Seeing the Forest for the Trees: The Two Constitutions of America

How in the world did we get here? Families struggle with the joblessness and debt left by the corporate takeover of life. They are bombarded with a mean-spirited right/left emotional tone in public debate which gets nastier by the day. All the while, “The Powers That Be” (TPTB) are full-speed ahead inventing new ways to expand laws to micro-manage the lives of everyday Americans. Who knew?

Kick the bums out! Elect leaders who care! Reform the system! Get money out of election campaigns! Protest! Amend the Constitution to get rid of human privileges by corporations! Write your Congressman! And don’t forget to vote!

But really, aren’t we simply witnessing too little too late?

The quest for political reform fails to address the source of the problem. The real culprit is the way we humans think and behave and how our behavior so often falls to the lowest common denominator of what we can get away with. The “do no harm” adage of the Golden Rule as what works in human relations holds little sway in the 21st century digital world. Instead, the mantra which rules, spoken mostly in hushed tones, goes something like, “Get as much as you can any way you can.”

Certainly we find unspeakably corrupt behavior played out in politics and business, but lo and behold, such deceitful behavior begins squarely with the lowly individual. Name-calling, lying, cheating, bullying, stealing, back-biting, character assassination and the joy of dominating others, describes a few of the choices people make at home, at work and, of course, in politics. Considered practically normal, this style of relating is the basic personal crisis of conscience justified by, “but everyone is doing it!”

The Invisible Power of Context

Americans are culturally conditioned to believe that their country is the foundation of freedom and truth and they have neither knowledge nor interest to fact-check what their leaders and media tell them. – Lawrence Davidson, professor of history, West Chester University in Pennsylvania, 2014

A country’s political and financial “container,” or context, has the power to shape and define the scope of possibilities for its people. However, we lose sight of this fact and instead focus on the problems caused by governing systems. For example, American education teaches a version of American history that consistently overlooks and under-reports certain events, particularly those leading up to and surrounding the creation of the Constitution of the United States and the U.S. Government. It was by these events that the direction of the country was forever changed in ways that departed greatly from what we have been led to believe. A universal principle is at work here: any context, political or otherwise, has overarching influence on the content within it, e.g. as does the sun on every aspect of its solar system.

In this essay, I hope to shed light on a couple of the missing pieces to the puzzle of a pivotal moment in American history. Perhaps the reader will take away a bigger picture and begin to consider how what happened then laid the foundation for the financial, political, social and personal ills faced by the 99% today, and also discover the hidden-in-plain-view remedy available for the taking.

The First Form of Governance in America

The story of America began with British colonists-turned-Americans and their individual rights and self-governance even as the American Revolution was underway. Setting the stage was the Declaration of Independence, ratified on July 4, 1776, and the first federal constitution, the Articles of Confederation and Perpetual Union, drafted mid-1776 (hereafter called the Articles or first constitution). John Dickinson of Pennsylvania penned the combined input of the delegates from each of the thirteen colonies that convened to create the Articles, America’s first governing document. It was adopted November 1777, and ratified in 1781 by all thirteen fledgling states.

In effect, this first constitution elevated the common man to the same status as that of a sovereign king, i.e. a self-governing “free inhabitant.” Each of the several states functioned autonomously within a purely voluntary and decentralized federal system. English Common Law, based on God-given “natural” law, was inherited from England as the law of the land. Thomas Jefferson, in the Declaration of Independence, discerned the existence of a new American jurisdiction and the lack of authority British King George III had over it while referring to the first American constitution:

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

The stated purpose of the new, loosely-formed Union was to fend together against foreign invasion. United under the Articles, free inhabitants of the several states were able to protect themselves in ways not otherwise possible separately. The period of 1777 to 1789 was a time of general prosperity in America as the earliest Americans enjoyed benefits of the confederation without obligation of federal citizenship.

The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever. —“The Articles of Confederation and Perpetual Union,” 1781

Not long after the 1781 ratification of the Articles, federal leaders agreed on what they saw as the many weaknesses inherent to the Articles since provisions for a supreme court, a commerce clause, the regulation of foreign trade, a standing army and the enforcement of taxation, had not been included. Over the years historians agreed the Articles were a failure, an opinion few would ever challenge.

In 1787 the Congress of the Confederation authorized that the Philadelphia Constitutional Convention could be held, however, with a resolution of specific, clearly stated limitations, “for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures.”

