To Celebrate Constitution Day, Here Are 3 Little-Known Constitutional Rules So Based That Liberals Won’t Believe They’re Real

On Sept. 17, 1787, thirty-nine delegates at the Constitutional Convention in Philadelphia signed the draft of the United States Constitution. They then presented the finished document to the people of the 13 states for ratification.

As we mark the 239th anniversary of that document’s signing, we reflect on the current state of our constitutional system. That reflection produces a curious juxtaposition: on the one hand, a citizenry that still reveres its centuries-old Constitution; on the other hand, a political class totally unworthy of it.

Of course, the unworthiness of our political officials merely encourages us to look deeper into our Constitution. There, even in some of the most obscure passages, we find provisions calculated to keep us free. Three such passages deserve special attention.

First, in Article I, Section 8, Clause 11, we find Congress authorized to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

Though we acknowledge the sad fact that Congress has not bothered to formally declare war since World War II, and though we also acknowledge the myriad evils that have flowed from that dereliction of duty, the real curiosity here, at least for present purposes, lies in the phrase “grant Letters of Marque and Reprisal.”

In layman’s terms, letters of marque and reprisal allow the government to enlist ordinary citizens as privateers. During wartime, those privateers prey on an enemy’s commerce. The capture and subsequent sale of enemy ships and goods allows privateers to make a substantial profit. Thus, in a sense, letters of marque and reprisal temporarily legalize piracy while turning it to both public and private advantage.

How might this clause help keep us free? For that, we must think in terms of both practice and principle.

In practice, of course, the existence of federal, state, and local law enforcement makes vigilantism effectively illegal inside U.S. borders. That holds true on both land and water.

Outside the U.S., however, either in international waters or in the waters of one’s (clearly defined, as in a declaration of war) enemy, letters of marque and reprisal could, for instance, allow private citizens-turned-privateers to intercept illegal drug boats. In this case, direct payment from the government, as opposed to sale of illegal narcotics, would compensate the privateers. Meanwhile, using a special constitutional provision to enlist private citizens in their country’s defense would only bolster freedom.

Likewise, the principle underlying letters of marque and reprisal deserves serious consideration.

From ancient Athens to the Great Britain of our Founders’ era, keen observers have noted the unfortunate connection between maritime power and empire. In other words, political leaders who possess large navies cannot help themselves. They build empires, and empires erode liberty at home.

Thus, in the same way that citizen-soldiers help soothe fears of large, standing armies, privateers — citizen-sailors — provide a partial answer to the problem of large navies and their imperial consequences.

Second, under the Constitution’s Article IV, Section 4, the U.S. “shall guarantee to every State in this Union a Republican Form of Government.”

Note the use of the word “Republican.” Although capitalized in the text, this word does not refer to any political party. Instead, it refers to the form of government, republican, guaranteed to citizens of all states.

“Republican” comes from the Latin “res publica,” meaning “affair of the public.” This means that the whole public, the entire body of the people, exercises full sovereignty.

By contrast, “democracy,” as understood for millennia, meant not “popular government” but “rule of the many.”

This is a very different thing. In democracies, majorities always prevail. Democracies exist to serve the interests of the many, not to protect the rights of all.

Aristotle, for instance, in “The Politics,” identified democracy as a “perversion” of a purer form, which he called “polity.”

Think of the people in recent years who have chanted “democracy” while burning vehicles or tearing down statues. Think of the media figures who have mindlessly labeled their adversaries “threats to our democracy.” On our most hotly contested issues, are these the people we regularly find on the side of freedom? Indeed, legendary Christian apologist C.S. Lewis likened democracy to a mere “incantation” and, in that respect, a tool of Satan.

In short, the Constitution gave us a republic. Nowhere does the word “democracy” appear in that document.

Finally, the glorious 13th Amendment, which abolished slavery, contains an important exception for “involuntary servitude.”

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction,” the amendment reads.

In other words, the state may impose labor requirements on those convicted of crimes.

Republics, of course, have a special interest in punishing criminals who violate their laws. After all, those laws come not from kings but from the sovereign people. A criminal’s transgression against republican law has much deeper moral consequences than, say, violating a king’s arbitrary edict.

Thus, the 13th Amendment, while wiping away the centuries-old stain of race-based chattel slavery, took care to distinguish between those individuals unjustly enslaved and those subjected to “involuntary servitude” in the form of prison labor. The political community has imposed the latter on those judged guilty in a court of law, not for the purpose of reviving that peculiar institution but as both punishment and deterrent designed to protect the freedom of innocent and law-abiding citizens.

Remember this the next time you hear a leftist gripe about prison labor as a form of modern slavery. The two things, as the Constitution makes clear, have no relation to one another.

In short, as we mark this great anniversary, let us not overlook the myriad ways in which our Founders (and their Civil War-Era descendants) wrote their love of freedom into even the Constitution’s most obscure passages.

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