What is "Constitutional"

as learned from Thomas Paine



The following topic 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 basic principles are from Thomas Paine. I have learned from him. In addition, I have provided my own comments, which are based on Paine's discussions, but apply to modern times.


Lessons learned regarding "Constitutional" 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, and 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 at a law to see if it is "constitutional" or "unconstitutional" there are a few main principles:

• A constitution, at its most basic, 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.


Explaining the concepts further

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 is important in 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 vote as unconstitutional

• The only authority who can challenge a law or amendment as unconstitutional is the people.

No court can legally challenge the constitutionality of a law. Only the people have that authority.


• 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.


• Suppose that the opinion of the legislature is not the opinion of the people. For example, sometimes the legislature votes for a law which the people do not agree with. 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.


• What about a Supreme Court ruling (US Court or State Court ruling) which the people no longer believe in?

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


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

Mark Fennell