As they say, the rest is history. It was at the Philadelphia Constitutional Convention that the 1787 Constitution of the United States came into existence. Interestingly, most Americans believe that it was with this second constitution that the country began. Ask anyone, and most people will tell you they had little to no idea about the years of American history prior to 1787.

The Articles have been listed as one of the four Organic Laws (founding laws) of the United States of America, along with the Declaration of the United States of America, 1776, the Northwest Ordinance, 1787 and the Constitution of the United States 1787, listed at the beginning of the U.S. Code (official compilation of all U.S. laws).

The Second Form of Governance in America

As people know from experience there are two sides to any story. Yet few learn the other side of the story about America’s beginnings. The other side of the American story reveals how to many Americans at that time, the idea of the 1787 Constitution of the United States was less about “a more perfect union…of, by and for the people” and more about implementing the Federalist plan to concentrate federal power in the hands of a few.

Free inhabitants, led by the likes of Patrick Henry, feared exactly this, a centralized system reminiscent of a form of governance like that of the British Empire they had so recently escaped. Behind the cover of patriotism, it turns out that their fears were well-founded, The Constitution of 1787 and the U.S. Government it established was nothing less than a bloodless coup of the original American jurisdiction and way of life by a small group of powerful businessmen.

The short version of the coup is that at the Philadelphia Constitutional Convention the Framers of the 1787 Constitution ignored the Congress of the Confederation’s resolution allowing only revisions to the Articles. Instead, they created an entirely new (unauthorized) second constitution and in 1789 proclaimed it ratified, though by only nine states and not the thirteen, as required by the Articles. On their own terms and by their own authority, the Framers created an illegitimate constitution and instituted a U.S. Government of manmade statutory law.

The creation of this second constitution and its government slipped in under the radar of most free inhabitants because they did not have the higher education necessary (as did the Framers) to figure out what had just happened. Many believed what the Federalist Papers told them; they would be recipients of a “more perfect union” because “all power of government was with the people.”

Yet for Patrick Henry and his cohorts, the incremental erosion of freedoms and liberties upon the establishment of the new U.S. Government did not go unnoticed. Essentially, these were the structural shifts from English Common Law to manmade statutory law, and from decentralized self-governance of “do no harm” to a centralized government of compelled performance (force). Autocratic government representation reverted back to serving the interests of an elite tyranny of the minority, the wealthy landowners.

Fast forward to today and the many statutory laws and regulations such as the Patriot Act and the National Defense Authorization Act (NDAA) legalizing indefinite detention of U.S. Citizens while denying them a trial by jury. By written law, U.S. Citizens have become potential enemy combatants or domestic terrorists, i.e. enemies of the state. Who benefits?

Herein is the overarching national myth for those with ears to hear: the myth is that we live in a nation of, by, and for the people. The second constitution marked a turning point backward, not forward, for the American people because the model for the U.S. Government used by the Framers was the British Monarchy, a fact well-documented in the notes of delegates attending the Philadelphia Constitutional Convention. Rule by a few, defined as oligarchy, differs only slightly from rule by a monarchy. Oligarchy (olig-archy) offers a handful of additional rulers beyond one king (mon – archy). The late comedian Bill Hicks described it this way, “You are free to do as we tell you.”

The Good News of Territorial Jurisdiction

As mentioned above, the body of law recognized by the first constitution was English Common Law, also known as unwritten law. Whereas under the second constitution the body of law recognized was statutory law, also known as written law. A statute is written by a state or federal authority. A characteristic of all written laws is that they must identify the boundaries (physical borders) of the land it owns, within which live the people to whom (and only to whom) its laws apply, also known as territorial jurisdiction.

While the Supremacy Clause of the second constitution declares it to be “the supreme law of the land,” former attorney and law researcher Dr. Eduardo Rivera says, not so fast. He asserts that the claim of supremacy is limited to the lands within the United States territorial jurisdiction. Therefore, statutory law of the U.S. Government applies exclusively to Americans living on federally-owned lands.

In 1807, Supreme Court Justice John Marshall delivered the death blow to the authority of English Common Law in the U.S. court system. In the decision, Ex parte Bollman and Swartwout 4 Cranch 75, he stated that written law (i.e. statutory law) was the exclusive law of the United States courts. His decision confirmed that a jurisdiction is defined by written law and “cannot transcend that jurisdiction.” A common law and statutory law system could exist simultaneously as different territorial jurisdictions.

