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The Birth of a Living Constitution (part 1) By Robert Marcoccio

The Birth of a Living Constitution
By Robert Marcoccio

“While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws…” Thurgood Marshal 1987

The former Supreme Court justice and leading attorney in the controversial case of Brown vs. Topeka Kansas Board of Education in 1954, Thurgood Marshal, made this statement in decline to participate in the bicentennial celebration events of 1987. His statement challenged the Constitution for (in his opinion) its faults and found it appalling to excuse the founders by celebration of this national event. His conclusion being the end does not justify the means and those that participated in the event of constitutional construction should not be honored for their achievement, but chastised for their contribution to maintaining the institution of slavery.

The Civil War may have ended the first phase of the experiment to self-rule in controversy, but to discard the document is to have become blinded to the tyranny that had come before it. In 1808 the Constitution ended the importation of slaves (Article I Section 9 Clause 1). In spite of this first step in ending slavery its reference in the Taney ruling (1857) has been twisted to declare slavery as constitutional though the article was invalidated forty nine years earlier.

Slavery was a state issue and the three – fifths mentioned was necessary only for clarity of citizenship for the calculation in population census for the use in the apportionment of state taxes owed to the federal. The calculation of population was needed to determine the enumeration of delegates and electoral votes. The three-fifths compromise was never meant to be a determination of the human genetics of Africans, but was instead an evaluation; that if a person did not participate in the political structure of a state; that the state should not have the enumeration of that subjected portion of population to gain a greater ability in the legislative process. At the same time the value of tax to be applied suggested that a person that was free and could benefit from their labor would work harder than a person that would never gain from their labor. So it was determined that for enumeration of delegates and apportionment of tax value slaves were calculated as three fifth of a person.

Other than for this purpose the federal constitution had no applicability to state affairs until after the Civil War. Essentially the ownership of slaves was confined to state constitutions. The charge that the federal constitution endorsed slavery is a myth though it lacked the ability to eradicate the institution completely.

It was the Northern states that insisted on this measurement, not as an evaluation of African human characteristic, but to define citizenship. The Southern States had argued for a whole person count because that would have given the southern states more advantage in the determination of the President and more control over the issue of slavery in Congress.

For this reason I present these controversies in political argument and place into question the validity of the concept of a “Living Constitution” that seem motivated without restraint to assail our right to self-rule. No doubt the divisiveness to violate the Constitution laid in foundation the beginnings of a subversive agenda that may have begun with the assassination of a President, and the undermining of the Constitution by the 39th and 40th Congress.

It begins with the ratification of the Thirteenth Amendment and the emancipation of the slaves. I’m not going to explorer the moral or commercial aspects of the institution, but will focus upon the political actions of the federal government from the end of the Civil War until the decision of Justice Earl Warren (1954) that elevated the Court to the equivalent of the legislative branch and by doing so reduced our God given rights to civil statutory privilege governed by the judiciary.

Here are the facts which need to be recognized for the divisiveness that was used to implant a system that serves no other function than to end self-rule and for you the reader to decide the fate of federalism and the process of democracy while the choice is still ours to make. This requires one condition: the perspective of being an American that believes the solutions to the issues of society can only be resolved by the people.

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