The following should be important to all Americans.

In recent times we often see the situation where the people pass a law, but then the law is struck down by a court. The court claims that the law is "unconstitutional." The courts are usually wrong on this matter.

Therefore, it is important to learn the truth about what is, or is not, "constitutional.

The lessons learned are from Thomas Paine


Topics in this article:

Main principles of "Constitutional"

Determining constitutionality based on how the vote is done

Challenging the law as unconstitutional

Expanding on Thomas Paine


Lessons learned are from Thomas Paine

My understanding comes from one of the greatest Constitutional scholars in history: Thomas Paine.

Thomas Paine wrote a lot about Constitutions. He not only understood constitutions in general, he also understood the US Constitution specifically.

One of the reasons that we can trust the insights of Thomas Paine is that he was a good friend with the leaders of the time.

For example, Thomas Paine and Ben Franklin were good friends. Franklin helped create the US Constitution, as well as the State Constitution of Pennsylvania. Therefore, Thomas Paine was able to learn from leaders such as Ben Franklin exactly what our Founders intended.

Main principles of "Constitutional"


When looking to see if a law is "constitutional" or "unconstitutional" there are a few main principles:

• A constitution is an agreement between the people and themselves.

• "Constitutional" is whatever the people say it is.

• The opinion of the people is made official when a specific proposal is voted on by the citizens.


Let us expand on those principles:

No matter how odd a law may seem to some citizens, if the majority of the people want a particular law, then that law, by definition, is "constitutional."

For example, suppose the people want to mandate that everyone wears a blue shirt on Tuesdays. If the issue is that important to the people, then the issue can be proposed as a law (or as an amendment), and then put to a vote.

If wearing blue on Tuesdays is very important to the people, then the majority of the citizens can vote "yes" to the proposal. That law, by definition, is now "constitutional." The law is constitutional because it is what the people want.

Even if some citizens think that being forced to wear blue on Tuesdays is a weird thing to put into law, the law must stand. The majority of people don't think it is weird. In fact, most of the people think such a law is important. Therefore, the law must be upheld as constitutional.

How the law is voted on and determining constitutionality.


1. A direct vote, by the people

Ideally, the law should be voted on by the people directly. If the people are allowed to vote on the law directly, then the opinion of the people is known with absolute certainty. Laws and amendments which are voted on directly by the people are absolutely Constitutional.


2. Vote by legislature

The logistics of government makes direct voting by the people impractical for most laws. Therefore, elected legislators vote for the people. The legislators are elected by the people, and therefore the people are in essence voting on the laws.

If the legislature votes in favor of a law, then that law must stand. This is because the people, via their elected representatives, are in favor of that law. Laws and amendments to the constitution voted on by an elected legislature are Constitutional.

Challenging the law as unconstitutional


• Authority to challenge constitutionality:

The People are the only authority who can challenge a law or amendment as unconstitutional. No court can legally challenge the constitutionality of a law. Only the people have that authority.


• If the law or amendment was voted on directly by the people:

To repeat from earlier, if the people vote on a law directly, and the majority of the people vote "yes", then that law is constitutional. No court has the right to challenge it. Furthermore, citizens in the minority view (who voted "no") cannot legally challenge a law voted directly by the people.

Those citizens who voted "no" can certainly use their freedom of speech to change the minds of others. However, the citizens who voted "no" cannot legally challenge the constitutionality of the law. The people have already voted, the majority said "yes", therefore the law remains in place.


• If the opinion of the legislature is not the opinion of the people:

Sometimes the legislature votes for a law which the people do not agree with. Similarly, sometimes the legislature votes for an amendment to the constitution which the people do not agree with. Is such a law or such an amendment constitutional?

Legally, the law or amendment is now constitutional. However, in spirit, the law might not be constitutional.

If the law or amendment is passed by the legislature, but the law does not really represent the opinion of the people, then the people have the right to challenge that law.

This law or amendment will then be voted on directly, by the citizens themselves. If the majority of citizens votes against the law, then the law will be removed. If the majority of citizens side with the legislature, and vote for the law, then the law will remain.

Ideally, the specific procedures for this mechanism should be stated in the constitution.


