should be in a fair survey of constitutional thinking. Likewise, the singular legacy of Thomas Paine, set forth in The Rights of Man, was properly acknowledged, but severely garbled by selectively quoting only eight words -- and those eight merely an overture.

Here's what Paine wrote. I have bolded the essential proposition.

A Constitution is a Thing antecedent to Government, and a Government is only the Creature of a Constitution. The Constitution of a Country is not the act of its Government, but of the People constituting a Government. It is the Body of Elements to which you can refer and quote article by article; and which contains the principles upon which the Government shall be established, the manner in which it shall be organized, the powers it shall have, the Mode of Elections, the Duration of Parliaments, or by what other name such Bodies may be called; the powers which the executive part of the Government shall have; and, in fine, every thing that relates to the compleat organization of a civil government, and the principles upon which it shall act, and by which it shall be bound.

Paine wrote those words in 1791 in hindsight, an account of what had been achieved in America in 1787-88. There was no other, previous example of a People constituting a Government -- not Magna Carta, nor Cromwell's "commonwealth", nor ancient Rome. Subsequent written constitutions (in the Soviet bloc especially) were meaningless eyewash, ratified by dictatorial one-party fraud. The constitution of Zimbabwe is a particularly ridiculous hoax.

I do not mean to disparage the British constitutional system that evolved and spread throughout its former Empire to the great benefit of people in Australia, New Zealand, Canada, Ireland, and to a lesser extent India and Jamaica. The rule of law and adversarial justice were laudatory British inventions that enabled the American colonies to thrive and prosper.

But nowhere else and at no other time in human history was there a new nation brought into being like the United States of America as a result of long, careful and spirited public debate, decentralized ratification, and a leisurely opportunity to create something entirely without precedent. That we lost our way and abandoned the U.S. Constitution of 1789 -- by expedient amendment, profligate legislation and bizarre re-re-interpretation -- has so sickened the American people that they are no longer capable of reading any document and saying what their Government may or may not do.

All constitutional history began and ended in the 18th century.

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But nowhere else and at no other time in human history was there a new nation brought into being like the United States of America as a result of long, careful and spirited public debate, decentralized ratification, and a leisurely opportunity to create something entirely without precedent. That we lost our way and abandoned the U.S. Constitution of 1789 -- by expedient amendment, profligate legislation and bizarre re-re-interpretation -- has so sickened the American people that they are no longer capable of reading any document and saying what their Government may or may not do.

All constitutional history began and ended in the 18th century.

Given the bizarre interpretation of the Interstate Commerce Clause by the Supreme Court in the Wichard case during the New Deal there is literally no issue on which Congress may not legislate. There is no more limitation to legal power and the only restraint in and on our government is Political. In short, we have permitted the bastards to do anything they can get away with.

Ba'al Chatzaf

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Filburn is not just a name on a decision.

He was a living breathing individual,who gallantly fought for all of us and our private economic activity.

He also set up The Filburn Foundation, see link below.

http://thefilburnfoundation.com/#

"Facts

The Agriculture Adjustment Act of 1938 (AAA) set quotas on the amount of wheat put into interstate commerce and established penalties for overproduction. The goal of the Act was to stabilize the market price of wheat by preventing shortages or surpluses. Filburn (P) sold part of his wheat crop and used the rest for his own consumption. The amount of wheat Filburn produced for his own consumption combined with the amount he sold exceeded the amount he was permitted to produce.

Secretary of Agriculture Wickard (D) assessed a penalty against him. Filburn refused to pay, contending that the Act sought to limit local commercial activity and therefore was unconstitutional because it exceeded the scope of Congress’s power under the Commerce Clause.

Filburn brought this lawsuit seeking to enjoin enforcement of the Act and a declaratory judgment that the wheat marketing provisions of the AAA were unconstitutional for exceeding the scope of Congress’s commerce power. The court below, a district court panel of three judges, entered judgment for Filburn and the Supreme Court granted cert."

This is an excellent resource page on their website:

http://thefilburnfoundation.com/details.html

Forgot I had this Filburn Foundation bookmarked.

A...

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There is a video of the Filburn farm as it is today in Ohio.

"Roscoe Curtiss Filburn had a 95-acre farm near Dayton, Ohio where he grew wheat; raised poultry and dairy cows; and sold milk and eggs.

During the fall of 1940, he planted 23 acres of wheat which was to be used to make bread for his family, feed his livestock and provide seed for the following season.

Under the Agriculture Adjustment Act of 1938, Roscoe was allotted to plant 11.1 acres of wheat at a yield of 20.1 bushels per acre.

In July 1941, the extra planting (11.9 acres) yielded 239 bushels of wheat. He was fined 49 cents per bushel ($117.11). Roscoe refused to pay and filed suit in the Federal District Court, asking the court to declare the farm marketing excess penalty violated his right to due process under law. Also in dispute was the wheat growers' referendum passed in May 1941 which increased the fine from 15 cents to 49 cents on crops that had been planed months before. The district court ruled in Filburn's favor and limited the fine to 15 cents per bushel; however, the Secretary of Agriculture, Claude Wickard, appealed this decision to the U.S. Supreme Court.

