Examining the misconceptions of Ed Rivera

Part 1: "this Constitution" v. "the Constitution" - By Rick Rickoff

In Ed Rivera's video, What Does The Constitution Say, Rivera makes several claims based upon
unsound reasoning. One of those claims is that the President takes an oath to support a different
Constitution ("the Constitution," which he says is for the territories only) instead of taking an oath to
support "this Constitution," which is the Constitution for the United States of America. Rivera
complains that, "No President, and no member of Congress, has ever taken the Article VI oath 'to
support this Constitution.'
Indeed, while Article 6 does not stipulate the wording of oaths to be taken, it does require that, "The
Senators and Representatives before mentioned, and the Members of the several State Legislatures, and
all executive and judicial Officers, both of the United States and of the several States, shall be bound by
Oath or Affirmation, to support this Constitution." In other words, the President, an executive branch
officer, is included in the statement, "all executive and judicial Officers," and therefore the President
"shall be bound by oath or affirmation to support this Constitution." This is inarguably the truth of the
matter, so why then does the Presidential oath, as given in Article 2, Section 1, clause 9 of the organic
Constitution, not say "this Constitution, rather than the Constitution?" The oath reads, "I do solemnly
swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the
best of my Ability, preserve, protect and defend the Constitution of the United States."
"The Constitution" is mentioned only twice in the Constitution:
Article 2, Section 1, clause 9
(Presidential oath- "protect and defend the Constitution")
Article 6, clause 2
("the Constitution or Laws of any State")
The second instance is obviously talking about State constitutions, so can be disregarded in this
conversation. The first instance, the Presidential oath, therefore, is the only mention of "the
Constitution" which is in question.
"This Constitution" is mentioned 12 times in the Constitution, at the following locations:
The Preamble.
("this Constitution for the United States of America."
Article 1, Section 8, last clause.
(necessary and proper clause)
Article 2, Section 1, 5th clause.
(natural born citizen clause)
Article 3, Section 2, 1st clause.
(judicial power clause)
Article 4, Section 3, 2nd clause.
(needful rules and regulations clause)
Article 5, [appears twice]
(Amendments clause)
Article 6, paragraphs 1 [twice], 2, and 3
(debts, supreme law, oaths)
Article 7, clause 1
(ratification clause) "The Ratification of the Conventions of
nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying
the Same."
So, as we can see, Ed Rivera's argument, up to this point, would certainly appear to have some validity.
But now comes the point where his argument falls apart as simply being a misconception which is based
upon unsound reasoning. You see, the document in question was written at a time when we already had
a Constitution in operation, and that first Constitution was The Articles of Confederation.

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Indeed, in writing Federalist #1, which appeared in the Independent Journal on October 27, 1787,
Alexander Hamilton said, "After an unequivocal experience of the inefficacy of the subsisting federal
government, you are called upon to deliberate on a new Constitution for the United States of America."
This wasn't the only written record of the 1787 Constitution being referred to as a new Constitution.
The Confederation Congress also referred to the 1787 Constitution as a new Constitution:
From Journals of the Continental Congress, 1774-1789
TUESDAY, JULY 8, 1788
Page 303 | Page image
[Report of committee on new Constitution1]
So in other words, at that point in time when the new Constitution was written, The Articles of
Confederation was, quite properly, still considered as being the Constitution. Thus, in writing the new
Constitution, which would not take effect until ratified according to the requirements of Article 7, the
authors correctly made reference to the new document as being "this Constitution," in order to
differentiate the document from our earlier Constitution, the Articles of Confederation, so that there
would be no confusion as to what document people were talking about.
To better understand why the Articles of Confederation actually was a Constitution, let us examine the
meaning of Constitution as found in Black's Law Dictionary:

As can be seen, the Articles of Confederation certainly complied with this definition of a Constitution. It
was the first organic and fundamental law of our union of states, and obviously did establish the
character and conception of the federal government by establishing a Confederation Congress that was
to meet and carry out functions in the manner prescribed by that document. Thus, the Articles of
Confederation most certainly was, in a real sense, our first Constitution, and would properly have been
referred to as "the Constitution."
Now with that understood, one might still say that the Article 2 Presidential oath should properly have
been sworn to "this Constitution," rather than "the Constitution," else it would seem that the President
would be taking an oath to The Articles of Confederation. That may sound like a reasonable theory,
which still finds the new Constitution at fault, until we uncover the misconception involved with that
line of thinking.

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To correctly understand why the Presidential oath, as found in Article 2, Section 1, clause 9 of the new
Constitution used the wording, "the Constitution," we must ask ourselves a highly relevant question one which Ed Rivera obviously failed to ask himself, and that question is, when would this oath first be
taken? The correct answer to that question, of course, is that it would be taken at the time the first
President was sworn in to his office. That, of course, would not happen until after the new Constitution
had been ratified by at least 9 states as per Article 7, an election had been held, and a President had been
elected.
After being established, per Article 7, as a Constitution which had superseded and replaced the Articles
of Confederation in regards to matters of the federal government, the new Constitution then properly
became "The Constitution," the one and only Constitution for the United States of America remaining
effective. For those who would argue that the Articles of Confederation are still fully in effect, the
following should dispel that notion, and prove that argument to be baselss. The Articles of
Confederation could no longer be regarded as our Constitution, other than by expressing the distinction
of it as being our first Constitution. Portions of The Articles of Confederation which did not conflict
with the new Constitution did, and still do, remain in effect, but in all other matters the Articles of
Confederation were superseded and replaced. After all, the new Constitution did say, in Article 6
Clause 2, that this new Constitution would be the "supreme Law of the Land." Thus, from the time of
it's establishment to the present day, everyone correctly and commonly refers to the new Constitution
document as "the Constitution," and all oaths to support it have correctly been taken in that form. As
can be seen, through a clear understanding of these facts, "this constitution" and "the constitution," as
mentioned in the 1787 document prepared at the Philadelphia Constitutional Convention, are in fact one
and the same. Thus, Ed Rivera's claim that, "No President, and no member of Congress, has ever taken
the Article VI oath 'to support this Constitution'," is patently false, and is a misconception having no
basis in reality.
Please note that this is but one of Ed Rivera's misconceptions explained, and explanations of other such
misconceptions will be forthcoming. Those explanations will quite likely refer back to this explanation,
as it sets a firm foundation for correctly understanding what the Constitution really says, and dispelling
the false teachings of Ed Rivera. Surely some of Ed's teachings must have some validity, but this series
will only concentrate on those teachings which do not. Hopefully, Ed will adjust his teachings to omit
the noted misconceptions, and Ed's followers will also strike those misconceptions from their
understandings so that they may have a clearer view as to what the Constitution really says.

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