• If the Supreme Court makes a ruling which is not the opinion of the people:

What about a Supreme Court ruling (US Court or State Court ruling) which the people do not agree with?

The people can pass an amendment to the constitution. Whatever the people vote into law as an amendment to the constitution will automatically supersede any previous court ruling.


Again, all of these insights come from Thomas Paine. I have learned these concepts only by reading his works.

Expanding on Thomas Paine

There are a few additional concepts which Paine did not discuss, but I think are relevant.

The discussion I write here is, I believe, an extension of Paine's insights and discussions.

A. Agencies, regulations, and constitutionality of regulations

B. Mechanism for challenging law, and direct vote by the people


A. Agencies, regulations, and constitutionality of regulations

• Q1: Agencies make regulations, which have the force of law. Are these regulations constitutional?

• Q2: What if a government agency makes a regulation which the people do not like? Can these regulations be challenged?

Thomas Paine did not mention agencies or regulations. I think that those concepts are more modern, and didn't exist much in Paine's lifetime.

I am going to try to think like Thomas Paine. Using my understanding of what he wrote, I will try to write an answer to the above questions, as he might have done.


• A1: When an agency creates a new regulation, is that regulation constitutional?

Short answer: Yes

Agencies are similar to the legislature regarding constitutionality.

Each agency is given specific authorities by the legislature. It is important to remember that each agency, whether state or federal, can only do what the legislature has allowed the agency to do. These authorities are put into law.

The laws giving specific authorities to agencies are debated by the legislature, and voted into law by the legislature. The legislature is elected by the people.

It is indirect, but overall the agency's authorities are granted by the people.

Furthermore, agencies welcome input on proposed regulations. Some agencies have become more accessible, with internet access to view proposed regulations, and ability for the public to comment on proposed regulations.

Therefore any regulation made by an agency is constitutional.


A2. What if a government agency makes a regulation which the people do not like? Can these regulations be challenged as unconstitutional?

Short answer: The people can challenge any regulation by any agency as unconstitutional.

It is because of the indirect authority mentioned above that the people can challenge a regulation.

While it is true that the agencies have authority to create regulations, these are not passed directly by the people. Therefore, if there is a regulation which the majority of people do not like, then it can be challenged.

At this point, the regulation is unconstitutional in spirit. It is unconstitutional in spirit because a lot of people do not like it.

However, it is not yet legally unconstitutional. To decide that, the regulation must be put to a direct vote, where all the people can vote on it.


B. Mechanism for challenging law, and vote by the people

Thomas Paine did not discuss any details on the mechanism for challenging the constitutionality of a law.

It is clear that the people have the authority. But what about the details of making this work?

We must ask the following questions:

1. Do we have any such mechanisms for the people to challenge a law?

2. Does the US Constitution or US Code have any such mechanisms?

3. Do any of the State Constitutions or State Codes have any such mechanisms?

(I do not know the answer to any of these questions.)


Depending on the answers, then we proceed:

• If the answer is "yes", then the general public needs to become aware of those mechanisms.

• If the answer is "no", then the people need to craft some mechanisms, and pass these mechanisms into law.


I'm going to propose some general ideas on how such a mechanism might work:

a. The basic mechanism would work similarly to the mechanisms for putting propositions on the ballot. However, there should be some specific stipulations.

b. Any petition to challenge a law MUST be accompanied by an official copy of the FULL law.

We cannot have a petition which claims things about a law, but does not offer the law itself for people to read for themselves.

c. The mechanism should state a specific % of voters on the petition

d. The petition should not be time limited.

It may take a long time to get enough signatures. Therefore, signatures should be allowed to build over time until there is enough to submit the entire petition.

e. The mechanism should state how long the time will be between submission of the signatures and the vote.

The length of time might vary, depending on size of the law, and/or the size of the voting area. If the law is a long one, then people will need time to read it and discuss it. If the voting area is large, then it will take time for groups for and against to educate the people on the specifics.

f. The actual law, in full, should be made available to the public.

If the people are going to vote on whether to keep or overturn a law, then the people should have a chance to look at it.

Official copies should be printed and be made available in central libraries.

The election officials should have an official version of the law on a website. (The website must be trustworthy. If the law was just put on a group's website, we would not know if the words had been altered).


Mark Fennell