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by Michael Farris

The goal is to learn to think constitutionally.  And it helps to know that constitutional law is like systems engineering for law and government.  Constitutional law answers questions like: How are things designed? How should things work? Where does power come from? What are the rules?

We see the most fundamental rule of our system in the first three words of the Constitution: “We the people.”

This is not merely symbolism.

The people are the source of power.  Government has no power unless it was given to them by the people.  And, importantly, government has only that power which the people have bestowed.

The direct language of the Preamble says that “We the People… do ordain and establish this Constitution for the United States of America.”

How did the people create the Constitution? Didn’t the states create it?

It really was the people.

While we will study the details of the process of the adoption of the Constitution another time (to answer the question: Was the Constitution illegally adopted?), for now we need to only focus on the final step.

Congress had called the Constitutional Convention. It made a report and recommended a new process for its adoption. It recommended that ratification conventions be called in each state for the express purpose of approving or disapproving the proposed Constitution.

It required the approval of Congress and all 13 state legislatures to change this process. But, in fact that is exactly what happened.

Every state legislature approved the calling of a ratification convention for the state.  Twelve of the states called for a special election to select delegates to the ratification convention. Rhode Island, being dominated by my fellow Baptists, did it differently. The Rhode Island ratification convention was held in town meetings throughout the state and every voter in the state was appointed a delegate to the ratification convention.

The state legislatures did not ratify the Constitution. The Constitution was ratified by this very special process that was approved by the people themselves—either by voting for Ratification Convention delegates or by showing up for their town meetings in Rhode Island.

Everything up until this point in the process had been a recommendation only. Under the terms of Article VII, the first official act was taken by these ratifcation conventions. The Constitution was valid only when approved by these conventions with the direct sanction of the people.

It was by the authority of “We the People” that the Constitution was ordained and established—not just symbolically, but structurally.

There is a point to this history lesson.  The people are the source of power. Governments have no powers unless explicitly given by the people.

Thomas Paine accurately reflected the views of the founding generation when he wrote, in his influential work, The Rights of Man:

• “All power exercised over a nation, must have some beginning. It must either be delegated or assumed. There are no other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.”

We can also find this same idea in the first two articles of the Virginia Bill of Rights of 1776 which served as a model for the U.S. Bill of Rights fifteen years later.