Filbrun Lane
The yellow house once owned by the Filburn family remains at 5150 Denlinger Road just north of Shiloh Springs Road. Most of the land was sold in 1966 for the development of a residential area adjacent to the Salem Mall which opened that year.

A street on the land was named Filbrun Lane in his honor. You will notice the spelling of his last name changed; something he did years after losing the Supreme Court case. Family genealogy records indicate many spellings of the Filburn name including Filbrun and Fillbrunn. His father was Martin Filbrun, his grandfather was Joseph and great-grandfather was Johann Peter Fillbrunn (Peter Fillbrun), who immigrated from Germany in 1818, and from whom all Filbruns in the United States descend.

Roscoe pursed other interests including buying The Beverly Shop in nearby Brookville, Ohio which he managed with his wife, Virginia. They had two children - Mary Lou and Roscoe Jr. (Tommy). He is described by his family as a proud, hard working man.

For more information about Roscoe, please check out this excerpt from "A Fillbrunn Family History - Various Members of the Families Filbrunn, Filbrun, Filburn, et al from 1570 to 1985." Additional information can be found at www.filbrun.com."

Filburn's Farm Today - View Larger Map of Trotwood, OH

http://thefilburnfoundation.com/filburnsfarm.html

A...

Beau geste, Roscoe Filburn...

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The Articles of Confederation of the United Colonies of New England; May 19, 1643
The Articles of Confederation between the Plantations under the Government of the Massachusetts, the Plantations under the Government of New Plymouth, the Plantations under the Government of Connecticut, and the Government of New Haven with the Plantations in Combination therewith...

http://avalon.law.yale.edu/17th_century/art1613.asp

The British colonists in America had over 100 years of trials and errors in creating compacts of association. The Avalon Project of the Yale Law School Library is a treasury of legal documents from ancient times to modern.

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The Articles of Confederation of the United Colonies of New England; May 19, 1643
The Articles of Confederation between the Plantations under the Government of the Massachusetts, the Plantations under the Government of New Plymouth, the Plantations under the Government of Connecticut, and the Government of New Haven with the Plantations in Combination therewith...

http://avalon.law.yale.edu/17th_century/art1613.asp

The British colonists in America had over 100 years of trials and errors in creating compacts of association. The Avalon Project of the Yale Law School Library is a treasury of legal documents from ancient times to modern.

Winthrop, Winslow, Bradford, Mather, and their ilk were autocrats and authors of King Philip's War and the Salem Witch Trials. They were slavers and tyrants aligned with Cromwell, and the Confederation signed in 1643 was a religious pact to seize land and commit murder.

"Mr. Burroughs was carried in a Cart with others, through the streets of Salem, to Execution. When he was upon the Ladder, he made a speech for the clearing of his Innocency, with such Solemn and Serious Expressions as were to the Admiration of all present; his Prayer (which he concluded by repeating the Lord's Prayer) [as witches were not supposed to be able to recite] was so well worded, and uttered with such composedness as such fervency of spirit, as was very Affecting, and drew Tears from many, so that if seemed to some that the spectators would hinder the execution. The accusers said the black Man [Devil] stood and dictated to him. As soon as he was turned off [hung], Mr. Cotton Mather, being mounted upon a Horse, addressed himself to the People, partly to declare that he [Mr. Burroughs] was no ordained Minister, partly to possess the People of his guilt, saying that the devil often had been transformed into the Angel of Light. And this did somewhat appease the People, and the Executions went on; when he was cut down, he was dragged by a Halter to a Hole, or Grave, between the Rocks, about two feet deep; his Shirt and Breeches being pulled off, and an old pair of Trousers of one Executed put on his lower parts: he was so put in, together with Willard and Carrier, that one of his Hands, and his Chin, and a Foot of one of them, was left uncovered." [Robert Calef]

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I did not suggest that you wanted the signers for in-laws.

Winthrop, Winslow, Bradford, Mather, and their ilk were autocrats and authors of King Philip's War and the Salem Witch Trials. They were slavers and tyrants aligned with Cromwell, and the Confederation signed in 1643 was a religious pact to seize land and commit murder.

I only point out that the drafting of the US Constitution was not a "brow of Zeus" moment, but the culmination of a long, hard process. By analogy, I think of Arthur Koestler's The Sleepwalkers about the century between Galileo and Newton.

One of the grievances of the Declaration of Independence was that the Crown had revoked the charters of the colonies. In fact, the crown demanded the return of the Massachusetts Bay colony charter after the hanging of three Quakers. Obviously, they were unfit to rule themselves... Eventually, they figured out how...

In Maryland, Catholics and Protestants shared a church (though not at the same time) until they could have separate meeting houses. Step by step...

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In Maryland, Catholics and Protestants shared a church (though not at the same time) until they could have separate meeting houses. Step by step...

Mike, in numerous ways, as I've acknowledged privately, your scholarship exceeds mine by a wide margin. Disestablishment of the Anglican church in Virginia pitted Washington and Henry against Jefferson and Madison, truly a battle of titans, and Thomas Jefferson listed on his gravestone as one of his greatest achievements this 1779 bill, made law in 1786 immediately before the Federal Convention and a political concord to adopt separation of church and state as a first principle of the United States, a radical break with the past.

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still having trouble posting photos even from my photo bucket page ...

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