Courts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law. —Ex parte Bollman and Swartwout 4 Cranch 75 (emphasis added)

It has historically been well-established that King George III ceded his thirteen colonies to the new United States of America. Less well-known is that with the second constitution, lands that had been owned by the temporary government of the Northwest Ordinance were transferred in ownership to the newly formed United States/U.S. Government in 1789. Americans living within the borders of the Northwest Territory were, therefore, the (only) Americans subject to the statutory law of the new U.S. Government. Otherwise, the free inhabitants of the thirteen original states remained under the territorial jurisdiction of the first constitution and English Common Law by which they had been created.

What makes this period in American history so significant today? Since the Articles were never legally repealed (in writing), they not only remain valid per the Organic Laws above mentioned, but also as the governing document for current-day free inhabitants NOT living on federally-owned land. It is no surprise we were never told.

Why should you care about any of this? There’s a maxim in law that says, “Things that are different are not the same.” Apples are not oranges, right?

Apples: first constitution/decentralized several states/voluntary federal participation/ English Common Law/conscience/God-given rights

Oranges: second constitution/centralized federal government/compelled performance (force)/statutory law/commerce/manmade legislated rights (privileges)

Two totally different territorial jurisdictions exist simultaneously in America today. What Jefferson said in the Declaration of Independence about King George III being unable to subject the new Americans to a foreign jurisdiction reverberates today with a U.S. Government and its “Acts of pretended Legislation,” meaning those of a foreign jurisdiction that actually has succeeded in subjecting free inhabitants to laws that do not apply to them.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation.

Federally-Owned Lands

Federal land ownership has changed and expanded beyond the time when it was only the land inside the Northwest Territory that was federally owned. Now “the Federal Zone” is a force to be reckoned with. A government document, “Congressional Research Service: Federal Land Ownership: Overview and Data 2012” reports, “The federal government owns roughly 635-640 million acres, 28% of the 2.27 billion acres of land in the United States.” Including:

The District of Columbia
Federal Zones within States and Counties and lands of the Bureau of Land Management
Territories of the United States
U.S. and Overseas Military Bases
Foreign Embassies, Veteran’s Hospitals and U.S. Post Offices
U.S. Coastal Waters
National Parks
Most U.S. Airport Property

You Can’t Get There from Here

The number of Americans who agree that the federal system is broken and cannot be fixed is growing despite those who keep trying. A centralized U.S. Government of statutory law is largely a commercial system governed by the Uniform Commercial Code (UCC). Given the structural design and operating principles of consolidation and centralization of such a system, power thereby defaults into the hands of a few. While these principles of an overarching commercial system remain firmly intact, there can be no possibility for genuine reform. It is structurally impossible.

Libido dominante, the lust for power, coined 2000 years ago to describe the founder of the Roman Empire, Augustus Caesar, is still what drives people, and especially in a system where so much of life (including people and nature) has been commoditized. The lust for power, no matter how you slice it, unleashes the worst of human behavior that affects people and places. Individually we neglect to look in the mirror, admit culpability as imperfect creatures, and commit to making changes in the only way change can begin and take root – with ourselves. When enough of us, from “authorities” to celebrities and children, voluntarily replace self-interest with conscience as our operating principle and reclaim the willingness to “do the right thing” in any situation, only then can something collectively amazing happen for America.

It is said that power corrupts, but actually it’s more true that power attracts the corruptible. The sane are usually attracted by other things than power. – David Brin, author

Free-inhabitant Americans today have unwittingly become the beneficiaries of the lost authority of the Articles. Given the continued validity of this governing document, individuals, families and organizations can set out to reconfigure their relationship with a foreign jurisdiction of U.S. Government statutory laws that do not apply to them. In order for a renaissance of individual freedoms and liberties to take hold and be sustained, it will be because the first constitution and all it stands for has again had life breathed into it.

Please do your own research to confirm the information I have shared in this essay. May this, the other side of the American story, inspire and encourage you in ways that make a difference. Thank you for your kind attention.

Susan Boskey, alternative financial consultant, thinker, freelance researcher and writer, author of the book, The Quality Life Plan®: 7 Steps to Uncommon Financial Security www.AlternativeFinancialNow.com and was instrumental in bringing to market the book, Beyond the National Myth: waking up in the land of the free.